M. Nallamuthu vs The Additional Secretary to Government Public (Political Pension - 4) Department and The District Collector Madurai District

M. Venugopal, J.—The Petitioner has filed the present writ of certiorarified mandamus in calling for the records/documents relating to the impugned order passed by the first Respondent vide letter No. 1297/A.O.4/2006 - 3 dated 26/4/2006 to quash the same and also for issuance of direction to the Respondents in ordering the pension as per the provisions of Freedom Fighters'' Pension Scheme.

According to the learned Counsel for the Petitioner, the impugned order of the first Respondent dated 26/4/2006 in rejecting the request of the Petitioner praying for pension as a State Freedom Fighter is an illegal and improper one, because of the fact that the Petitioner has submitted a valid certificate from the co-prisoner as per Rules.

Advancing his arguments, it is the contention of the learned Counsel for the Petitioner that the first Respondent, while rejecting the request of the Petitioner in praying for the pension as per his letter dated 26/4/2006 on the ground that the Petitioner''s age cannot be more than 65 years on his appearance and moreover his age from ''59'' has been corrected as ''81'' based on medical certificate and Voters'' list and that apart, the Petitioner has not assigned the reasons as to why he is claiming pension after 38 years and resultantly, negative the request of the Petitioner, which is not sustainable in the eye of law.

Expatiating his submissions, the learned Counsel appearing for the Petitioner urges before this Court that the first Respondent has not appreciated the fact that the Petitioner has been given a shield by Madurai Freedom Fighters Samithion 31/5/1998 by acknowledging his participation in the Freedom struggle by other Freedom Fighters.

In short, the learned Counsel for the Petitioner submits that the impugned order of the first Respondent dated 26/4/2006 in negativing the request of the Petitioner by not granting the pension, is rightly to be set aside, since the same is not supported by available materials on record and therefore, he prays for allowing the writ petition in furtherance of substantial cause of justice.

Conversely, it is the contention of the learned Government Advocate for the Respondents that the Petitioner has applied for the grant of State Freedom Fighters Pension only on 25/10/2005, after alapse of more than five decades and had he been genuinely in need, then, his name and fame could have been spread widely and he would not have waited for several decades even to apply. That apart, he would have opted for Central Freedom Fighters'' Pension, which has higher rate of pension amount as well asother perks.

Also, a plea is taken on behalf of the learned Government Advocate that the Petitioner has not furnished any acceptable records and by his appearance, the age proof furnished by him does not tally and therefore, the Government has rightly rejected his request for Freedom Fighters'' Pension asper letter No. 1297/A.O.4/2006 - 3 dated 26/9/2006,which is perfectly a valid and legal one and the same does not suffer from any serious infirmity or patent illegality warranting interference by this Court at the writ jurisdiction.

The stand of the second Respondent/District Collector is that the averment of the Petitioner that he has been incarcerated in the Bellari Jail by the British Government for having participated in Quit India Agitation between 05.10.1943 and 04.04.1944,appears to be untrue one because of the fact that in all probability, he would never have attained majority at that point of time and also that he couldn''t have been kept in the shackles of a prison, etc. Also, the second Respondent in his counter, takes aplea that by March 1943, the Quit India Movement petered out. Therefore, the contention of the Petitioner that he has been arrested and kept inAlipuram Camp Jail in Bellari from 05.10.1943 to04.04.1944, appears to be a farfetched from the point of view of the Petitioner''s age as well as the timeframe of the struggle pertaining to Quit India Movement.

In the counter filed by the second Respondent, the District Collector, Madurai District in paragraph 3, it is averred as follows:

(i). 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:-

(a). Imprisonment/detention certificate from the concerned Jail authorities or the State Government indicating the period of admission, date of release etc and if the above primary evidence is not forthcoming, then

(b). The Secondary evidence in the form of two co-prisoners'' 8 certificate (CPCs) from freedom fighters who have proven jail suffering of minimum one year and who were with the applicant in the jail provided the State Government certifies that documentary evidence from the official records are not available;

(c). In case of underground suffering, if a person on account of his participation in the freedom struggle remained under ground for more than six months provided he was:

(i). a proclaimed offender; or

(ii). One on whom an award for arrest was announced;

(iii). One for whose detention, order was issued but not served; 9

(iv). Voluntary underground suffering or self-exile for party work is not covered as eligible for pension;

(d). In the absence of primary record-based evidenced, a No availability of records certificate (NARC) from the concerned State/Union territory along with 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 district can be submitted as supporting evidence to the claim. The petitioner did not opt for central pension.

Further, the second Respondent in his counter has stated that in support of the petition of the Petitioner dated 25/10/2005, he has submitted the following records:

(a). Tamaraipattayam awarded to him by Madurai Freedom Fighters Samithi on 31/5/1998

(b). Co-prisoner certificate for having undergone simultaneous sentence by Thiru.A.M.Lakshmanan, Madurai on 12/1/2004

(c). Age certificate furnished by Dr.S.Bharathi, Medical Officer and Assistant Surgeon, Regd.No.575923 Government, head quarters hospital, Usilampatti. `

(d). Extract of electoral roll 2001 of Dhoddappanaicikanur Panchayat 2nd ward, Part 2 Serial No.12139 (age 77 years as on 2001)

(e). Family Card 24/G/0304789 marking the age as 83 as on 2005." 11. The core contention advanced on behalf of the Respondents is that the writ petition is not perse maintainable and the same is liable to be dismissed in limini.

Countering the submissions of the learned Government Advocate appearing for the Respondents, the learned Counsel appearing for the Petitioner invites the attention of this Court to the age certificate given by the Doctors'' team dated 28/3/2005 in respect of the Petitioner, wherein it is mentioned that "the Petitioner has been carefully examined and has been certified that by physical appearance, the age of the Petitioner is 81."

Further, the learned Counsel appearing for the Petitioner contends that a co-prisoner, namely, Mr. A.M. Lakshmanan, S/o. Sri MuthukrishnaNaidu, Gandhipuram 4th Street, K. Pudur, Madurai 7, has issued a certificate to the Petitioner stating that the Petitioner is a bona fide freedom fighter, who has also been imprisoned on account of his participation in the "Quit India Movement" during the freedom struggle and has been arrested and tried by the City Magistrate and the Court convicted and sentenced him to undergo six moths rigorous imprisonment and was confined in Alipuram Camp Jailin Bellary from 5/10/1943 to 4/4/1944.

In the certificate at paragraph 3, the co-prisoner, A.M. Lakshmanan has offered that he suffered imprisonment during the freedom struggle and was lodged in Alipuram Camp Jail in Bellary District, Karnataka during the period from 15/2/1943 to13/5/1946.

The short question that falls for consideration in this writ petition, is, Whether the impugned order dated 26/4/2006 passed by the first Respondent in negativing the requestof the Petitioner as to the grant of Freedom Fighters Pension is legally sustainable one in the eye of law?

It is to be noted that in the Age Certificate dated 28.03.2005 issued by the Medical Board in respect of the Petitioner, the age of the Petitioner as ''81'' in figures has not been mentioned. However, in words, it is mentioned as ''Eighty One''. It is not in dispute that the co-prisoner,Mr.A.R. Lakshmanan has certified that the Petitioner has suffered imprisonment. It is also the case of the Petitioner that he has been issued withThamaraipattai (shield) by Madurai Freedom FightersSamithi on 31/5/1998 on the eve of 50th year of Independence Day Celebration (Golden Jubilee year1947 - 1987). When the Medical Board comprising of a Medical Board member Government Head Quarters Hospital, Usilampatti; Joint Director of Medical Sciences, Medical Officer and another person concerned with the Medical Board/field has issued anage certificate dated 28/3/2005 to the Petitioner mentioning that on appearance, when he has been examined at the Headquarters Hospital, he is 81 years of age, it passes beyond one''s comprehension as to how the first Respondent has come to the resultant conclusion that on appearance, he cannot be more than65 years of age and suffice it for this Court testate that the first Respondent, by observing so, in his letter dated 26/4/2006, has indulged in surmises, suppositions and conjectures which is not warranted and that too, in the teeth of age certificate dated28/3/2005 issued by the expert body.

In law, there cannot be a better evidence/documents other than the age certificate produced by the Petitioner from the Medical Board and since the order of the first Respondent is not based primarily on the age certificate produced by the Petitioner from the Medical Board, this Court without going into the merits of the matter allows this writ petition by setting aside the order of the first Respondent in 1297/A.O.4/2006-3 dated26/4/2006. Moreover, this Court also directs the first Respondent to consider the entire gamut of the issue by taking into account of the records and materials available on record or produced by the Petitioner and if any other documents are required tube furnished by the Petitioner, it is open to the first Respondent to obtain the same after calling upon the Petitioner to produce the same and pass fresh orders in the manner known to law by considering the overall assessment of the facts and circumstances in a conspectus fashion. Further, it is open to the first Respondent to obtain necessary information from the Karnataka Government or from any other appropriate authority concerned, as regards the claim of the Petitioner that he has been arrested and kept in Alipuram Camp Jail in Bellari from 05.10.1943to 04.04.1944, in regard to the genuineness or otherwise of the claim made by the Petitioner for claiming the pension as per the provisions of Freedom Fighters Pension Scheme for the purpose of arriving at the subjective satisfaction of the first Respondent in considering the claim of the Petitioner.

In the result, the writ petition is allowed. The order passed by the first Respondent in letter No. 1297/A.O.4/2006 -3 dated 26/4/2006 is set-aside. The matter is remitted back to the first Respondent/Additional Secretary to Government, Public(Political Pension - 4) Department, who is directed to consider the entire available materials on records afresh. Also the first Respondent is directed to pass necessary orders on merits dispassionately uninfluenced and untrammelled by any of the observations made by this Court, by taking into consideration the available records or the records to be produced by the Petitioner, if the first Respondent requires any additional records. Also, it is open to the first Respondent to obtain necessary information from the Karnataka Government or from any other appropriate authority concerned, as regards the claim of the Petitioner that he has been arrested and kept in Alipuram Camp Jail in Bellarifrom 05.10.1943 to 04.04.1944, in regard to the genuineness or otherwise of the claim made by the Petitioner for claiming the pension as per the provisions of Freedom Fighters Pension Scheme for the purpose of arriving at the subjective satisfaction of the first Respondent in considering the claim of the Petitioner. In any event, the first Respondent misdirected to pass appropriate orders within a period of six weeks from the date of receipt of a copy of this order. No costs.