P. Bhargavi vs State of Kerala and Others

Raja Vijayaraghavan V., J.—1. The travails of the wife of a freedom fighter and her untiring efforts to secure the benefits of the Kerala Freedom Fighters'' pension due to her late husband is the issue involved in the instant writ petition.

On 26.05.1981, Sri. M.K. Thankappan, a freedom fighter, who had actively participated in the Punnapra Vayalar Movement during the freedom struggle, preferred an application before the 2nd respondent claiming that he was entitled to get the benefit of Kerala Freedom Fighters'' pension. In the said application, it was asserted by Sri M.K. Thankappan that he had participated in the Punnapra Vayalar struggle in the year 1946 and he had gone underground for a period of eight months for the period from 7.3.1122 ME to 6.11.1122 ME in connection with case No. P.E.7/1122 ME. Along with the said application, he had produced a ''Personal Knowledge Certificate'' (hereinafter referred to as ''PKC''), issued by P.K. Chandranandan MLA, a freedom fighter, who, in the aforesaid certificate, had stated that Sri. M.K. Thankappan is personally known to him for the last several years and asserted that he had also participated in the freedom fighter movement known as "Punnapra Vayalar struggle" in the year 1946. Sri M.K. Thankappan had applied before the Chief Judicial Magistrate Court, Alleppey, for a certified copy of the arrest warrant issued against him in connection with case No. P.E7./1122 of Special Court, Aleppey and as per the order dated 21.4.1981, M.K. Thankappan was informed that the records of the year 1122 ME have already been destroyed. On that basis, the application filed was rejected. M.K. Thankappan had produced before the authorities Ext. P3, which is the "Non-availability of Records Certificate'' (hereinafter referred to as "NARC") issued from the Chief Judicial Magistrate Court, Aleppey, which reveals that, all the records of the year 1122 ME have already been destroyed.

Based on the intimation from the respondent that the "PKC" issued by P.K. Chandranandan MLA was not sufficient for the purpose of consideration of his application, the petitioner had submitted the "PKC" of one Sri. H.K. Chakrapani, who was the recipient of Central freedom fighters'' pension under the Ministry of Home Affairs order No. 119/PVS/104/99-FF(SZ) dated 18.6.2003. H.K. Chakrapani the recipient of the Central freedom fighters'' pension, had stated in his "PKC" that Sri. M.K. Thankappan was a bona fide freedom fighter who had remained underground for a period of more than six months from 7.3.1122 ME to 6.11.1122 ME and he was a person against whom a warrant for arrest was announced by the Special Magistrate Court, Alleppey in case No. P.E.7/1122.

Sri. M.K. Thankappan was also summoned before the District Advisory Committee on 7.3.2001, the meeting of which was held in the presence of Deputy Collector (Housing) and after considering the materials produced and after hearing him, had recommended the disbursal of freedom fighters'' pension to Sri. M.K. Thankappan. While the application filed by M.K. Thankappan was pending consideration by the respondent, he left this world for his heavenly abode on 7.6.2006. Consequent to his death, the application filed by M.K. Thankappan was pursued by his wife, the petitioner herein.

As per Ext. P10 order dated 19.4.2007, the 2nd respondent issued a communication to the petitioner that necessary documents have not been produced before the authorities concerned to prove that Sri. M.K. Thankappan had gone underground. The petitioner was asked to produce the required documents such as jail records, court records and also the arrest warrant to prove that he is a bona fide freedom fighter. Though Exhibit P 10 would not reveal that the claim was rejected, the counter affidavit filed by the respondents emphatically states that the claim was rejected for various reasons, which aspect shall be adverted to later.

It is in the said circumstances that the petitioner, being the wife of M.K. Thankappan has approached this Court seeking a declaration that she is entitled to get the benefit of Kerala Freedom Fighters'' pension due to her late husband. The petitioner seeks the following reliefs:--

(i). declare that the petitioner is entitled to get the benefit of KFF pension due to her late husband in the light of Ext. P7 recommendation of the District Advisory Committee;

(ii). Issue a writ of mandamus or other appropriate writ, direction or order compelling the respondents to grant the benefit of KFF pension (State pension) to the petitioner due to her late husband within a stipulated time''"

A counter affidavit has been filed on behalf of the 1st respondent. In the counter affidavit, it is admitted by the respondent that the application for Kerala Freedom Fighters'' pension was submitted by M.K. Thankappan on 26.5.1981. It is also stated that the application filed by the freedom fighter was rejected owing to the reason that on inquiry it was not revealed that he is a genuine freedom fighter and that he had not gone underground due to the proclamation of the arrest warrant. For arriving at the said conclusion, the 1st respondent has relied on GO(P)NO.62/08/GAD dated 5.2.2008 and contended that the PKC issued by P.K. Chandranandan could be treated only as a secondary evidence and cannot be considered as a valid proof of participation in the Freedom Struggle. According to the respondent, unless the claim of the petitioner was supported by primary documentary evidence such as warrant of arrest, Court/Jail records etc., clearly showing the participation of M.K. Thankappan in connection with the freedom struggle, pension could not be granted. It is further stated in the counter affidavit that the recommendation issued by the District Advisory Committee is inconclusive and only in the event of production of primary documentary evidence as stated above, can the pension be granted. They sought to sustain the order of rejection of Freedom Fighters'' pension on the ground that the "NARC" produced by the petitioner and also the "PKC" issued by an eligible certifier will not hold good in a case of instant nature.

I have heard the learned counsel appearing for the petitioner as well as the learned Government Pleader.

The learned counsel appearing for the petitioner would submit that the rejection of claim on extraneous grounds has resulted in grave injustice. It was argued that in view of Ext. P3 order issued by the Chief Judicial Magistrate Court, Aleppey, it would be next to impossible for the petitioner to produce the warrant issued against him or any of the court records. Insistence to produce the Jail records in a case where M.K. Thankappan had gone underground without serving the jail sentence would reveal the callous mode in which the application was considered by the respondent, is the submission of the learned counsel.

The learned counsel relied on the judgment of the Apex Court in Mukund Lal Bhandari and Others v. Union of India and Others (, AIR 1993 SC 2127), Gurdial Singh v. Union of India and Others (, 2001 (8) SCC 8), Kamalbal Sinkar v. State of Maharashtra & Ors. (2012 VII AD (SC) 165) and an unreported judgment of this Court in W.P.(C).17641 of 2007 to substantiate his contentions.

The learned Government Pleader, on the other hand, sought to sustain Ext. P10 order and submitted that the petitioner was bound to comply with the conditions as stipulated in GO(P) NO.62/08/GAD dated 5.2.2008. According to the learned Government pleader, in view of the above, no reliance could be placed on the ''PKC'' issued by Sri H.K. Chakrapani, the ''NARC'' issued by the Chief Judicial Magistrate Court, Alleppey, or the recommendations made by the District Advisory Committee.

I have considered the rival contentions in detail and have perused the documents produced.

A perusal of the counter affidavit filed by the respondent as well as Ext. P10 would reveal that the respondents were not impressed by the records such as ''NARC'' from the Court and the "PKC" issued by the eligible certifier and also the recommendations made by the District Advisory Committee. A perusal of the counter affidavit would reveal that the case of the respondent is that the petitioner is bound to comply with the stipulations in GO(P)NO.62/08/GAD dated 5.2.2008 whereas it is admitted in the counter affidavit itself that the application was submitted by the petitioner''s husband as early as in the year 1981. A perusal of the Government Order relied on by the Government Pleader would reveal that the said G.O cannot have any retrospective effect and cannot govern the application submitted in the year 1981. If that be the case, the contention now raised that there is failure to comply with the stipulations in the said G.O cannot have any merit whatsoever.

The counter affidavit filed by the respondent would reveal that the respondents do not dispute that the ''PKC'' produced by the petitioner in support of the Freedom fighters'' pension issued by the ex-freedom fighter like H.K. Chakrapani and P.K. Chandranandan MLA are not genuine. Insofar as H.K. Chakrapani is concerned, he is a person who is the recipient of Central freedom fighter''s pension as per order dated 18.6.2003 and he has stated in unmistakable terms that the husband of the petitioner M.K. Thankappan is a bona fide freedom fighter who remained underground for a period more than six months from 7.3.1122 ME to 6.11.1122 ME and he was a person at whom the warrant of arrest was announced. The competency of Sri H.K. Chakrapani cannot be doubted for yet another reason. His competency as an "eligible certifier" was upheld by this court as per judgment dated 2.8.2007 in WPC 5811 of 2006 and as per judgment dated 3.8.2007 in WPC 26390 of 2006 as well.

The main reason for rejection of the freedom Fighters'' pension is the non production of the original Court/Jail records and warrant of arrest. When the case of the petitioner is that her husband had gone underground and had evaded arrest, there is no question of the petitioner producing Jail records. Insofar as the Court records and warrant of arrest are concerned, the petitioner has already produced the "NARC" issued by the Chief Judicial Magistrate Court, Aleppey. If that be the case, the insistence for production of original records from the court or from the jail cannot be countenanced. When no efforts were made by the state to secure the original records for posterity, they cannot be permitted to take advantage of their laxity to deny the benefits to the deserving freedom fighters.

In Gurdial Singh v. Union of India and Others (, 2001 (8) SCC 8) the Apex Court had observed as follows:--

"[6]. The scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle without any expectation of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country. This Court in Mukand Lal Bhandari''s case, (supra) observed :(, 1993 AIR SCW 2508 : AIR 1993 SC 2127) (para 5)

"The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges of their kith and kin etc., are also the other benefits which have been made available to them for quite sometime now."

The Court categorically mentioned that the pension under the scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not.

[7]. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. THE case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of ''beyond reasonable doubt''. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence."

As held in Gurdial Singh (supra), the standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. The Apex Court had also held with disgust that the respondent authorities have adopted a hyper technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the Scheme intended to give the benefit to the sufferers in the freedom movement.

In Mukund Lal Bhandari and others V Union of India , AIR 1993 SC 2127 the Apex Court had after rejecting the stand of the Government that the claim for pension be dismissed on the ground of limitation observed as follows:

"In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes"

In view of the above, this Court is of the considered view that the reasons given in Ext. P10 and also in the counter affidavit that the claim of the petitioner seeking Freedom Fighters'' pension in respect of her husband for non production of the records is unsustainable. The grounds on which the same is based is patently wrong. The Personal knowledge certificate issued by an "eligible certifier", and who has been held to be so in WPC 5811 of 2006 and WPC 26390 of 2006, is found to be valid. In view of the certification by the eligible certifier, and the production of the Non availability of the records certificate issued by the CJM, Court Alleppey, this court holds that the petitioner has been able to sufficiently prove the claim of her husband for freedom fighters pension. No other reasons are stated for rejection of the claim.

In the result, the writ petition will stand allowed. Since the petition is filed by the wife of a freedom fighter, the respondents are directed to pay to the petitioner, the Freedom fighters'' pension eligible to M.K. Thankappan with arrears from the date of application ie, on 26.5.1981, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment.