Dismissed

Union of India v. Smt.P.v.Thomas

Kerala HC21 Feb 2018WA/1769/2015

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a writ appeal by the Union of India challenging a Single Judge's order granting pension to a freedom fighter. The court held that technical objections raised by the Centre were invalid and urged a humane approach given the applicant's advanced age and the elapsed time since independence. The appeal was dismissed.

What did the court decide?

The appeal was dismissed; the judgment of the Single Judge allowing the freedom fighter's pension application was upheld.

Union of India Vs Smt.P.v.Thomas — Pension and Retirement Benefits | Kerala HC (2018)

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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.SURENDRA MOHAN &

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939

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WA.No. 1769 of 2015 IN WPC. 5938/2013

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AGAINST THE JUDGMENT IN WP(C) 5938/2013 of HIGH COURT OF KERALA DATED 18-03-2015

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APPELLANT/ 1ST RESPONDENT :

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UNION OF INDIA, REPRESENTED BY THE SECRETARY TO HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI.

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BY ADV.SRI.S.KRISHNAMOORTHY, CGC

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RESPONDENTS/ PETITIONER/ RESPONDENTS 2 & 3 :

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1. SMT.P.V.THOMAS,

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PANACKAL HOUSE, CATTLE MARKET ROAD, PERUMBAVOOR P.O., ERNAKULAM DISTRICT, KERALA – 683 542.

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

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3. THE DISTRICT COLLECTOR,

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ERNAKULAM.

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R1 BY ADVS. SRI.P.ALI SRI.A.MUHAMMED HASHIM

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R2 & R3 BY GOVERNMENT PLEADER SMT.POOJA SURENDRAN

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

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RKM

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K. SURENDRA MOHAN & ANNIE JOHN, JJ.

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W.A.No. 1769 of 2015

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Dated this the 21^st day of February, 2018

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JUDGMENT

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Surendra Mohan, J.

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The Union of India is in appeal against the judgment of the learned Single Judge dated 18.03.2015 in W.P.(C).No.5938 of 2013. The matter relates to the grant of pension to the first respondent under the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as “the Pension Scheme”, for short). He had submitted an application for the grant of Freedom Fighter's Pension from the appellant, in the year 2000. According to him, he had to go into hiding during the period from September 1946 to August 1947. He is a recipient of the State Freedom Fighter's Pension. He submitted an application for pension in the prescribed form on 07.09.2000. His application was supported by the Personal Knowledge Certificate (PKC) of permanent Freedom Fighters like Sri. Ontaman Ayyappan, late Justice T. Chandrasekhara Menon, late Sri.P.P. Wilson, Ex.MLA and Sri. P. Govinda Pillai, Ex.MLA, late Sri.G.S. Dharasingh, late Sri. Damodaran Potti, Ex. Former Minister.

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According to the first respondent, he had to go into hiding to evade arrest. Though an application was submitted to the State Government for the issue of a certificate supporting the claim of

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W.A.No. 1769 of 2015

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the first respondent, no such certificate was issued. Finally, the first respondent filed W.P.(C).No.19695 of 2010 for necessary reliefs. The said writ petition was finally disposed of by Ext.P1 judgment dated 12.01.2012. In the said writ petition, he challenged the orders by which his claim for pension was rejected. Two reasons were put forward by the authorities for not recommending his case to the Central Government. The first reason was that, the person who had issued the Personal Knowledge Certificate had not suffered imprisonment for two years. The second reason was that, the Non-Availability of Records Certificate (NARC) did not reflect that the first respondent was an accused. This Court found on the basis of the decision in Narayana Pillai v. State of Kerala [2009 (3) KLT 351] that it was not necessary for the certifier to have suffered imprisonment for a period of two years or more. It was sufficient that he had been sentenced for imprisonment for a period of two years. The certifier Sri.Ontaman Ayyappan had been sentenced to imprisonment for two years. Therefore, the said certificate was found to be sufficient. Since no records were available to show that the first respondent was an accused in a criminal case, this Court found that a proper NARC in the prescribed form issued after consulting various departments would be sufficient. Accordingly, the writ petition was allowed. The impugned orders were set aside

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W.A.No. 1769 of 2015

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and the 2^nd respondent was directed to issue fresh certificates after hearing the concerned parties. Accordingly, fresh certificates were issued. However, on a consideration of the said certificates also, as per Ext.P3, the application of the first respondent was rejected. It was challenging Ext.P3 that W.P.(C).No.5938 of 2013 was filed by the first respondent.

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The writ petition was contested by the first respondent. Though the recommendation of the State Government was mandatory, the same was not binding on the Central Government and it was open to the authorities to consider the documents produced and to take an independent decision in the matter. The fact that the first respondent was receiving pension from the Government of Kerala was not sufficient to entitle him to claim pension from the Central Government under the Pension Scheme.

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The learned Single Judge considered the respective contentions, found that what has been done in Ext.P3 was to evaluate the certificates produced, in the manner in which an appellate authority considers an appeal and to reject the same. Since records of the relevant period were not available, it is found that the certificate issued by the State Government ought to have been relied upon for the grant of pension to the first respondent. In

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the said view of the matter, the writ petition has been allowed. The first respondent has been directed to sanction pension to the petitioner on the basis of Ext.P2 recommendation within a period of one month. This appeal is filed by the Union of India aggrieved by the said judgment.

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According to the learned counsel for the appellant, in view of the dictum of this Court in Union of India and Others v. Lennyamma and Others [2012 (3) KHC 341 (DB)] , particularly in Paragraph 63 thereof, the appellant was entitled to consider the veracity of the documents on the basis of which the State Government had recommended sanction of pension to the first respondent. It is contended that, the PKC on the basis of which the NARC was issued by the State Government were all documents on which no reliance could be placed under the pension scheme. It was open to the Central Government to even make further enquiries if it was found necessary. Therefore, it is contended that there were absolutely no grounds to interfere with Ext.P3. For the above reasons, it is contended that the judgment of the learned Single Judge is required to be interfered with and set aside. Placing reliance on the decision in Union of India and Another v. Kaushalaya Devi [2007 (9) SCC 525] it is contended that even in the event of this Court coming to a conclusion that the first

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respondent was entitled to pension, the same could be granted only from the date of sanction of such pension. We have also heard the learned Government Pleader.

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In the first place, we notice that the first respondent even at the time of filing the writ petition was aged 88 years. He is likely to be about 92 years old at present. He is admittedly a person, who is receiving Freedom Fighter's Pension from the State Government. Therefore, it is reasonable to conclude that he is a person who had participated in the freedom struggle. It is necessary to bear in mind that, seven decades have passed since we got independence and that the Freedom Fighters form a fast diminishing class. They are persons, who had participated in the freedom struggle when they were young, without expecting anything in return. It is also necessary to bear in mind the fact that the freedom that we enjoy today is the fruit of their sacrifices. The pension that is offered to them can neither be a reward nor recompense for the great sacrifice made by them. The grant of such pension is only a gesture of recognizing their deeds and respecting their sacrifices. Therefore every application for the grant of such pension should be considered in the above perspective. However, it is necessary that ineligible applications should be rejected. But at the same time, while considering an application for

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such pension, it is necessary to bear in mind the fact that, authentic records and clinching evidence in support of such claims would be unavailable at this length of time. Therefore, the proper approach would be to find out whether there are sufficient materials to justify a conclusion that the claim is not bogus.

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In the present case, this Court has in Ext.P1 judgment held that the certificate issued by Sri.Ontaman Ayyappan was sufficient for the reason that he was a person, who had been sentenced to imprisonment for two years, though there are no records to prove that he had suffered imprisonment for a period of two years. The said finding has become final and binds the appellant also. The second objection that was considered by the Court in Ext.P1 was whether the NARC could be accepted since it was not found to be in the proper form. This Court directed a proper NARC to be submitted. It is not in dispute that the present NARC certificate is in the proper form. The State Government has certified that there are no records available in respect of the criminal case before the Magistrate Court, Perumbavoor. We notice that, the persons who have issued the Personal Knowledge Certificate are reputed freedom fighters and one among them, late Justice Sri. T. Chandrasekhara Menon, a former Judge of this Court. The said certificate can certainly be relied upon to find that the

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claim of the first respondent herein was not a bogus one. Therefore, instead of rejecting his claim on the basis of technical objections, we are of the opinion that the claim ought to have been allowed. Though it is true that the appellant has got the authority to consider the records produced, independently of the recommendation of the State Government, a perusal of Ext.P3 shows that the objections raised are only technical. Therefore, the same has been rightly set aside by the learned Single Judge.

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The first respondent has been running after the authorities from the year 2000. At this advanced age in his life, it is absolutely necessary that a humane approach is adopted to the entire issue. It is only appropriate that he is paid the pension for which he would be in dire need at this stage of his life, without further delay. We are not satisfied that any interference with the judgment appealed against is called for .

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For the foregoing reasons, this appeal is dismissed.

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Sd/-

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K. SURENDRA MOHAN JUDGE

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Sd/- ANNIE JOHN JUDGE True Copy

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PA to Judge

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RKM

Union of India v. Smt.P.v.Thomas

Case brief

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Union of India v. Smt.P.v.Thomas

Case brief

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