Allowed

Union of India v. Devayani

Kerala HC4 Jan 2023WA/749/2014

Case brief

AI extract

What is this about?

This appeal challenges a Single Judge's order granting SSS pension to a widow. The High Court dismissed the appeal, holding that the applicant failed to produce a valid Non-Availability of Records Certificate and that the Co-prisoner Certificates were issued by an ineligible party. Consequently, the benefits did not comply with the Scheme conditions.

What did the court decide?

The judgment dated 11.11.2013 in W.P.(C)No.37671/2009 is set aside, and the writ appeal is allowed.

Union of India Vs Devayani — Pension and Retirement Benefits | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 4^TH DAY OF JANUARY 2023 / 14TH POUSHA, 1944

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WA NO. 749 OF 2014

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(Against the judgment dated 11.11.2013 of the learned Single Judge in W.P.(C)No.37671/2009)

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APPELLANT/1ST RESPONDENT:

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

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BY ADVS.SRI.S.KRISHNAMOORTHY, CGC SHRI.P.VIJAYAKUMAR, ASG OF INDIA MANU S., DSG OF INDIA SRI.SUVIN R.MENON, CGC

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RESPONDENTS/PETITIONER/2ND RESPONDENTS:

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1 DEVAYANI, W/O. LATE VELU GOPALAN, KAITHAKUZHIVELIYIL HOUSE, PERUMTHURUTHU, MANNANCHERRY.P.O., ALAPPUZHA-688538.

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2 STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL ADMINISTRATION (FFFA) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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3 THE DISTRICT COLLECTOR ALAPPUZHA-688001.

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ADV.TEK CHAND.V., SR.G.P.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA NO. 749 OF 2014

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JUDGMENT

Dated this the 4^th day of January 2023

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S.MANIKUMAR, C.J.

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Instant writ appeal is filed by appellant/Union of India challenging the judgment in W.P.(C)No.37671 of 2009 dated 11.11.2013, by which, a learned Single Judge has allowed the writ petition.

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W.P.(C)No.37671 of 2009, was filed by the first respondent/writ petitioner seeking for a direction to the Union of India/respondent No.1 in writ petition to grant SSS pension to the writ petitioner as per Swatantrata Sainik Samman (S.S.S.) Pension Scheme, 1980 with effect from 30.2.1998 by allowing Ext.P3 application.

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After considering the rival submissions and material on record, a learned Single Judge, allowed W.P.(C)No.37671 of 2009 vide judgment dated 11.11.2013, relevant portion of which reads as under:-

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“4. In the counter affidavit filed by the respondent State it is stated that the petitioner had failed to produce documentary evidence. In the counter affidavit it is admitted that the petitioner had produced a copy of non availability of records certificate from the Superintendent of Sub Jail, Alappuzha. However, it was pointed out that as per rules, the petitioner had produced a co-prisoner's certificate from Sri. P.A. Solomon, Ex. M.P. The stand taken by the respondent State in the counter affidavit is that Sri. P.A. Solonmon, Ex. M.P, has undergone

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WA NO. 749 OF 2014

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imprisonment less than one year and he is not an eligible certifier. In answer to the said contention, the learned counsel for the petitioner invited my attention to a decision of this Court in Susheela Chakrapani_V. Union of India (2009(2) KLT SN 49 (Case No.53). In that case also a non-availability of records certificate was issued by the Superintendent of Special Sub Jail, Alappuzha. The reason stated for rejecting the application of the petitioner therein was that he had not furnished a valid NARC from the State Government. It was found wrong. In addition to NARC produced, co-prisoner certificates issued by the Ex-M.L.A and Ex-M.P. were also produced. There also one of the certificate was issued by Sri. P.A.Solomon, Ex-M.P. This Court found that the coprisoner certificate issued by Sri. Solomon, Ex-M.P. was accepted in other cases and he being a recipient of "Thamrapathra" from the Government of India, nonacceptability of Solomon's certificate do not stand.

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It is pointed out by the learned counsel for the petitioner during the course of argument that the petitioner's husband was recipient of "Thamrapathra" from the Government of India. As it is clear that the petitioner has produced valid documents in support of the claim made, this Court is of the view that the petitioner is entitled to the relief as prayed for in this writ petition.

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Therefore, the writ petition is allowed and the 2^nd respondent is hereby directed to forward the application filed by the petitioner with due recommendation thereon within a period of three months from today.”

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Being aggrieved, instant writ appeal is filed by the appellant – Union of India on the grounds inter alia that the grant of pension to the persons who are otherwise not eligible for pension under the Scheme may amount to undue burden to the Government exchequer and may open floodgates for other similarly situated persons.

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Sri.Suvin R. Menon, learned Central Government Counsel referred to various judgments of the Supreme Court and particularly drew the attention of this court to the decision in Union of India (UOI) vs. Bikash R. Bhowmick and Ors . reported in (2004) 7 SCC 722 and submitted that the court cannot travel beyond the pension scheme to grant pension.

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According to the appellant, in the case on hand, the certifier is an Ex-MP, Sri.P.A.Solomon. The State Government as well as the Union Government found that Sri.Solomon is not an eligible certifier since his period of jail suffering is less than one year. The Scheme itself refers, as to the manner in which one has to prove the claim. There is no challenge to the Scheme. There is no primary evidence in all these matters. Merely because the certifier was a recipient of SSS pension itself does not make such a person an eligible certifier in terms of the Scheme. In the scheme itself it is stated as follows:

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“In the case of jail suffering, the applicant is required to submit two co-prisoner's certificates (CPC), who have undergone jail suffering of minimum one year and who were with the applicant in jail. In case the certifier happens to be a sitting or Ex.MP/MLA, only one certificate in place of two is required”.

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It is submitted on behalf of the first respondent/writ petitioner, her husband was an activist, who had taken part in Punnapra Vayalar Struggle. On account of this, he was arrayed

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as an accused in a criminal proceedings on the file of the Special First Class Magistrate Court, Alappuzha, and that a warrant in that case was issued to him, by the court concerned. He was arrested and kept in the Sub Jail, Alappuzha, for one year and 26 days from November 1946 to December 1947. To substantiate the claim that her husband suffered imprisonment, for not less than the minimum prescribed period of six months, first respondent/writ petitioner submitted Exhibit-P8 Co-prisoner Certificate issued by one former Minister in the State Government and an Ex.MLA.

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Before adverting to the contentions, let us have a

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cursory look at the salient features of Swatantrata Sainik Samman Pension Scheme 1980, which is extracted hereunder:

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“ SALIENT FEATURES OF SWATANTRATA SAINIK SAMMAN PENSION SCHEME, 1980

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During the Silver Jubilee year of Independence, a Central Scheme for grant of pension to freedom fighters and their eligible dependents (Where freedom fighters have already passed away) was introduced by Government of India with effect from 15.08.1972. In 1980, the Scheme was liberalized and renamed as “Swatantrata Sainik Samman Pension Scheme, 1980” (the Scheme) and made effective from 01.08.1980. Several provisions of the Original Scheme have been modified and clarified since then through different orders and circulars of the Government of India. Salient features of the basic provisions of the Scheme as amended up to date, are as follows:

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Who is eligible for Samman Pension :-

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All the persons who participated in the freedom

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movement in some way or the other are not eligible for Samman Pension. Only following category of freedom fighters are eligible for the Samman Pension under the Scheme subject to furnishing of the specified evidences:-

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2.1 Eligible dependents of martyrs :-A martyr is a person who died or who was killed in action or in detention or was awarded capital punishment due to participation in the freedom struggle of India. Relevant documents from official records and newspapers of the relevant time are considered as evidences in such cases.

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2.2 Imprisonment :- A person who had suffered minimum imprisonment of six months (3 months in case of women, SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidences:-

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(a) Imprisonment/detention certificate from the concerned jail authority, District Magistrate or the State Govt. indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release.

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(b) In case records of the relevant period are not available, the secondary evidences in the form of 2 co-prisoner certificates (CPC) from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting or Ex. M.P./ M.L.A., only one certificate in place of the two is required.

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2.3 Underground :- A person who on account of his participation in freedom struggle remained underground for more than six months provided he was;

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A. a proclaimed offender; or

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B. one on whom an award for arrest was announced; or

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C. one for whose detention, order was issued but not served.

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Explanation :

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Voluntary underground suffering or self-exile

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suffering for party work under command of the party leaders, are not covered as eligible sufferings under the Scheme.

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The claim of underground suffering is considered subject to furnishing of the following evidence:-

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(a) Documentary evidence by way of Court/Government's orders proclaiming the applicant as an absconder, announcing an award on his head or for his arrest or ordering his detention.

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(b) In case records of the relevant period are not available, secondary evidence in the form of a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be from the same administrative unit could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed suffering were not available.

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2.4 Internment/Externment: - A person who, on account of participation in the freedom struggle, was interned in his home or externed from his district for a minimum period of 6 months is eligible subject to furnishing of order of internment or externment issued by the competent authority, from official records. In absence of the official records, NARC from the State Govt./ UT Administration concerned, along with a certificate from prominent freedom fighter, who had proven jail sufferings of at least two years; who belonged to the same administrative unit and whose area of operation was same as that of the applicant, should be furnished.

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2.5 Loss of property :- A person whose property was confiscated or attached and sold due to participation in the freedom struggle is eligible subject to furnishing of orders of confiscation and sale of property, provided that the persons whose property was restored are not eligible for Samman Pension.

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2.6 Permanent incapacitation :- A person who on account of participation in freedom struggle, became permanently incapacitated during firing or lathi charge subject to furnishing of:-

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(a) certificate from the District Magistrate stating that permanent incapacitation was done by bullet injury/lathi charge sustained during participation in the National Freedom Struggle, and

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(b) Medical certificate from the Civil Surgeon in support of the handicap.

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2.7 Loss of Government Job: - A person who lost his Govt. job for participation in freedom struggle is eligible subject to furnishing of orders of dismissal or removal from service. However, persons who were reinstated in service before expiry of two years from their dismissal or removal from service and were in receipt of benefits or pay and allowances are not eligible.

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2.8 Canning/Flogging/Whipping :- A person who was awarded the punishment of 10 strokes of caning/flogging/whipping due to his participation in freedom struggle is eligible subject to furnishing of copies of orders passed by the competent authority from official records.

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3. Procedure

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Persons who consider themselves eligible for Samman Pension under the Scheme and desire the Samman Pension, should apply in duplicate on the prescribed application form. The application, duly filled in and supported with required documents as proof of claim of suffering, should be sent to the Chief Secretary of the Concerned State Government/Union Territory Administration. A copy of such application should be sent to the Deputy Secretary to the Government of India, FF Division, MHA, New Delhi as an advance copy. However, claims can be processed by the Central govt. only on receipt of verification & entitlement to pension report from the State Govt./U.T. Administration concerned. In case the requirements of the Scheme are fulfilled, Samman pension is granted to the applicant.

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4. Acceptability of Secondary Evidence

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Secondary evidence can be considered only if supported by a valid Non-Availability of Records Certificate (NARC). The provisions of the Scheme were clarified to the State Governments in several circulars of the Govt. of India, gist of which is available in the Appendix attached herewith. The Instructions on NARC were reiterated by the Govt. of India, Ministry of Home Affairs, vide Circular No. 8/12/95-FF (P) dated 2.11.98,

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WA NO. 749 OF 2014

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relevant extracts of which are reproduced as follows:-

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“As per the scheme, claims of the applicants for samman pension are required to be supported by the duly verified official records of the relevant times. Only in case of non-availability of such records, secondary evidences, as specified in the scheme, can be made basis of such claims. However, due care and caution is required in such cases in view of several instances of bogus/ forged claims which have come to the notice of the Central Government. It is of utmost importance that before recommending such cases, complete facts of the case in which the applicant claims involvement, are verified from all the agencies which could have been concerned with the matter. These may include the police station concerned, the District administration, the jurisdictional court, competent authority issuing detention order, the advisory board/appellate court, prison authorities, and intelligence agencies. Discrete enquiry should also be made to ascertain genuineness of the claims. The NARC should be issued only after the above verification. It is reiterated that the NARC should invariably be worded as follows:

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All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and It is confirmed that the official records of the relevant time are not available. ”

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As per the provisions for grant of the Swatantra Sainik Samman (S.S.S.) Pension Scheme, 1980, the applicant is required to submit two Co-prisoner Certificates from prominent freedom fighters, who have proven jail suffering of minimum one year and who were with the applicant in the jail. These Coprisoner Certificates are accepted only when these are supported along with a valid NARC.

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It is well settled now though the State Government positively recommends the case of the applicant, ultimately the

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authority considering the application, the Central Government, can reject the application and vice versa. In some of the cases, reliance is placed on honour of 'Thamra Pathra' conferred way back in 1972 on some of the freedom fighters. Now the question is whether honour of having a 'Thamra Pathra' would automatically entitle the applicant to get central pension. Similarly if the State pension is already granted, would it be a ground to secure SSS pension without any other consideration.

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Sanction of SSS pension depends upon participation of the freedom fighter in a particular struggle either as a confinement or an underground suffering. This alone will entitle him to get pension or if period of confinement or underground suffering is satisfactorily completed as indicated in the Scheme. Therefore the argument of learned counsel appearing for the respondent No.1/writ petitioner that prima facie, a holder of 'Thamra Pathra' or his dependents, as the case may be, have to automatically get SSS pension, cannot be accepted.

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If that was to be a criterion for awarding central pension, there is no need for introduction of a scheme by the Centre and the scheme contemplates certain conditions to be fulfilled. Therefore, irrespective of holding a 'Thamra Pathra' or having sanction of State pension no one is entitled to get SSS pension. It depends upon the availability of the documents as

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contemplated in the Scheme. In the light of the Scheme being formulated for granting SSS pension irrespective of enjoying the State pension or holding a 'Thamra Pathra' will not be of any assistance except that it could be one more document to be considered while scrutinizing the papers by the State machinery or sanctioning authority at the Centre. To confer honour of 'Thamra Pathra', no conditions like primary evidence, secondary evidence or NARC were contemplated. Therefore, the criterion to get central pension is compliance of the conditions contemplated in the Scheme formulated for awarding SSS pension irrespective of having the sanction of State pension and 'Thamra Pathra'. In that view of the matter, unless the conditions laid down in the Scheme are complied with, no person will be entitled for pension under SSS Pension Scheme, 1980.

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On an earlier occasion, a Division Bench of this Court in the reported case Sankunny K.N. v. Union of India and another [2011(3)KHC 692 (DB)] at Paragraph 6 referred as under as far as 'Thamra Pathra' is concerned:

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“The learned Central Government Counsel submits that Ext.P1 Jail Certificate was issued only in the year 2008 and the claim of the petitioner could not have been considered with regard to the said certificate. It is brought to our notice that the State Government, while issuing Ext.R2(b) dated 27/8/2008, has forwarded the representation dated

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19/05/2008 preferred by the appellant along with the enclosures (in original) and also the report of the District Collector, Alappuzha for appropriate action by the authorities of the Central Government, who deal with the Central Pension. The learned Central Government Counsel submits that the said representation dated 19/5/2008 could be considered and appropriate orders will be passed, taking positive look and a lenient view, particularly in the light of Ext.P3 'Thamra Pathra' presented by the then Prime Minister on 15/8/1972, reckoning the significant contribution made by the appellant, to the nation, in the struggle for Independence.”

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Paragraph 6 does not lead to any conclusion that holder of a 'Thamra Pathra' will automatically be entitled for pension by the Center. It only says while considering the application, 'Thamra Pathra' honour presented by the Prime Minister shall also be taken into consideration.

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Needless to say, in case where NARC, in accordance with the scheme, is already issued, there is no room for fresh consideration of the matter by the State Government. Wherever NARC is not available, as per the Scheme, they have to insist on NARC in all such cases.

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It is true that Sri. P. A. Solomon had suffered imprisonment in Alappuzha Sub-Jail, only for a period from February to December, 1947, i.e. 9 months. As per the Scheme, the period of imprisonment should be one year.

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We have perused the decision in W. P. (C) No. 791 of 2013 and connected cases dated 30.05.2018, wherein it is held

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that Sri. P. A. Solomon is not eligible certifier as per the Central Scheme to issue certificate.

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Since the petitioner has not produced a valid NARC under the provisions of the Scheme, the Co-prisoner Certificates are also not acceptable and cannot be the basis for sanction of pension.

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Giving due consideration to the decisions relied on by the appellant, pleadings and the material on record, we are of the view that impugned judgment dated 11.11.2013 in W.P. (C)No.37671/2009 is liable to be set aside and we do so.

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In the light of the above, writ appeal is allowed.

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SD/S.MANIKUMAR CHIEF JUSTICE

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SD/SHAJI P. CHALY JUDGE

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jes

Union of India v. Devayani

Case brief

What is this about?

What did the court decide?

Union of India v. Devayani

Case brief

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