V.S. MARAIAN v. UNION OF INDIA

W.P.(C). NO.16412/2006:APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALLEPPEY VIDEORDER NO. R. DIS. 22005/74/F6 DTD. 01/06/1974.EXT.P.2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THERESPONDENTS DT. 20/04/1998.EXT.P.3: COPY OF THE PKC ISSUED BY SRI. P.K. SUKUMARA @ KUNJAN SUKUMARANDT. 20/04/1998.EXT.P.4: COPY OF THE PKC ISSUED BY SRI. NARAYANAN RAMANKUTTY DTD.19/09/2001.EXT.P.5: COPY OF THE JUDGMENT DTD. 11/11/2002 OF THIS HON' BLE COURT IN O.P.NO.33083/02.EXT.P.6: COPY OF THE COMMUNICATION NO. 52/CC/KER/1012002-FF (SZ) DTD.16/04/2003 ISSUED BY THE R.1. TO THE PETITIONER.EXT.P.7: COPY OF THE JUDGMENT DTD. 07/04/04 OF THIS HONOURABLE COURT IN W.P.(C). NO. 16610/03.EXT.P.8: COPY OF THE ORDER DT. 05/08/2005 OF THIS HONOURABLE COURT IN I.A. NO.11199/05 IN W.P.(C). NO. 16610/03.EXT.P.9: COPY OF THE REPRESENTATION DTD. 02/08/2005 SUBMITTED BY THEPETITIONER.EXT.P.10: COPY OF THE NARC ISSUED BY THE SUPDT. OF POLICE, ALAPPUZHA DT.02/08/2005.EXT.P.11: COPY OF THE NARC FROM THE CJM COURT, ALAPPUZHA IN CASE NO. P.E.7/1122 ME.EXT.P.12: COPY OF THE LETTER NO. 70672/FFP A2/2005/GAD DT. 08/06/2005 ISSUED BYTHE R.2. TO THE PETITIONER. W.P.(C). NO.16412/2006: RESPONDENT'S EXHIBIT: EXT.R1.A: COPY OF THE LETTER (NO.70672/FFP A2/2005/GAD) DTD. 08/06/2006 ISSUEDBY THE GOVT. OF KERALA IN FAVOUR OF THE R.1.//TRUE COPY// prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - -W.P.(C).NO.16412 OF 2006-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2007JUDGMENTThe petitioner is aggrieved by the order Ext.P12 passed by the StateGovernment refusing to recommend his case for sanction of Centralpension. The petitioner was a freedom fighter who had actively participatedin the Punnapra – Vayalar Movement during the freedom struggle. It isstated that an arrest warrant was issued against him by the SpecialMagistrate Court, Alleppey in case No.P.E.7/1122 ME and in order to evadethe arrest, he had gone underground for a period of about ten months from7.3.1122 ME to 6.1.1123 ME.2. Ext.P1 is the order by which he was granted pension under theKerala Freedom Fighters Pension Rules on account of his participation inthe Punnapra – Vayalar Struggle. After the said movement was recognisedby the Central Government for SSS Pension with effect from 20.1.1998, thepetitioner submitted an application for Central Pension as per Ext.P2. Hehad produced the Personal Knowledge Certificate issued by a prominentfreedom fighter Shri P.K. Sukumaran @ Kunjan Sukumaran who hadundergone imprisonment in the Central Prison, Trivandrum for a period of Wpc 16412/2006-2-more than 5 years and who was also the recipient of SSS Pension as well asthe holder of 'Thamrapathra”. Ext.P3 is the Personal Knowledge Certificateissued by Shri P.K. Sukumaran and Ext.P4 is the Personal KnowledgeCertificate issued by Shri Narayanan Ramankutty. Along with that, he hadproduced the NARC issued from the Chief Judicial Magistrate Court,Alappuzha.3. The petitioner had approached this court earlier by filingO.P.No.33083/2002 which was disposed of by Ext.P5 judgment directingthe second respondent to take a final decision within the time allowed bythis court. Thereafter, by Ext.P6, the first respondent informed that thesecond respondent did not recommend his claim for pension on certaingrounds. That was challenged before this court by filing Writ PetitionNo.16610/2003 which was disposed of by Ext.P7 judgment. A learnedSingle Judge of this court considered the contentions elaborately in the lightof the principles stated by this court in Gurdial Singh v. Union of India((2001 (8) SCC 8). The crucial directions are contained in paragraph 6 ofthe judgment. The judgment shows that this court held that the personalknowledge certificates issued are by competent persons which wasconceded in the light of Exts.P5 and P7 convict registers produced in thatcase. What was required was a proper NARC. After considering the issue,the following direction was issued: Wpc 16412/2006-3- “if the petitioner produces a proper NARC from the CJM Court,Alappuzha or from any other curt in Alappuzha District concernedwith P.E.7/1122 wherein the petitioner was an accused within aperiod of five months from today, the State Government shallreconsider his case and forward the requisite recommendation to theCentral Government recommending for grant of SSS Pension to thepetitioner. The petitioner is free to produce any useful evidencealso to substantiate his claims. Upon receipt of recommendation bythe State Government, if any the Central Government shall passfresh orders in modification of Ext.P11 under intimation to thepetitioner. In the event of petitioner not producing fresh NARC asindicated above, within the period mentioned, Ext.P11 will standconfirmed.”4. Ext.P11 therein is Ext.P6 herein. Ext.P8 is the order in I.A.No.11199/2005 in the said Writ Petition whereby the period provided inthe judgment was extended by one month from the date of the order, i.e.5/8/2005. Thereafter, the petitioner produced fresh NARC, viz. Exts.P10and P11 issued by the Superintendent of Police, Alappuzha and the CJMCourt, Alappuzha respectively, along with Ext.P9 representation dated3.9.2005. Ultimately, Ext.P12 order has been passed rejecting thedocuments produced by the petitioner. The view taken therein is that thepetitioner has failed to produce a proper NARC from the CJM Court,Alappuzha as directed in the judgment of this court. It is also pointed outthat NARCs. have not been submitted within the time limit granted by thiscourt.5. Learned counsel for the petitioner invited my attention toExts.P10 and P11 which are the NARCs. produced by the petitioner. In Wpc 16412/2006-4-Ext.P10 it is certified that “no records are available in this office regardingthe Freedom Fighting Movement and the participation of V.S. Marian,Valavathuchirayil, Mararikulam South, Pathirappally P.O., Alappuzha in theNational Freedom Struggle. In Ext.P11 which has been submitted in properform giving the details of the case number and details of the documentsrequired, it is recorded by the office of the CJM Court that “application forcopy of arrest warrant in case No.P.E.7/1122. Verified the relevant andavailable registers, no such case was seen in it. The records are notavailable in this court. Hence the application is rejected.” Learned counselsubmits that evidently the application was filed with reference to caseNo.P.E. 7/1122 and it is clear from the endorsement that the records are notavailable in that court and therefore the NARC is in proper form. In theorder Ext.P12, what is pointed out is that the petitioner has not produced aproper NARC from the CJM Court, Alappuzha or from any other court inAlappuzha District concerned with P.E.7/1122 wherein he was an accused.The said reason does not appear to be correct in the light of the facts statedin Ext.P7. In the certificate given by the Superintendent of Police also, it isstated that records are not available regarding the participation of V.S.Marian in the National Freedom Struggle. Evidently, that is with referenceto the petitioner himself.6. Learned Govt. Pleader points out that the NARC produced from Wpc 16412/2006-5-the Chief Judicial Magistrate's Court is not in accordance with the rulesprescribed by the SSS Pension scheme and that in the NARC from theSuperintendent of Police, Alappuzha, it is not stated that the petitioner hasnot mentioned the case number and hence both are unacceptable. This is acase where the petitioner is seeking the benefit of pension for participationin the Punnapra – Vayalar struggle. Based on his sufferings, he has beengranted pension by the State Government by Ext.P1. The eligibility forgrant of the said pension was also the period of underground sufferingwhich is claimed in Ext.P2 also. Therefore, the claims are identical. Hence,in the light of the fact that he was granted pension by the State Government,the refusal of the State Government to recommend the same for CentralPension, being purely based on a technical approach, is not correct. Thisposition is reiterated in Sadananda Swamy v. Union of India (2004 (2)KLT SN page 76, case No.92). In similar circumstances, this court held that“in such circumstances, taking a lenient view one can only go by theconsistent pleading of the petitioner that the case relates to freedommovement – a case which can as well be accepted in the light of theabscondence certificate issued by the admitted Thamrapathra holders andalso of Ext.P6 certificate issued by the President of Freedom Fighters'Association who seems to belong to the very same taluk as the petitionerhimself.” Judged in the light of the view taken therein, it is clear that the Wpc 16412/2006-6-petitioner who had been a recipient of State pension for participation in thevery same movement, cannot be held ineligible for want of a fresh NARCby the State Government. The other reason that the documents were notproduced within the permitted period provided in the judgment is also notcorrect in view of Ext.P8 order passed by this court granting extension ofthe period. At any rate, it is upto the Government of India to consider thesufficiency of the documents and take a decision on the merits of the claim.7. Therefore, Ext.P12 is quashed. There will be a direction to theState Government to recommend the case of the petitioner for grant of SSSpension within a period of six weeks from the date of production of a copyof this judgment. Upon receipt of the records and recommendation by theState Government, the first respondent will pass appropriate orders, within afurther period of three months. The first respondent also will consider theclaim for payment of arrears from the date of receipt of the application,being 20.4.1998, in the event of sanction of pension.The writ petition is disposed of in the above terms. No costs. (T.R. Ramachandran Nair, Judge.) Wpc 16412/2006-7-kav/