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K.G.Viswappan v. Union of India

Kerala HC21 Nov 2017WP(C)/15040/2012

Case brief

AI extract

What is this about?

This writ petition contested the Ministry's order denying pension arrears from the application date, despite primary evidence of freedom fighter status. The court held pension must be granted from the application date and directed arrears payment to petitioners as heirs.

What did the court decide?

Impugned order set aside; petitioners as legal heirs to receive arrears of pension between 11.04.2005 and 30.11.2007.

K.G.Viswappan Vs Union of India — Pension and Retirement Benefits | Kerala HC (2017)

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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 K.VINOD CHANDRAN

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TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939

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WP(C).No. 15040 of 2012 (D)

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PETITIONERS :

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K.G.VISWAPPAN,

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S/O. LATE G. SARADA GANGADHARAN, 'THIRUVATHIRA', PATHIRAPPALLY P.O., ALAPPUZHA-688521.

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K.G.JANAYITHREE,

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D/O. LATE G.SARADA GANGADHARAN, W/O.BAHULEYAN, KOOTTUNGAL HOUSE, BHAVAN JN,. AVALOOKUNNU P.O., ALAPPUZHA-688066.

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K.G.PONNAPPAN,

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S/O. LATE SARADA GANGADHARAN, KOOTTUNGAL HOUSE, K.S.I.WARD, BAZAR P.O., ALAPPUZHA-688013.

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BY ADV. SRI.K.K.SATHIESH

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RESPONDENT :

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UNION OF INDIA, REPRESENTED BY THE DEPUTY SECRETARY, MINISTRY OF HOME AFFAIRS, F.F.DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-110003.

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BY ADV. SRI.N.NAGARESH, ASG OF INDIA BY ADV. SRI.S.KRISHNAMOORTHY, CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 15040 of 2012 (D)

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APPENDIX

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PETITIONERS' EXHIBITS:-

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EXT.P1	COPY OF THE JAIL CERTIFICATE ISSUED BY THE SUPDT. OF CENTRAL PRISON, THIRUVANANTHAPURAM DTD.11.8.05.
EXT.P2	COPY OF THE APPLICATION DTD.26.4.72 SUBMITTED BY LATE FREEDOM FIGHTER.
EXT.P3	COPY OF THE LETTER ISSUED BY THE RESPONDENT ACKNOWLEDGING THE RECEIPT OF APPLICATION VIDE LETTER No.19(516)/72-FF.II DTD.OCTOBER, 1972.
EXT.P4	COPY OF THE OFFICE ORDER No.52/CC/K/63/2005/FF-SZ DTD.3.11.05 ISSUED BY THE RESPONDENT.
EXT.P5	COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS' FATHER FOR SSS PENSION DTD.21.4.1998.
EXT.P6	COPY OF THE JUDGMENT DTD.24.8.07 PASSED BY THIS COURT IN W.P.(C)No.32481/2006.
EXT.P7	COPY OF THE ORDER No.52/CC/K/35/2008-FF(SZ) DTD.20.8.08 ISSUED BY THE RESPONDENT.
EXT.P8	COPY OF THE ORDER No.52/CC/K/43/2002-FF(SZ) DTD.14.12.04 ISSUED BY THE RESPONDENT.
EXT.P9	COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT DTD.19.4.10.
EXT.P10	COPY OF THE JUDGMENT DTD.13.2.12 PASSED BY THE DIVISION BENCH OF THIS COURT IN W.P.(C)No.18082/10.
EXT.P11	COPY OF THE ORDER No.52/CC/K/110/2010-FF(SZ) DTD.8.5.12 ISSUED BY THE RESPONDENT.

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RESPONDENTS' EXHIBIT:-

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EXT.R1(a) COPY OF THE SALIENT FEATURES OF SSS PENSION SCHEME, 1980.

True copy

P.A.to Judge

skj

K. VINOD CHANDRAN, J

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- - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No.15040 of 2012 D

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Dated this the 21^st November, 2017

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J U D G M E N T

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The petitioners are legal heirs of a deceased

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freedom fighter by name Bava Gangadharan. The father of the petitioner's had participated in the Punnapra Vayalar Struggle and was also imprisoned. The father of the petitioner's, while he was alive had applied as per Ext.P5 dated 21.04.1998. However, he died in the year 2002. The wife of the deceased freedom fighter took up the matter and again made an application dated 11.04.2005. The wife of the deceased freedom fighter also moved this Court with a writ petition which was disposed of by Ext.P6. This Court by Ext.P6 directed consideration of the application submitted by the freedom fighter and also directed consideration as to whether the pension can be granted from 21.04.1998, the date on which the application was

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made by her husband. The petitioner also relies on Ext.P4

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WPC.No. 15040/2012

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: 2 :

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issued by the Ministry of Human Affairs to contend that

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the sanction of the pension has to be made from the date of order which included the movements under the Swatanthratha Sainik Samman Pension 1980 or from the date of receipt of application.

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The learned Central Government Standing Counsel Sri. S.Krishnamoorthy submits that the application filed on 21.04.1998 was not processed since it was not forwarded with a recommendation by the State Government. It was the wife who produced the primary evidence by an application in 2005. Hence the pension was granted from the date of receipt of the application at the Ministry.

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The wife of the deceased freedom fighter had again approached this Court with a writ petition which was disposed of by a Division Bench, by Ext.P10 judgment. The Division Bench noticing the decision of the Hon'ble Supreme Court in Union of India v. Kaushalaya Devi (2007 (9) SCC 525) directed consideration of the claim

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WPC.No. 15040/2012

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: 3 :

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raised by the wife of the deceased freedom fighter. The Ministry considered the same and rejected it by Ext.P11 which is impugned herein.

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Admittedly, there was primary evidence of extract of convict register produced by the wife before the Ministry along with the application dated 11.04.2005. The order produced at Ext.P4 requires the sanction of pension from the date of the order including a particular movement as a freedom movement or from the date of receipt of the application itself. The judgment of the Hon'ble Supreme Court also indicates that only in cases where there is a benefit of doubt and claim being allowed on the basis of secondary nature of evidence could there be a restriction of grant of pension from the date of sanction. In the present case it is not secondary evidence which prompted the sanctioning of Pension. Ext.P11 itself indicate that the primary evidence of true extract of convict register from the Central Prison Thiruvananthapuram was appended with the application of the deceased freedom

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WPC.No. 15040/2012

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fighter's wife dated 11.04.2005. In such circumstance going by Ext.P4 office order the pension has to be granted from

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the date of application and not from the date of receipt at the Ministry. The delay which occurred in the State Government recommending the pension cannot stand in the way of the freedom fighter or his wife from their due entitlement as ordered in Ext.P4. In such circumstance, Ext.P11 would stand set aside. Now the freedom fighter's wife is also no more. It is declared that the petitioners who are the legal heirs of the deceased freedom fighter would be disbursed the arrears of pension between 11.04.2005 to 30.11.2007 within a period of three months from the date of

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receipt of a certified copy of this judgment, on producing a legal heir ship certificate.

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Writ petition is disposed of. No costs.

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Sd/- (K. VINOD CHANDRAN, JUDGE)

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jma

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//true copy//

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P.A to Judge

K.G.Viswappan v. Union of India

Case brief

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K.G.Viswappan v. Union of India

Case brief

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