The Government of Tamil Nadu v. M.Nallathambi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27.04.2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN..WRIT APPEAL NO.1280 of 20081. The Government of Tamil Nadu rep. By the Secretary to Government Public (Political Pension 3) Department Fort St.George, Chennai 600 009.2. The District Collector Kanniyakumari @ Nagercoil. .. Appellants/Respondentvs.M.Nallathambi .. Respondent/PetitionerWrit Appeal is filed against the order of the learned single Judge made in W.P.No.34675 of 2003 dated 20.02.2008.WP.No.34675/03:- Petition Presented to this Court to issue a writ of Certiorarified Mandamus, calling for the records relating to the order of the first respondent issued in letter No.9145/PP(3)/03-3, dated 19.6.2003, quash the same and consequently direct the respondents to pay State Freedom Fighter Pension from 20.2.1977.For appellants: Mr.R.Thirugnanam Spl. Govt. PleaderFor respondent : Mr.K.Ravichandra Babu..JUDGEMENTP.JYOTHIMANI,J.The writ appeal is directed against the order of the learned Judge dated 20.2.2008 passed in W.P.No.34675 of 2003, by which the learned Judge has allowed the writ petition filed by the respondent herein and directed the appellants to grant StateFreedom Fighters Pension to the respondent from 20.2.1977. https://hcservices.ecourts.gov.in/hcservices/

The writ petitioner is stated to have participated in the Freedom Movement and was arrested and imprisoned during QuitIndia Movement from 15.8.1942 to 23.2.1943 launched by the thenTrivancore-Cochin Congress. It is stated that he also participated in various agitations during Freedom Movement, for which he was arrested and imprisoned at Neyyatingara Police Lock-up from 25.12.1938 to 15.7.1939. One Krishna Sastri, who was one of the freedom fighters and recipients of State and CentralFreedom Fighters pension, has issued a certificate dated15.5.1974, stating that the petitioner was imprisoned along with him from 12.5.1938 to 15.7.1939 at Neyyatingara police lock up and participated in freedom movement. It is also stated that the Trivandrum District Congress Committee, which was a part of Trivancore Congress prior to State re-organisation also issued acertificate dated 11.8.1972, stating that the petitioner underwent imprisonment for having taken part in the banned area of Vattiarkavu Conference for seven months in the year 1938. It is stated that former M.L.A. A.Kunjan Nadar issued a certificate stating that the petitioner was imprisoned along with him for having participated in the Quit India Movement.

The petitioner was issued a certificate by one K.V.Parameswaran Nair, who is a recipient of Central and State FreedomFighters Pension to the effect that the petitioner was imprisoned from 15.8.1942 to 23.02.1943 in Kuzhithurai and Thukalai lockup. It is also stated that one Gopalakrishna Pillai, a recipient of freedom fighters pension has also certified that the petitioner was imprisoned along with him from 15.8.1942 to 21.3.1943. Yetanother freedom fighter Mr.A.Raphel, also certified to the same effect. Based on the said documents, it appears, the petitioner approached the appellants on many times on 19.2.2003, 29.03.2003and 15.4.2003, claiming pension for the period from 20.01.1977 to15.04.2003 and the same was not granted. It is seen that the first appellant in the letter dated 28.4.2003, has directed the second appellant, the Collector to check the claim of the petitioner on the basis of co-prisoner certificates issued byK.V.Parameswaran Nair and N.Gamalia. It appears that the second respondent has not recommended the name of the writ petitioner on the ground that he did not produce any acceptable document.

In the counter affidavit filed by the respondents in the writ petition, who are the appellants herein, it is admitted that the writ petitioner had produced co-prisoner certificates, however the same were not accepted because, the District LevelScreening Committee headed by the Collector felt that the same were not issued by the persons who were authorised in that regard. Another reason that has been stated in the counter affidavit is that the petitioner has not produced any personal knowledge https://hcservices.ecourts.gov.in/hcservices/ certificate from any official certifier. It is also stated that the petitioner is receiving Tamil Mozhi Kavalar Pension ofRs.3000/- per month from the State Government Order. It is nowhere stated in the counter affidavit that the saidK.V.Parameswaran Nair, who had issued co-prisoner certificate in favour of the writ petitioner and who is stated to be a recipient of Freedom Fighters Pension did not undergo imprisonment, but the only reason assigned is that K.V.Parameswaran Nair, is not authorised by the Government to issue co-prisoner certificate.

The learned Judge, relying upon the judgement rendered in K.P.Nataraj vs. The State of Tamil Nadu rep. By DeputySecretary to the Government, Public (Political Pension) Departmentand another ( 2003 Writ Law Reporter 835), held that the issuing of certificate by a co-prisoner is sufficient especially in the circumstances that the Government is not able to trace out the records regarding the person's imprisonment materials.

In Gurdial Singh vs. Union of India [(2001) 8 SCC 8],the Supreme Court, while dealing with the Freedom Fighters PensionScheme, 1972, which is a central scheme, has held that the conductof the Government in attempting to make rowing enquiry is disgusting. The Supreme Court in that case has no doubt held that the petitioner therein was not entitled for freedom fighter pension from the original date of application on the facts of the case, but laid down the standard of proof required for the purpose of obtaining freedom fighters pension, holding that the standard of proof is not like one that is required in a criminal case and the technicality should not stand in the way of granting such relief to those who fought for freedom of the country. Therelevant portion of the judgement of the Supreme Court is as follows: "9. We are satisfied that the order of the respondent authorities impugned before the High Court(Annexure P-14) dated 1.11.2000 is liable to be setaside and the appellant entitled to the grant of relief of pension. However, keeping in view the lapse of time and peculiar circumstances of the case, we are not inclined to grant him the pension with effect from12.3.1973 as claimed and feel that the ends of justice would be met if the appellant is granted pension with effect from March 1996 when he was forced o file WritPetition No.12350 of 1996."

The said judgment has been followed in a number of cases by Division Benches and Single Judges of this Courtincluding the Division Bench consisting P.Sathasivam,J.(as he then was) and N.Paul Vasanthakumar,J. in the State Government of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu rep. By its Under Secretary, Public (Political Pension II)Department vs. K.S.Annapparaja (died) by Lrs., and another reported in CDJ 2007 MHC 1012. In another judgment reported inN.Palaniappan vs. State of Tamil Nadu, rep. By Chief Secretary to Government, Chennai and another, one of us (P.Jyothimani,J.) had an occasion to consider and decide a similar issue by relying upon the judgment of the Supreme Court in 2001 (8) SCC 8 (cited supra)and also the abovesaid judgment of the Division Bench in CDJ 2007MHC 1012 (cited supra).

In fact, as correctly pointed out by the learned Judge(P.Sathasivam,J., as he then was) in K.P.Natarajan v. State of Tamil Nadu (2003 WLR 835), co-prisoner certificate is certainly adocument which can be relied upon for the purpose of granting freedom fighters pension. The relevant portion of the judgment is,"7. The other essential condition is that the petitioner has to produce co-prisoner certificates as notified by the Government. It is the claim of the petitioner that he had produced a certificate from the Freedom Fighter V.N.Arunchalam, who is getting pensionas per order PPO 2147/S, who was lodged in CoimbatoreCentral Prison and Alipuram Jail in Bellary Districtduring the period 14.09.1942 to 11.09.1944. Thepetitioner also produced another certificate from the Freedom Fighter one Nachipallan, who was lodged in Central Prison, Coimbatore during the period 29.09.1942to 11.09.1944, who is also getting pension from the State Government vide order No.2706/S. Unfortunately, these certificates issued by the Freedom Fightrers, who were also lodged in the prison during the relevant period, who participated in the freedom struggle along with the petitioner, were not accepted by the Government, as these freedom fighters are not recognised or given in the list of 15 freedom fighters identified by the Government.

In the light of the abundant materials, it is surprising that the first respondent has informed that the petitioner had not furnished details regarding his confinement and the co.prisoner certificates produced by the petitioner are not acceptable. The Government has also erroneously rejected the report of the DistrictCollector, which is based on the enquiry made by the District Committee. The impugned order of the first respondent cannot be sustained in view of the decisions rendered in W.P.No.19152 of 1996 dated 21.01.2000 (PSJ),W.P.Nos.15465, 15596 of 2001 dated 12.03.2002 (VKJ),which was affirmed by the Division Bench in W.A.Nos.2142and 2143 of 2003 dated 01.07.2003."In such view of the matter, it is not possible to accept the contention of the learned Special Government Pleader that the petitioner has not produced any acceptable document.9. The next point to be decided is, as to from which date the writ petitioner would be entitled for freedom fighters pension.