High Court Kerala High Court

Suharakunju vs Union Of India on 16 November, 2010

Kerala High Court
Suharakunju vs Union Of India on 16 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 165 of 2005(T)


1. SUHARAKUNJU, W/O.LATE MOHAMMED
                      ...  Petitioner

                        Vs



1. UNION OF INDIA, REP. BY THE SECRETARY
                       ...       Respondent

2. THE STATE OF KERALA, REP. BY THE

                For Petitioner  :SRI.N.DHARMADAN (SR.)

                For Respondent  :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :16/11/2010

 O R D E R
                      ANTONY DOMINIC, J.

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                  W.P.(C) No. 165 of 2005 T
            ```````````````````````````````````````````````````````
         Dated this the 16th day of November, 2010

                           J U D G M E N T

Petitioner is the widow of late Sri. Mohammed

Aboobacker Labba. Late Sri.Labba was a freedom fighter who

actively participated in the freedom struggle in the erstwhile

Travancore State. Ext.P1 order shows that he was a recipient

of pension under the Kerala Freedom Fighters’ Pension

Scheme. Averments in the writ petition also show that

recognising him as a freedom fighter, the Government of India

awarded ‘Thamra Pathra’ to him.

2. During his life time, on 03-12-1973, Sri.Labba

submitted Ext.P2 application for the grant of pension payable

under the Swatantrata Sainik Samman Pension Scheme. The

application was kept pending and meanwhile, Sri.Labba

breathed his last on 11-09-1979. Petitioner, his wife, pursued

the matter by filing various representations, one of which is

Ext.P3. Eventually the claim made by Sri.Labba was rejected.

W.P.(C) No.165/05
: 2 :

That order of rejection was challenged before this Court in

O.P.No.28531/2000. That Original Petition was disposed of by

this Court as per Ext.P6 judgment. In Ext.P6 judgment, taking

note of the submission that Sri.Labba was convicted to

undergo imprisonment in connection with the freedom

struggle for a period of six months and that the certificate that

Sri.Labba had undergone actual imprisonment of only two

months alone did not disqualify him, and that the case dealt

with by this Court in W.A.1717/2000 was identical, this Court

held that the order rejecting the claim made by Sri.Labba was

unsustainable and directed that his claim shall be

reconsidered by the Government of Kerala, on a

representation to be filed by his wife in that behalf. Petitioner

states that accordingly she submitted Ext.P7 representation.

Pursuant to the directions of this Court in Ext.P6 judgment,

based on the representation filed, the claim of the petitioner

for pension was reconsidered and was rejected by Ext.P8

order passed by the third respondent. Based on Ext.P8, the

W.P.(C) No.165/05
: 3 :

Government of India passed Ext.P9, rejecting the claim of the

petitioner on the ground that there was no positive

recommendation of the State Government which, according to

the first respondent, is a mandatory requirement for

consideration of the claim for grant of pension. It is

challenging Exts.P8 and P9 and also for a direction to the

respondents to extend to the petitioner the benefit of SSSP

Scheme, this writ petition is filed.

3. The first respondent has filed a counter affidavit

contending mainly that in the absence of the mandatory

positive recommendation from the second respondent, they

are not in a position to grant the benefit of pension claimed by

the petitioner. In the counter affidavit filed by the second

respondent, the second respondent has accepted that the

petitioner is a beneficiary of the State Pension and that the

deceased was awarded ‘Thamra Pathra’. However, the

second respondent has stated that as per jail records, the

petitioner’s deceased husband had undergone imprisonment

W.P.(C) No.165/05
: 4 :

only for about two months, during the period from 27-01-1118

ME to 22-03-1118 ME. It is, therefore, contended that since

the deceased did not undergo imprisonment for the minimum

specified six months period, they were not in a position to

recommend his case for pension under the Central Scheme. It

is on this ground, the second respondent seeks to justify

Ext.P8 order.

4. Learned senior counsel for the petitioner contended

that the petitioner’s deceased husband being a genuine

freedom fighter, ought not have been denied the benefit of

Central pension. According to the learned senior counsel,

although the deceased was convicted and sentenced to

imprisonment for a period of more than six months, he was

released prematurely by extending the benefit of an amnesty

scheme, which was not granted based on any apology

tendered by him. It is stated in such circumstances, applying

the principles laid down in the judgments in Pappu Kesavan

Vs. Union of India [1996 (2) KLT 1035], Bhaurao Dagdu

W.P.(C) No.165/05
: 5 :

Paralkar Vs. State of Maharashtra and others [AIR 2005 (3)

SC 3330] and Narayana Pillai Vs. State of Kerala [2009 (3)

KLT 351], the petitioner’s claim ought to have been accepted.

5. I heard the learned Government Pleader and the

learned Standing Counsel appearing for the first respondent

also, who reiterated their plea as contained in the counter

affidavits filed.

6. It is an admitted fact that the deceased husband of

the petitioner was recognised as a freedom fighter. He was

also granted pension under the State Scheme evidenced by

Ext.P1 order. It is also an admitted fact that recognising him

as a freedom fighter, the deceased was awarded ‘Thamra

Pathra’. It is also undisputed fact that during the period from

27-01-1118 ME to 22-03-1118 ME, the deceased had

undergone imprisonment in connection with the freedom

struggle. Question is, despite the aforesaid facts, whether the

claim of the petitioner for pension under the Central Scheme

should have been negatived by the respondents. As already

W.P.(C) No.165/05
: 6 :

seen, it is the specific case of the petitioner that the deceased

was convicted and sentenced to undergo imprisonment for

more than six months. Although it is a fact that the petitioner

has not produced documents evidencing that the conviction

was for the period as claimed or to substantiate her plea that

the deceased was released from imprisonment on account of

an Amnesty scheme then implemented, Ext.P4 certificate

issued by the Superintendent of the Central Prison,

Thiruvananthapuram dated 05-07-2000 shows that though a

certificate was issued to the petitioner’s husband, certifying

the imprisonment he had undergone, the Superintendent is

presently not in a position to issue any certificate for the

reason that the convict register for the relevant period has

been received irrecoverably and, therefore, the genuineness

of the documents cannot be verified. Therefore, it is a case

where it is practically impossible for the petitioner to secure a

fresh certificate from the jail authorities.

7. It is also the specific case of the petitioner that a

W.P.(C) No.165/05
: 7 :

person who had undergone along with the deceased and who

was released along with him has already been granted

Freedom Fighters’ Pension, pursuant to the judgment of this

Court in O.P.No.7068/1999 filed by the aforesaid person, viz.,

Sri.R.Sankar Warrier. It is seen from the aforesaid judgment

that the Union of India had filed W.A.No.1717/2000 which was

dismissed by the Division Bench of this Court as per Ext.P10

judgment rendered on 26-09-2000. In that judgment, dealing

with facts, which are identical in nature, this Court has held as

follows:-

” The Swatanthrata Sainik Samman Scheme

for pension is promulgated with the intention

of benefiting those who bonafidly participated

in the freedom struggle. It was not in the

expectation of those person that pension will

be paid to them as they took part in the

struggle. They took part in the freedom

struggle on their own volition. They were

imprisoned and they were behind the bars.

The scheme directs that persons should have

undergone imprisonment for 6 months. But as

W.P.(C) No.165/05
: 8 :

per the scheme those who were released

prematurely will be also be entitled to

pension provided the release was not on the

basis of apology. The respondent has clearly

stated that he was not released on the basis of

apology. From Ext.P7 it is clear that the

records are not available. In the light of the

above facts, we uphold the judgment of the

learned single judge. Two months time is

granted from today to comply with the

direction to pay pension to the petitioner in

the OP.”

8. Therefore, if a person who had undergone

imprisonment along with the petitioner’s husband and

released along with him has been extended pension pursuant

to the directions in Ext.P10 judgment, I see no reason why a

different treatment should have adopted by the respondents in

the case of the deceased husband of the petitioner alone.

Further this Court also held non availability of the certificate

shall not be a ground to deny the benefit.

9. As rightly pointed out by the learned senior counsel

W.P.(C) No.165/05
: 9 :

for the petitioner, in various judgments including Pappu

Kesavan Vs. Union of India [1996 (2) KLT 1035], Bhaurao

Dagdu Paralkar Vs. State of Maharashtra and others [AIR

2005 (3) SC 3330] and Narayana Pillai Vs. State of Kerala

[2009 (3) KLT 351], this Court and Apex Court has repeatedly

highlighted the approach to be adopted in a case of this

nature. It has been held that the freedom fighters should be

treated with reverence and that genuine claims should be

liberally considered. In my view, these principles are fully

applicable in the case of the claim made by the petitioner and

therefore, in the light of the material available, I am satisfied

that the claim made by the petitioner deserves acceptance.

10. Reference was also invited to the judgment of this

Court in OP.No.10501/1997 where a learned Judge of this

Court had upheld a claim for pension relying mainly on the

`Thamra Pathra’ awarded to the claimant therein. Here also,

the deceased husband of the petitioner has been awarded

`Thamra Pathra’.

W.P.(C) No.165/05
: 10 :

11. Thus, on an over all consideration of the matter, I

feel that the reasoning of the second respondent in Ext.P8

order, rejecting the application on the ground that the

petitioner’s deceased husband had undergone imprisonment

only for two months and that his release was not on an

apology is too technical to be upheld by this Court. I,

therefore, quash Ext.P8 and consequently, Ext.P9 issued by

the first respondent is also set aside.

12. There will be a declaration that the petitioner’s

deceased husband is entitled to get pension under the SSSP

Scheme of the first respondent. It is directed that the first

respondent shall disburse the benefits due under the scheme

to the petitioner within two months of receipt of a copy of this

judgment.

Writ petition is disposed of as above.

Sd/-

(ANTONY DOMINIC, JUDGE)
aks

// True Copy //

P.A. To Judge