Allowed

Elizabeth Sipri v. Union of India & Another

Kerala HC15 Jul 2013WP(C)/18170/2008

Case brief

AI extract

What is this about?

The Court allowed a writ petition seeking arrears of dependant family pension for the petitioner's late husband, a freedom fighter. Relying on primary evidence of confinement, the Court modified the previously granted order to award pension from the initial application date of 20.3.1998 instead of the date of the order.

What did the court decide?

Ext.P8 order modified; petitioner entitled to pension from 20.3.1998; arrears calculated from then to 12.2.2005 to be disbursed within three months.

Elizabeth Sipri Vs Union of India & Another — Pension and Retirement Benefits | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE B.P.RAY

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MONDAY, THE 15TH DAY OF JULY 2013/24TH ASHADHA, 1935

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WP(C).No. 18170 of 2008 (K)

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PETITIONER:

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ELIZABETH SIPRI,W/O.LATE VARKEY SIPRI, KURUSINKAL VEEDU, KATTOOR MURI, KATOOR.P.O, ALAPPUZHA DT.

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BY ADV. SRI.K.K.SATHEESH

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RESPONDENTS:

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1. UNION OF INDIA, REPRESENTED BY THE DEPUTY SECRETARY TO GOVT., MINISTRY OF HOME AFFAIRS, F.F. DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI - 110 003.

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2. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT., GENERAL ADMINISTRATION, (FFP.A) DEPARTMENT, THIRUVANANTHAPURAM-695 001

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R1 BY ADV. SRI.GEORGE JOSEPH, ADDL.CGSC SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR R2 BY GOVERNMENT PLEADER SMT. MAYA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C)NO.18170/2008

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE TRUE EXTRACT OF THE CONVICT REGISTER OF CENTRAL PRISON, TRIVANDRUM ISSUED BY THE SUPDT. ALONG WITH A COVERING LETTER VIDE NO.CP5-272/71 DATED 28/9/1972

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P2 COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA VIDE ORDER NO.R.DIS.23896/72 DATED 5/12/1973

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P3 COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 16/4/1974 TO THE PETITIONER'S LATE HUSBAND.

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P4 COPY OF THAT APPLICATION SUBMITTED BY THE PETITIONER'S LATE HUSBAND TO THE RESPONDENTS DATED 20/3/1998

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P5 COPY OF THAT APPLICATION SUBMITTED BY THE PETITIONER TO THE RESPONDENTS DATED 24/7/2000

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P6 COPY OF THE AFFIDAVIT DULY ATTESTED BY THE JFCM COURT, ALAPPUZHA DATED 5/8/2000

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P7 COPY OF THE LETTER NO.6/1/97FF(P) DATED 7/4/2003 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.

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P8 COPY OF THE ORDER NO.52/CC/K/63/2008-FF (SZ) DATED 31/8/2010 ISSUED BY THE 1ST RESPONDENT.

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RESPONDENT'S EXHIBITS:

NIL

/TRUE COPY/

P.S.TO.JUDGE

sts

B.P. Ray, J.

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W.P.(C)No.18170/2008

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====================================

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Dated this the 15^th day of July, 2013.

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JUDGMENT

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Heard the learned counsel for the petitioner, the learned Central

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Government Standing Counsel Sri.George Joseph and the learned Government Pleader.

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During the pendency of the above writ petition, Ext.P8 order dated 31.8.2010 was passed granting the benefit of dependant family pension under the “Swatantrata Sainik Samman Pension” Scheme with effect from 12.2.2005. Hence, the petitioner filed the amended writ petition seeking relief to disburse the arrears of said pension payable pursuant to Ext.P8 order with effect from the date of Ext.P4 application dated 20.3.1998 submitted by the petitioner's late husband, who was the freedom fighter. The learned counsel for the petitioner submits that the stand taken by the 1^st respondent confining the pension as payable only with effect from 12.2.2005 instead of 20.3.1998 is not correct and proper. Reliance is placed on the

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-:2:-

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judgment passed by the Apex Court in Mukund Lal Bhandari and others v. Union of India and others reported in (A.I.R. 1993S.C.2127) and also a decision rendered by the Division Bench of this Court in Union of India v. Radhamony reported in (2005 (4)

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K.L.T. 27) in support thereof.

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In the present case, it is very much obvious that the sufferings of the deceased husband of the petitioner who was the freedom fighter in the jail is authenticated by the 'primary evidence' i.e. jail certificate issued by the Superintendent of Central Prison, Trivandrum in respect of the confinement. There is no dispute on the factual position in the counter affidavit. This being the position, the pension that has been given under the aforesaid Scheme, by passing Ext.P8 order is on the basis of 'primary evidence' i.e. jail certificate and not on the basis of secondary evidence of 'co-prisoner's certificate' and hence it is not by extending any benefit of doubt so as to restrict the benefits by giving effect only from the date of the order/judgment as stipulated by the Apex Court in Union of India v. Kaushalya Devi

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reported in 2007(9) SCC 525). The said decision itself is an authority that, if the suffering is proved by 'primary evidence', the claimant is entitled to have the benefit with effect from the date of the application itself, as held by the Apex Court in Mukund Lal's case. In view of the authoritative pronouncement of this Court in Puthusseri Valiya Veettil Thambayi Amma v. Union of India and another reported in (2011 (2) KHC 891) and of the Apex Court in Kaushalya Devi's case as well as Mukund Lal's case, the beneficiary is entitled to have the pension with effect from the date of application, when the claim is supported by 'primary evidence' i.e. the jail certificate unlike other cases sought to be substantiated by secondary evidence, where it shall be with effect from the date of the order. In the instant case, since the claim is substantiated on the basis of the primary evidence i.e. Ext.P1 jail certificate, it has to be from the 'date of the application' and non-receipt of the State recommendation shall not stand in the way as made clear by the Apex Court in the aforesaid decisions.

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-:4:-

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In the above facts and circumstances, I have no hesitation to hold that for the laches on the part of the State Government, the petitioner should not suffer. The petitioner is entitled to pension from the date of application, i.e., from 20.3.1998 onwards and Ext.P8 order will stand modified to the said extent. The arrears for the period from 20.3.1998 to 12.2.2005 shall be calculated and disbursed to the petitioner as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.

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Writ petition is allowed accordingly.

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B.P. Ray, Judge.

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sl.

Elizabeth Sipri v. Union of India & Another

Case brief

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Elizabeth Sipri v. Union of India & Another

Case brief

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