Remanded

Vilasini Velayudhan v. the Union of India

Kerala HC7 Aug 2018WP(C)/11859/2010

Case brief

AI extract

What is this about?

In W.P.(C).No. 11859/10, the Kerala High Court set aside orders rejecting a freedom fighter widow's pension claim under the Central scheme. The Court held that the State Government failed to perform its duty to issue Non-Availability Certificates (NARC) and directed authorities to verify records and reconsider the claim afresh.

What did the court decide?

Impugned orders Ext.P-6 and P-13 set aside; petition remitted for fresh consideration of pension claim and issuance of NARC by State authorities within specified timelines.

Vilasini Velayudhan Vs the Union of India — 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 ALEXANDER THOMAS

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TUESDAY ,THE 07TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940

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WP(C).No. 11859 of 2010

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PETITIONER/S:

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VILASINI VELAYUDHAN, AGED 83 YEARS THEKKENIVARTHIL, VARANAM P.O., CHERTHALA.

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BY ADV. SRI.J.OM PRAKASH

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RESPONDENT/S:

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1 THE UNION OF INDIA THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI.

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2 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT,, THIRUVANANTHAPURAM.

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Addl.3 THE DISTRICT COLLECTOR, ALAPPUZHA.

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Addl.4 THE SUPERINTNEDNET OF POLICE, ALAPPUZHA. R3 AND R4 WERE SUO MOTU IMPLEADED ON 7.8.2018.

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SRI.N.NAGARESH, ASGI FOR R1 SRI.JESTIN MATHEW, FOR R2 TO R4.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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================== W.P.(C).No. 11859 of 2010

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

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Dated this the 7^th day of August, 2018 J U D G M E N T

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The petitioner, who is the widow of a person, who had remained

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for more than six months, on account of his involvement in criminal

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case (PE 7/1122 on the file of the Special Magistrate Court, Alappuzha) due to his involvement in the Punnappra-Vayalar struggle, is aggrieved by the impugned Ext.P-12 proceedings dated 26.7.2010 issued by the 1^st respondent Union Government and the Ext.P-13 proceedings dated 10.12.2009 of the 2^nd respondent State Government, whereby the claim of the petitioner for grant of freedom fighter's family dependent pension under the Swatantrata Saink Samman Pension Scheme, 1980, has been rejected. The prayers in this Writ Petition (Civil) filed on 5.4.2010 are as follows:

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“i. issue a writ of certiorari calling for the records relating to Ext.P-6, P-12 and P-13 and quash the same.

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ii. issue a writ of Mandamus directing the 2^nd respondent to issue the NARC in the prescribed form along with its recommendation on the basis of the Exts.P 18 and P-19 letters and direct the first respondent to dispose of the Ext.P-1 application afresh and grant pension from the date of receipt of the Ext.P-1 application.

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iii. direct the respondents to pay cost the petitioner.

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iv. Grant such other further reliefs which this Hon'ble Court deems fit to grand under the circumstances of the case”

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Heard Sri.J.Omprakash, learned counsel appearing for

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W.P.(C)11859/10 - : 3 :-

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the petitioner, Sri.N.Nagaresh, learned Assistant Solicitor General appearing for R-1 Union of India and Sri.Jestin Mathew, learned Government Pleader appearing for respondents 2 to 4.

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The case of the petitioner is that her husband was arrayed as an accused in PE 7/1122 ME on the file of the Special Magistrate Court, Alappuzha, on account of his involvement in the PunnapraVayalar struggle and that he had to remain underground for more than 11 months as warrant of arrest was issued against him and that therefore the petitioner's husband, Sri.A.V.Velayudhan, was eligible for the grant of pension under the Central scheme, etc. It appears that the claimant, A.V.Velayudhan had died before the 1^st respondent Union Government issued proceedings dated 20.1.1998 ordering to treat the Punnappra-Vayalar struggle as part of the national freedom struggle for the purpose of grant of freedom fighter's pension under the Central scheme. After the proceedings dated 20.1.1998 the petitioner had preferred Ext.P-1 application dated 11.5.1998 to the 1^st respondent claiming the benefit of freedom fighter's family dependent pension under the Central scheme. The petitioner mainly places reliance on Ext.P-3 certificate dated 6.5.1998 issued by Sri. Kunjan Sukumaran, who is stated to be the recipient of the Central pension and suffered imprisonment for more than the

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W.P.(C)11859/10 - : 4 :-

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prescribed period of one year period. In Ext.P-3 it is certified that the petitioner's husband, Sri.A.V.Velayudhan had remained underground for the period from October, 1946 to September, 1947.. Ext.P-4 is the proceedings issued by the 1^st respondent Union Government, whereby the said Kunjan Sukumaran was granted pension under the Central scheme. Ext.P-5 is the convict register pertaining to the imprisonment of the said certifier. As no effective action was forthcoming, the petitioner was constrained to file Writ Petition (Civil), as W.P.(C).No. 23068/2009, in which this Court had rendered judgment dated 30.8.2009, disposing of that W.P.(C). by directing the respondents to consider the claim of the petitioner. Pursuant to the judgment in W.P.(C).No.23068/2009 the 1^st respondent Union Government has issued the impugned Ext.P-6 proceedings dated 21.1.2010 rejecting the claim of the petitioner.

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The main grounds of rejection cited by the 2^nd respondent in Ext.P-13 are stated in paras 4 and 5 thereof, which read as follows:

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“The petitioner has not produced any primary evidence to substantiate her claim. She has produced a Personal Knowledge Certificate from Shri Kunjan Sukumaran; who has certified that Shri A.V.Velayudhan remained underground from October 1946 to September, 1947. But the petitioner in her application dated 11.05.1998 has not claimed the above period. The certifier has also not mentioned the Case No. in which the petitioner's late husband was accused. He has not also mentioned whether the petitioner's husband was a proclaimed offender, one on whom an award for arrest or head was announced or whose detention order was issued but not served. The Personal Knowledge Certificate bears only the thumb impression. Therefore, the genuineness of the certificate is doubtful though accompanied by the

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W.P.(C)11859/10 - : 5 :-

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certifiers Convict register.

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The Personal Knowledge Certificate is acceptable only when accompanied by a valid N.A.R.C. She has not produced a valid N.A.R.C. as stipulated in the Swatantrata Saink Samman Pension scheme. In the absence of a valid N.A.R.C., the Personal Knowledge Certificate is also not valid and acceptable. The petitioner has also produced a certificate from Shri.C.G.Sadasivan, Ex-MLA. In the above certificate the certifier has quoted case No.P.E/7/122 M.E., which the petitioner herself has not claimed as per the application. Moreover, the certificate of Shri.C.G.Sadasivan, Ex.MLA is not acceptable since it is not in the prescribed format and not accompanied by the certifiers jail records and Central pension sanctioning order.”

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Whereas the grounds of rejection cited by the 1^st

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respondent Government as contained in para 4 of Ext.P-6 are as

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follows:

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“4. .......

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(iii) In case of underground suffering, the applicant is required to submit Personal Knowledge Certificates (PKCs) from a prominent freedom fighter who has proven jail suffering of minimum two years and who happened to be from the same administrative unit. These PKCs are accepted along with the valid NARC. Since the petitioner has not produced valid NARC under the provisions of the Scheme, the PKCs are also not acceptable and cannot be the basis for sanction of pension. Even otherwise Shri Kunjan Sukumaran has been found to be issuing such certificates indiscriminately and the same cannot be relied upon. PKC issued by Shri.C.G.Sadavisan, Ex MLA is not in the prescribed form as per provisions of the Scheme. In any case the PKCs cannot be accepted in the absence of the valid NARC. The secondary evidence has to be reliable enough to induce a reasonable belief that the applicant fulfills the conditions of the Scheme. The PKCs cannot be taken to be always genuine or conclusive proof for granting pension under the Central pension Scheme. Further it cannot be denied that the PKCs can be obtained without much effort.

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iv) State Government vide its letter No.63437/ FFP. A2/2009/GAD dated 10^th December 2009 has not recommended the claim.”

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So one of the technical objections raised by the 2^nd respondent State

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Government is that in Ext.P-3 certificate it is not stated whether the petitioner's husband was a proclaimed offender, one on whom an

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award for arrest or head was announced or whose detention order

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W.P.(C)11859/10 - : 6 :-

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was issued but not served,etc. The further main ground of rejection cited by the 1^st respondent Union Government in Ext.P-6 is that Ext.P-3 PKC is not acceptable inasmuch as the requisite NARC has not been issued by the State Government. There is also a bald allegation without any material particulars that the certifier of Ext.P-3 has been issuing such certificates indiscriminately, etc.

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At the outset, it is to be noted that the responsibility to issue NARC in the prescribed format as per the Central scheme is mainly on the competent authority of the 2^nd respondent State Government. It is for the 2^nd respondent State authority to conduct its own inquries and ascertain from its various subordinate officers whether records pertaining to the case in which the claimant was involved, are available or not and if it is revealed that such records are no longer available, then the State Government has to issue NARC in the prescribed proforma as per the Central scheme. Ext.P-8 is the NARC issued by the Chief Judicial Magistrate Court, Alappuzha, that the records in relation to PE No.7/1122 are no longer available in that office. The respondents have not raised any objections as to the acceptability of Ext.P-8. Therefore, the 2^nd respondent has to act upon Ext.P-8 NARC issued by the said court. As regards the other offices, the 2^nd respondent State Government will have to ascertain

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W.P.(C)11859/10 - : 7 :-

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from the offices of the District Collector and Superintendent of Police, Alappuzha, whether the records in relation to PE7/1122 ME are available. It can be seen from Ext.P-9 issued in the case of one P.N.Mathew that the records in relation to PE7/1122 are no longer available in that offices. Therefore, the State Government, instead of discharging its primary responsibility cannot pass on the said responsibility to the petitioner who is a widow in her late 80s to secure such NARC from various subordinate offices of the Government. Therefore the said ground of rejection raised by the respondents is not tenable as the respondent State Government has not discharged its responsibility of ascertaining about the availability or otherwise of such records.

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The other objection raised is that the certifier of Ext.P-3 has not ticked any one of the columns shown in the proforma of coprisoner's certificate as per the scheme to indicate as to the reasons for the petitioner's husband to remain underground. The relevant portion of Ext.P-3 based on the proforma reads as follows:

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“I hereby certify that Shri/Smt./Kumari A.V.Velayudhan son/daughter/wife of Shri == resident of Thekkenivarthil, Varanam P.O., Alappey district, is is a bonafide freedom fighter who a) remained underground for more than six months for the period from October, 1946 to September, 1947 as he/she was

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i) a proclaimed offender; or ii) one on which an award for arrest was announced or iii) One for whose detention orders were issued by he evaded arrest.”

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W.P.(C)11859/10 - : 8 :-

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Therefore, the said objection appears to be mainly a clerical omission on the part of the certifier in not having precisely ticked the relevant items amongst (i) to (iii)of clause (a) of Ext.P-3 as to show the circumstances under which the claimant had to remain underground. It is seen that the claimant was also recipient of freedom fighter's pension under the State scheme on account of his involvement Punnappra-Vayalar movement. Ext.P-2 is the sanction order dated 29.7.1988 issued by the 3^rd respondent District Collector in that regard. Ext.P-15 is the copy of the affidavit dated 27.7.1981 submitted by the claimant (A.V.Velayudhan) regarding details of his involvement in PE 7/1122 on the file of the Special Magistrate Court, Alappuzha, etc. Therein he has sworn to that he had to remain underground as warrant was issued against him by the Special First class Magistrate Aleppey in connection with PE 7/1122 ME on account of his involvement in the Punnapra-Vayalar struggle. It is submitted by the petitioner that the original of Ext.P-15 affidavit was submitted by her husband before the 3^rd respondent District Collector on 27.7.1981, which led to the issuance of Ext.P-2 order dated 29.7.1988 granting him freedom fighter's pension under the State scheme. Therefore, if it is ascertained from the 3^rd respondent District Collector that Ext.P-15 is the copy of the original affidavit submitted

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W.P.(C)11859/10 - : 9 :-

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by Sri.A.V.Velayudhan, then it could be established that he had to remain underground as warrant of arrest was issued against him by the Special Magistrate Court, Alleppey. Therefore, the clerical omission on the part of the certifier in not showing the specific reason for the claimant to have remained underground, could be overcome by ascertaining the abovesaid aspect relating to Ext.P-15 from the 3^rd respondent District Collector. This Court is making this observation, as it has now come out that the certifier of Ext.P-3 had died long ago and there is no other way of ascertaining these aspects. Of course, in Ext.P-15 it is stated that the claimant had to remain underground for 14 months, whereas in Ext.P-1 application it was stated by the petitioner that her husband had to remain underground for more than 11 months. Ext.P-14 is the certificate issued by one Sri. C.G.Sadasivam, ex-Member of the Legislative Assembly, that the claimant Sri.A.V.Velayudhan had remained underground for 14 months on account of his involvement in PE 7/1122 ME. Whereas in Ext.P-3 certificate issued by Sri.Kunjan Sukumaran, it is stated that the claimant had to remain underground for 11 months from October, 1946 to September 1947. Merely because Exts. P-15 and P-14 speak about the period of remaining underground as 14 months and Ext.P-3 and P-1 speak about the period as more than 11 months cannot be the

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W.P.(C)11859/10 - : 10 :-

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basis for rejecting the claim of the petitioner. The substance of the claim is that her husband had to remain underground for more than 11 months. Therefore, the reason for having to remain underground is ascertained from Ext.P-15, then the said technical omission could be overcome. The approach of the authorities in these cases is not to reject the claim for the sake of rejection, but all proactive steps should be taken to ensure that the substance of the claim is ascertained through acceptable procedures. In the light of aspects, this Court is of the considered view that the impugned orders at Exts.P-6 and P- 13 deserve interdiction, as the matter requires serious and sincere re-consideration at the hands of both the respondents.

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Accordingly, the impugned orders Ext.P-6 and P-13 will stand set aside and the matter will stand remitted to the respondents for consideration of the claim of the petitioner afresh. To avoid further delay, it is ordered that the 3^rd respondent District Collector, Alappuzha, and the 4^th respondent District Superintendent of Police, Alappuzha, will ascertain from their respective offices as to whether the records in relation to P-E7/1112 ME are available in their offices and if such records available, the same may be made available to the 2^nd respondent State Government . On the other hand, if it is ascertained that the records in that regard are not available in that office, then

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W.P.(C)11859/10 - : 11 :-

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they should issue the requisite intimation to the 2^nd respondent about the non availability of such records in relation to PE-7/1122 ME on the file of the Special Magistrate Court, Alleppey and if such records are available the same may be made available to the 2^nd respondent State Government.

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Ext.P-8 NARC issued by the CJM should be acted upon by the 2^nd respondent. If the 3^rd and 4^th respondent also issue NARC from their respective offices, then the 2^nd respondent State Government has to issue NARC in the prescribed format regarding the non availability of records in relation to P-E/1122 ME on the file of the Special Magistrate's Court, Alappuzha. The 3^rd respondent District Collector will ascertain from the files in relation to Ext.P-2 proceedings No.Rdis.71393/1988 dated 29.7.1998 (by which the petitioner's husband was granted pension under the State scheme) as to whether original or copy of Ext.P-15 affidavit dated 27.7.1981 is available in that office and if it is available, a copy of Ext.P-15 shall also be forwarded by the 2^nd respondent District Collector to the State Government. Necessary action on the part of the 3^rd and 4^th respondents on the abovesaid aspect should be duly completed within six weeks from the date of production of a certified copy of this judgment in the matter of issuance of NARC from the respective

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W.P.(C)11859/10 - : 12 :-

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offices and verification of Ext.P-15 affidavit. If the aspect regarding Ext.P-15 is ascertained by the 2^nd respondent then they should intimate to the 1^st respondent Union Government that the petitioner's husband had to remain underground on account of the warrant of arrest issued against him in relation to PE7/1122 ME on the file of the Special Magistrate Court, Alappuzha, as disclosed in Ext.P-15 affidavit and the 2^nd respondent State Government will consider all relevant aspects of the matter and take a decision on the issue relating to the recommendation of the case of the petitioner under the Central scheme. The formalities in this regard will be completed within four months from the date of receipt of a copy of this judgment and thereupon, formal communication conveying the decision of the State Government should be issued to the 1^st respondent immediately thereafter. A copy of the said letter should also be marked to the petitioner. Thereafter, the competent authority of the 1^st respondent Union Government shall pass orders on the claim of the petitioner for freedom fighter's family dependent pension under the Central scheme within six weeks thereafter. While doing so, the respondent Union Government shall take into consideration the abovesaid observations and the findings made by this Court herein above. The petitioner will be at liberty to file written submission before R-1 & R-2 in the matter

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W.P.(C)11859/10 - : 13 :-

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along with supporting documents and she may also produce necessary documents to show the actual imprisonment suffered by the certifier of Ext.P-3 (viz., Kunjan Sukumaran).

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With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

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W.P.(C)11859/10

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: 14 :-

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APPENDIX

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PETITIONER'S EXHIBITS

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P1.	COPY OF THE APPLICATION DTD.11.5.98.
P2.	COPY OF THE ORDER OF THE DISTRICT COLLECTOR DTD.29.7.88.
P3.	COPY OF THE CERTIFICATE ISSUED BY KUNJAN SUKUMARAN DTD.6.5.98.
P4.	COPY OF ORDER GRANTING PENSION TO SRI.SUKUMARAN.
P5.	COPY OF THE EXTRACT OF THE CONVICT REGISTER RELATING TO KUNJAN SUKUMARAN.
P6	COPY OF THE ORDER DTD.21.1.2010 BY THE UNION GOVERNMENT
P7.	COPY OF PETITION OF THE PETITIONER DTD.10.3.2010.
P8.	COPY OF THE APPLICATION AND ORDER IN CASE NO.PE7/1122 ME OF CJM COURT, ALAPPUZHA, DTD.4.6.2009.
P9.	COPY OF THE ORDER DTD.11.1.2007 OF THE GOVT. OF INDIA.
P10.	COPY OF THE POSTAL RECEIPT DTD.18.3.2010.
P11.	COPY OF THE LETTER OF THE SECRETARY TO GOVERNMENT DTD.5.5.2010.
P12.	COPY OF THE ORDER OF THE DY. SECRETARY TO GOVT. OF INDIA DTD.26.7.22010.
P13.	COPY OF THE LETTER OF THE SECRETARY TO GOVT. DTD.10.12.2009.
P14.	COPY OF THE CERTIFICATE OF SRI.C.G.SADASIVAN, MLA DTD.8.6.81.
P15.	COPY OF THE AFFIDAVIT OF A.V.VELAYUDHAN DTD.27.7.81.
P16.	COPY OF THE REPORT DTD.21.3.88 OF THE TAHSILDAR.
P17.	COPY OF THE REPORT DTD.21.3.88 OF THE TAHSILDAR.
P18.	COPY OF THE LETTER DTD.25.4.2007 OF THE ADDL. CHIEF SECRETARY.
P19.	COPY OF THE LETTER DTD.30.9.2010 OF THE SECRETARY TO GOVT.

Vilasini Velayudhan v. the Union of India

Case brief

What is this about?

What did the court decide?

Vilasini Velayudhan v. the Union of India

Case brief

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