Manjula Chellur, Ag. C.J.
1. When the Writ Appeals were taken up for consideration, all the writ petitions were clubbed together, as similar question of controversy is involved in the issuance of valid 'Non Availability of Records Certificate' (for short 'NARC') while considering application for pension under Swatantrata Sainik Samman Pension Scheme (for short SSSP Scheme), 1980, issued by different authorities other than State Government.
W.A. Nos. 227, 338 of 2011 and W.A. No. 382 of 2010:
2. The above three appeals are filed by the Union of India aggrieved by the judgment of the learned Single Judge directing sanction of pension to writ petitioner concerned.
W.A. No. 338 of 2011:
3. This appeal pertains to Punnapra-Vayalar movement. The applicant/petitioner claims to be a freedom fighter having undergone suffering of imprisonment between 11.10.1122(M.E.) and 13.02.1123 (May 1947 to December 1947). The document produced by the applicant is an endorsement from the Chief Judicial Magistrate Court(CJM), Alappuzha with regard to the NARC pertaining to PE No.8/1122. In this case the applicant had produced 'Personal Knowledge Certificate' (for short 'PKC') and also 'Co-Prisoner's Certificate' (for short 'CPC'). According to the appellant, as the claim of the applicant is on both the counts, that he was put to imprisonment and also suffered underground, the very claim for pension as a freedom fighter under the Punnapra-Vayalar freedom struggle cannot be entertained. Alternatively they challenge the endorsement by the CJM, Alappuzha as it cannot be considered as NARC as contemplated under the various Circulars of the Union of India issued from time to time subsequent to 1980.
4. Then coming to the CPC, the argument is, the contents of the certificate cannot be looked into for the reason co-prisoner definitely cannot remember details so accurately after lapse of decades, when the said certificates came to be issued. In this case the State government did not recommend the case of the applicant and the Central Government rejected the claim on the ground of existence of no proper NARC as contemplated under the scheme and so also PKC and CPC are unacceptable. However, when the matter came up before the learned Single Judge, the learned Single Judge held, the Certificate issued by JFMC indicating non availability of records in respect of PE No.8/1122 M.E. is a proper NARC and proceeded to hold that reasoning given at Ext.P8 is not a valid reason, therefore, Ext.P8 was quashed with a direction to pay pension to the petitioners under the scheme and also with a direction to pay the arrears with effect from 27.08.1998 within one month from the date of receipt of a copy of the judgment. Aggrieved by the same, the above appeal is filed.
5. During the course of submissions, the learned counsel for the respondents/wit petitioners submitted, subsequent to the disposal of the matter before the learned Single Judge all the arrears came to be paid and he has produced the intimation letter. As against this, the learned counsel for the Union of India, Sri.S.Krishnamoorthy contends that as there was no stay against the order of the learned Single Judge, arrears of pension was paid in view of the Contempt Case initiated in COC No.1330 of 2010 and further it was without prejudice to the right of the appellant.
W.A. No. 382 of 2010:
6. In this appeal, the widow of late freedom fighter by name one Pouleenju Achappan approached the learned Single Judge aggrieved by the rejection of pension already granted by the Central Government on the ground that there was no proper NARC. According to her, the State Government though had not recommended her case, the Central Government initially had sanctioned the pension but later suspended the said order on the ground that there was no proper NARC and she had sought for quashing of communication at Ext.P9. The learned Judge placing reliance on the endorsement given by the JFCM, Alappuzha opined that the said certificate issued by one of the three authorities, i.e. the Court, is a proper NARC therefore, the said document itself will amount to valid NARC. Having regard to the said certificate, the learned Judge proceeded to hold that the second condition, i.e. CPC produced by the writ petitioner, was acceptable and therefore proceeded to quash Ext.P9 communication of suspension of sanction of pension. Aggrieved by the same, the Union of India is before us contending that NARC has to be issued by the State after complying with the procedure laid down under the various Circulars, only after a detailed enquiry. According to him, NARC has to be given by the State and no other authority.
W.A. No. 227 of 2011:
7. This appeal is also filed by the Union of India aggrieved by the judgment of the learned Single Judge. In this case the claimant was the wife of the freedom fighter, but pertaining to General Freedom Struggle. The endorsement of imprisonment was obtained from JFCM, Kollam claiming to be the NARC. The State Government did not recommend the case of the applicant. Central Government also rejected on the ground that there is no acceptable documentary evidence. A specific contention taken by the appellant was that the details pertaining to the case in which imprisonment suffered by the freedom fighter were not at all mentioned at Column No.11 of the application (Annexure A1). Therefore, it was an incomplete application. So far as the respondent/petitioner, according to the learned Senior Counsel Mr.N.Darmadan, this is the fourth time the matter is before the Courts and the dependents of freedom fighter cannot be made to approach the Court again and again in spite of producing all the relevant documents.
W.P.(C) No. 258 of 2011:
8. The claim for pension as a freedom fighter in Punnapra-Vayalar movement by the applicant was as an under-trial imprisonment between November 1946 and June 1947. The document claimed as NARC is the certificate or endorsement issued by the Superintendent of Sub Jail, Alappuzha in PE No.7/1122 M.E. of Special Magistrate Court, Alappuzha. The State Government did not recommend the case of the petitioner. Central Government also rejected the claim on the ground that no valid NARC was issued by the State and Co-prisoner Certificate issued by Mr.P.A.Solomon was not acceptable. The learned counsel for the respondent -Union of India contends that there is difference with regard to period of imprisonment between the application and the Co-prisoner's Certificate by Mr.Solomon.
W.P.(C) No. 24196 of 2008:
9. The writ petitioner applicant is the wife of freedom fighter by name Mr.P.Damodaran pertaining to Punnapra-Vayalar struggle. The claim is underground suffering for more than seven months to evade arrest in PE No.7/1122 M.E. Along with PKC certificate, endorsement from Judicial First Class Magistrate Court, Alappuzha was submitted. In this case State did not recommend the sanction of Pension. Aggrieved by the said negative action on the part of the State Government, the petitioner is before us. According to the respondent State, there is no period of underground mentioned in the PKC certificate and the said certificate is not in the prescribed form.
W.P.(C) No. 33960 of 2008:
10. In this case the claim for pension is by dependent as family pension. It is a case of underground in PE No.7/1122M.E. on the file of Chief Judicial Magistrate, Alappuzha between October 1946 and August 1947. Nature of NARC is the endorsement issued by the Chief Judicial Magistrate, Alappuzha and PKC by one Mr.S.Kumaran. The State Government recommended the case of the petitioner as per directions of this Court, but the Central Government rejected for want of valid NARC by the State Government and PKC was not acceptable. This is under challenge in this writ petition.
W.P.(C) No. 30084 of 2008:
11. The applicant petitioner claims freedom fighter's pension for participation in the Punnapra-Vayalar Movement as having undergone underground between November 1946 to August 1947 in PE No.7/1122M.E. State Government did not recommend sanction of pension. Central Government rejected the claim for want of valid NARC by rejecting the endorsement given by the Chief Judicial Magistrate, Alappuzha. PKCs issued by Mr.Sukumaran and Mr.T.F.Yohannan are not acceptable to them.
W.P.(C) No. 9230 of 2008:
12. The writ petitioner/applicant claims to be a freedom fighter(Punnapra-Vayalar) in PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha. The reason for claim is underground suffering from October 1946 to June 1947. State Government did not recommend and the Central Government rejected for want of valid NARC and PKCs issued by Sri.Ittiyathi Vasudevan, Sri.Konanjalickal Sukumaran and Sri.S.Kumaran, Ex.M.P. were doubted. Aggrieved by the same, the petitioner is before us.
W.P.(C) No. 34532 of 2008:
13. The claim of pension pertains to Punnapra-Vayalar movement with reference to PE No.7/1122 M.E. claiming underground suffering between 07.03.1122 and 06.11.1122 M.E. Nature of NARC is the endorsement by Chief Judicial Magistrate, Alappuzha and PKC by one Mr.H.K.Chakrapani. Though the State Government recommended as per Ext.P5, Central Government rejected for want of valid NARC and PKC was not acceptable. Aggrieved by the said rejection the petitioner is before us.
W.P.(C) No. 4508 of 2008:
14. The applicant is the dependent of late K.K.Natarajan who said to have suffered underground between 09.01.1947 to 14.08.1947 in Quit India Movement. The endorsement from Judicial First Class Magistrate, Tirur in CC No. 9/1947 was produced as NARC and PKCs were issued by one Mr.Oontaman Ayyappan and Kutty Gangadharan. State Government did not recommend the case of the applicant and the same came to be rejected by the Central Government as per Ext.P15. Aggrieved by the same, the writ petitioner is before us along with true copy of the review petition submitted on 06.10.2007.
W.P.(C) No. 12043 of 2010:
15. The writ petitioner is the dependent wife of A.Chellappan, who underwent imprisonment in PE No.7/1122 M.E. from November 1946 to August 1947. The endorsement of the Judicial First Class Magistrate Court was not accepted as valid NARC. In this case though State Government recommended, Central Government rejected the claim vide letter dated 10.11.2009 for want of valid NARC and credentials of certificate issued by the Co-prisoner. Aggrieved by the same, the petitioner is before us.
W.P.(C) No. 8622 of 2010:
16. The writ petitioner has approached the concerned authorities for sanction of pension under SSSP Scheme claiming to be a sufferer as under trial prisoner in PE No.7/1122 M.E. from January 1947 to September 1947. On an earlier occasion also he approached the Court, when the claim was rejected in WP(C) No. 29638 of 2005, and again the matter was examined. State Government recommended for grant of pension but the Central Government rejected the claim on 17.11.2009. According to the petitioner, there are no valid grounds for the rejection of the claim. In this case also NARC according to the petitioner is the endorsement of Superintendent of Sub Jail, Alappuzha(Ext.P4) and also the certificate issued by the Superintendent of Police, Alappuzha as per Ext.P5. The petitioner relies on CPC given by one Mr.P.A. Solomon as per Ext.P3. The contention of the respondent Union of India is, there is no proper NARC as contemplated under Column No.9 of the Scheme and even the CPC issued by Mr.Solomon cannot be taken into consideration on the ground that it was not acceptable as the Co-prisoner may not be able to give the particulars so accurately with precession.
W.P.(C) No. 8143 of 2010:
17. The writ petitioner claims to be a sufferer as under trial prisoner pertaining to PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha pertaining to movement of Punnapra- Vayalar. The period of imprisonment claimed is from November 1946 to May 1947. Documents relied upon by the writ petitioner are NARC, said to have been issued by the District Superintendent of Police, Alappuzha and CPC by Mr.P.A.Solomon. Though the State Government recommended in pursuance of the directions issued in WP(C) No. 15250 of 2005, later the Central Government rejected the claim of the petitioner for want of valid NARC and unacceptable CPC.
W.P.(C) No. 5358 of 2010:
18. This also pertains to Punnapra-Vayalar movement and the writ petitioner is the freedom fighter who claims to have undergone imprisonment between November 1946 and November 1947 pertaining to PE No.7/1122 M.E. The writ petitioner relies upon two documents; NARC issued by the Superintendent, of Special Sub Jail, Alappuzha and CPC by one Mr.P.A.Solomon. State Government recommended the case of the petitioner for grant of pension, however, Central Government rejected the same for want of valid NARC by the State Government in accordance with the Scheme and so also unacceptable CPC.
W.P.(C) No. 1857 of 2010:
19. The claimant is the wife of alleged freedom fighter who had participated in the movement of Punnapra-Vayalar. According to the claimant, the deceased freedom fighter was declared as absconder who alleged to have gone underground pertaining to PE No.8/1122 M.E. from 01.11.1946 to 09.12.1947. The Central Government has rejected the claim for want of valid NARC and unacceptable PKC issued by Mr.V.K. Viswanathan, though the State Government has recommended sanctioning of pension.
W.P.(C) No. 56 of 2010:
20. This writ petitioner approached this Court for a writ of mandamus claiming to be a participant in the movement of Travancore Freedom movement having undergone underground between 17.09.1946 and 15.09.1947 to evade arrest in CC No.59/1947. State Government rejected the application vide order at Ext.P16 on the ground that PKC was not acceptable and NARC was not in order as per the requirement.
W.P.(C) No. 10665 of 2010:
21. The writ petitioner is the applicant for pension pertaining to Punnapra-Vayalar movement in PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha. He claims suffering as under trial imprisonment between November 1946 and May 1947. Two documents were produced along with the application. NARC issued by the Superintendent of Sub Jail, Alappuzha and CPC by one Mr.P.A. Solomon. Though State Government recommended subsequent to the directions in W.P.(C) No.18348 of 2005, Central Government rejected the claim on the ground that no valid NARC was produced and there is no valid CPC. Aggrieved by the same, the petitioner is before this Court.
W.P.(C) No. 10664 of 2010:
22. The main grievance of the petitioner is that on an earlier occasion, along with the application no documents could be produced and later, along with representation at Ext.P4, Ext.P5 NARC from Chief Judicial Magistrate Court, Alappuzha and Ext.P6 affidavit such documents are produced. Till the date of filing of the writ petition, the application was not considered therefore she has sought for a direction to the State Authorities to consider the application and recommend the same to the Central Government. However, as per the counter affidavit filed on behalf of the 2nd respondent State, we note as per paragraphs 6 and 7 that the Certificate issued from Judicial First Class Magistrate Court, Alappuzha was not accepted as the records pertaining to PE No.7/1122 M.E. were not available and there is no material to show how the freedom fighter was connected with PE No.7/1122. Similarly, pertaining to the Certificate issued by Mr.H.K.Chakrapani, it is rejected as unacceptable on ground that the Certificate of Mr.Chakrapani alone is insufficient for verifying the genuineness of the claim of the applicant.
W.P.(C) No. 16503 of 2010:
23. The claim of the petitioner is, he was a freedom fighter having participated in Punnapara-Vayalar struggle and suffered underground for a period of six months between 29.10.1946 and 10.12.1947. The documents relied upon by him are NARC from Chief Judicial Magistrate Court, Alappuzha in PE No.8/1122 M.E. on the files of Special Magistrate Court, Alappuzha. He also produced Certificate issued by Superintendent of Police, Alappuzha as per Ext.P5. So far as the secondary evidence, he relies upon PKC issued by one Mr.H.K. Chakrapani as per Ext.P3. Though the petitioner has approached this Court contending that in spite of the submission of the application, no order came to be passed. From the counter affidavit filed by the State we note that the application is already considered and rejected on 22.01.2010. According to the State, the two NARCs produced by the petitioner are not acceptable as they are not in accordance with Column No.9 of SSS Pension Scheme. Similarly doubts were with regard to PKC issued by Mr.Chakrapani.
W.P.(C) No. 15287 of 2010:
24. The writ petitioner is the wife of alleged freedom fighter who said to have participated in Punnapra-Vayalar struggle and went underground between October 1946 and July 1947 in PE No.7/1122 M.E. He relies upon the endorsement issued by Chief Judicial Magistrate Court, Alappuzha and PKCs by one Mr.H.K. Chakarapani and Sri.Kunjan Sukumaran. Though State Government recommended the claim of the petitioner for SSS Pension, Central Government rejected the same for want of valid NARC and so also unacceptable PKCs.
W.P.(C) No. 21484 of 2010:
25. The writ petitioner is one Smt.Kamala, wife of a freedom fighter pertaining to Punnapra-Vayalar struggle in PE No.7/1122 M.E. on the file of Chief Judicial Magistrate Court, Alappuzha. Said freedom fighter alleged to have undergone suffering between October 1946 and August 1947. The documents relief upon are alleged NARC issued by the Chief Judicial Magistrate Court, Alappuzha and PKCs issued by Sri.H.K.Chakrapani and Sri.Narayanan Ramankutty. In this case State Government forwarded the verification report without recommending the case of the petitioner and Central Government also rejected the claim for want of valid NARC and unacceptable PKCs.
W.P.(C) No. 29144 of 2010:
26. I.A. No.17566 of 2010 is filed to bring the Legal Representatives of the petitioner on record, as she is no more. Since the learned counsel for the respondent has no objection, the same is allowed.
27. In this case wife of the freedom fighter approached this Court claiming SSS Pension pertaining to Punnapra-Vayalar struggle. According to the petitioners, Mr.P.K.Kunjunni underwent underground pertaining to PE No.7/1122 M.E. between October 1946 and June 1947. Documents relied upon by the petitioners are; NARC issued by the Chief Judicial Magistrate Court, Alappuzha and PKC issued by Mr.Kunjan Sukumaran and Mr.H.K.Chakrapani. Though State Government recommended in the light of earlier judgment dated 06.10.2008, they rejected the claim on 13.03.2009 for want of valid NARC and unacceptable PKC certificates.
W.P.(C) No. 35911 of 2010:
28. The petitioner is the wife of freedom fighter pertaining to Punnapra-Vayalar movement pertaining to case No.MC.5/1122 M.E. of then Divisional First class Magistrate Court, Alappuzha. Suffering alleged is under trial imprisonment between 14.11.1946 and 16.08.1947. Documents relied upon are, Certificate from District Superintendent of Police as NARC and PKCs by Sri.Kunjan Sukumaran, Sri.V.K.Karunakaran and Sri.H.K. Chakrapani. State Government did not recommend the case of the petitioner. Central Government also rejected the claim for want of valid NARC and also on the ground of PKCs produced were not acceptable.
W.P.(C) No. 9280 of 2010:
29. This case is filed by the wife of a freedom fighter pertaining to Punnapra-Vayalar. Suffering claimed is imprisonment between November 1946 and May 1947 pertaining to PE No.7/1122 M.E. on the file of Special Magistrate, Alappuzha. Documents produced are endorsement from Superintendent of Sub Jail, Alappuzha and CPC by one Mr.P.A. Solomon. Though State Government recommended in the light of the directions of this Court in an earlier writ petition, Central Government rejected the claim for want of valid NARC and also on the ground that CPC was not acceptable as the certifier was not an eligible certifier.
W.P.(C) No. 4777 of 2010:
30. This case is filed by the wife of a freedom fighter pertaining to Punnapra-Vayalar. Suffering claimed is imprisonment between November 1946 and November 1947 pertaining to PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha. The documents relied are endorsement issued by Superintendent of Police, Alappuzha and also endorsement by the Court concerned. One Mr.P.A. Solomon has issued CPC. State Government recommended the case in the light of directions of this Court on earlier occasion, however, Central Government rejected the same for want of valid NARC and on the ground that the Certifier was not an eligible one.
W.P.(C) No. 10169 of 2010:
31. The claimant in this case is the widow of a freedom fighter who said to have participated in Punnapra-Vayalar movement in PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha. The claim of suffering is underground between 08.03.1122 and 10.10.1122 M.E. Documents relied upon are endorsement issued by the Chief Judicial Magistrate Court, Alappuzha as NARC and PKC by Mr.H.K.Chakrapani. State Government recommended the claim in pursuance of earlier judgment of this Court, however, Central Government rejected the same for want of valid NARC and also on the ground that PKC was not acceptable.
W.P.(C) No. 3385 of 2010:
32. In this case the claimant is the spouse of a freedom fighter who alleged to have participated in Punnapra-Vayalar movement in PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha and suffered underground between October 1946 and August 1947. Documents produced are NARC from Chief Judicial Magistrate Court, Alappuzha as Ext.P4 and PKCs by Mr.Kunjan Sukumaran, Sri.Narayanan Ramankutty and Sri.H.K. Chakrapani. State Government duly recommended the claim of the petitioner, but Central Government rejected for want of valid NARC and also unacceptable PKCs.
W.P.(C) No. 12052 of 2010:
33. This case is filed by the wife of alleged freedom fighter who said to have participated in Punnapra-Vayalar movement. Suffering claimed is imprisonment between 05.12.1946 and 09.11.1947 in PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha. Documents produced are endorsement of Chief Judicial Magistrate Court, Alappuzha and also endorsement by Superintendent, Sub Jail, Alappuzha as per Ext.P7. CPC is issued by one Mr.P.A. Solomon as per Ext.P5. Though State Government recommended the case in pursuance of the directions at Ext.P6, Central Government rejected the claim for want of valid NARC and CPC is unacceptable.
W.P.(C) No. 7157 of 2010:
34. The petitioner is the freedom fighter alleged to have participated in Punnapra-Vayalar movement and undergone suffering of imprisonment between 30.10.1946 and 10.08.1947 pertaining to PE No.8/1122 M.E. NARC is issued by the Superintendent of Sub Jail, Alappuzha and CPCs are issued by Mr.V.K.Viswanathan and Mr.P.A. solomon. Though State Government recommended the case of the petitioner, Central Government rejected the same as per Ext.P21 for want of valid NARC and that CPCs issued by concerned persons as not acceptable.
W.P.(C) No. 959 of 2010:
35. The claimant one Smt.Kalyani Kittan, is said to be the wife of a freedom fighter who participated in Travancore State Congress freedom struggle. Suffering is claimed as underground from October 1938 to September 1939. State Government has not issued any NARC. Documents produced are endorsement from Sub Inspector of Police, Thiruvalla and PKC from Smt.Rosamma Punnoose, Ex.MLA. State Government did not recommend and later Central Government rejected the claim for want of valid NARC and that CPC produced as not acceptable.
W.P.(C) No. 11950 of 2010: 36. The petitioner in this case is one Mr. P.K. Chellappan, said to have participated in Punnapra-Vayalar movement and underwent underground for 16 months from 09.03.1122 to 11.07.1123 M.E. in PE No.7/1122M.E. The documents relied upon by the petitioner are Ext.P4 endorsement issued by Chief Judicial Magistrate, Alappuzha and Ext.P5 PKC issued by one Mr.H.K. Chakrapani. Though State Government recommended the case of the petitioner, Central Government rejected by letter dated 10.11.2009 as per Ext.P8 for want of valid NARC and that the PKC issued was not acceptable.
W.P.(C) No. 11527 of 2010:
37. The writ petitioner is the spouse of late Krishnan Damodaran who alleged to have participated in Punnapra-Vayalar movement. The alleged suffering is underground between 28.10.1946 and 30.12.1947 pertaining to PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha. The documents relied upon are endorsement issued by Chief Judicial Magistrate Court, Alappuzha and PKCs issued by Mr.P.K. Sukumaran and Mr.H.K. Chakrapani. State Government recommended the petitioner's claim but the Central Government rejected the claim by Ext.P10 for want of valid NARC and also that PKCs were not acceptable.
W.P.(C) No. 2801 of 2010:
38. The writ petitioner is the spouse of a freedom fighter who said to have participated in Punnapra-Vayalar struggle. The suffering claimed is imprisonment between November 1946 and June 1947 in PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha. The documents produced are NARC endorsed by Superintendent, Special Sub Jail, Alappuzha and CPC by Mr.P.A. Solomon. State Government recommended the case of the petitioner and the Central Government rejected the same as per Ext.P10 for want of valid NARC and also on the ground that Certificate of CPC was not acceptable.
W.P.(C) No. 7181 of 2010:
39. The petitioner is the wife of a freedom fighter who alleged to have participated in Punnapra-Vayalar struggle and undergone imprisonment from 01.12.1946 to 13.12.1947 pertaining to PE No.7/1122 M.E. Documents relied are Ext.P4 NARC from Superintendent, Special Sub Jail, Alappuzha and Ext.P3 CPC issued by one Mr.P.A. Solomon. Though State Government recommended the case of the petitioner, Central Government rejected for want of valid NARC and that CPC was not acceptable.
W.P.(C) No. 18990 of 2010:
40. This also pertains to Punnapra-Vayalar movement and the claimant is one Smt.Sarojini Damodaran, Wife of late Damodaran. According to her, her husband went underground for a period from 07.03.1122 to 11.12.1122 M.E. in the case of PE No.7/1122 on the file of Special Magistrate Court, Alappuzha. Documents relied upon by the petitioner are PKCs issued by Mr.Narayanan Ramankutty and Mr.H.K.Chakrapani apart from the endorsement by the Judicial First Class Magistrate, Alappuzha at Ext.P7. State Government did not recommend the case of the petitioner and the Central Government also rejected the claim for want of valid NARC and also that PKCs are not acceptable as per Ext.P11.
W.P.(C) No. 20825 of 2009:
41. In this case the writ petitioner is dead and I.A. No.15740 of 2011 is filed by the legal representatives to come on record. The same is allowed. Registry is directed to carry out necessary amendment.
42. The claim of the petitioners is, the freedom fighter underwent underground pertaining to PE No.7/1122 M.E. on the file of Special Magistrate Court, Alappuzha between October 1946 to July 1947. Documents relied upon by the deceased petitioner are endorsement by Chief Judicial Magistrate Court, Alappuzha as NARC and PKC by Mr.Kunjan Sukumaran. Though State Government recommended in the light of earlier judgment of this Court, Central government rejected the same for want of valid NARC and also on the ground that PKC was not acceptable.
W.P.(C) No. 14003 of 2009:
43. The claimant petitioner is the wife of Mr.Dayanandan who said to have participated in the Punnapra- Vayalar movement and underwent underground between October 1946 and August 1947 according to the petitioner. Documents relied upon are NARC issued by the Chief Judicial Magistrate Court, Alappuzha and PKCs issued by Mr.Kunjan Sukumaran(Ext.P3) and Sri.T.F. Yohannan(Ext.P7). State Government has not yet recommended the case of the petitioner. Petitioner has approached this Court with the following reliefs:
"i. declare that the petitioner is entitled to get the benefit of SSS Pension due to her late husband;
ii. issue a writ of mandamus or other appropriate writ, direction or order compelling the 2nd and 3rd respondents to forward their verification-cum-entitlement to pension report along with due recommendation of the petitioner's claim for grant of SSS Pension and on receipt of the same, the 1st respondent may be directed to grant the benefit of SSS Pension to the petitioner due to her late husband within a stipulated time;
iii. issue such other appropriate writ, direction or order as this Hon'ble Court deems fit and proper in the nature and circumstances of the case."
44. According to the respondents, even though the recommendation has not yet reached, Central Government, based on the records produced, declared NARC as not valid and PKCs were not acceptable. According to the State Government, the recommendation is already forwarded to the Central Government on 07.04.2011 and the application is pending before the Central Government for consideration. However, the contention of the 1st respondent's counsel is, the NARC issued by the Chief Judicial Magistrate Court, Alappuzha cannot be considered as a valid NARC in view of the latest judgment of the Apex Court and also PKCs are not acceptable documents for want of accuracy in the certificates.
W.P.(C) No. 14167 of 2009:
45. The writ petitioner is the wife of freedom fighter alleged to have participated in Punnapra-Vayalar struggle pertaining to PE No.7/1122 M.E. having undergone imprisonment between March 1947 and December 1947. Documents produced are NARC from Superintendent of Sub Jail, Alappuzha and also CPC by Mr.P.A. Solomon. State Government has rejected the application. Petitioner has approached this Court seeking following reliefs:
"i. declare that the petitioner is entitled to get the benefit of SSS Pension due to her late husband;
ii. call for the records leading to the issue of Ext.P7 and quash its original by issuance of a writ of certiorari;
iii. issue a writ of mandamus or other appropriate writ, direction or order compelling the 2nd respondent to forward their verification-cum-entitlement to pension report along with due recommendation of the petitioner's claim for grant of SSS Pension and on receipt of the same, the 1st respondent may be directed to grant the same to the petitioner due to her late husband within a stipulated time;
iv. issue such other appropriate writ, direction or order as this Hon'ble Court deems fit and proper in the nature and circumstances of the case."
46. Writ Petitioner contends that his application was not forwarded to the Central Government. However, the counter affidavit filed by the State indicates that the application of the petitioner is already rejected. In that view of the matter, we have to consider the case of the petitioner whether the State Government forwarded the application to the Central Government. Even otherwise, according to the learned counsel for the 1st respondent, the NARC is not in accordance with the procedure contemplated and also the CPC issued by Mr.P.A. Solomon cannot be accepted as he was not an eligible certifier.
W.P.(C) No. 24035 of 2010:
47. The petitioner herein seeks SSS Pension as having participated in the Travancore Freedom Struggle. According to him, he was imprisoned between 05.04.1946 and 07.10.1946 in CC No.75/1122 M.E. The petitioner has sought for the following reliefs:
"a) issue a writ of certiorari or other writ or order or direction calling upto Ext.P7 and quash Ext.P1 all further proceedings for denying the Central Pension to the petitioner;
b) declare that the petitioner is a genuine freedom fighter entitled to Swathantrata Sainik Samman Pension for the date of application with 12% interest;
c) issue a writ of mandamus directing the 2nd respondent to forward the recommendation to the 1st respondent for the grant of Swathantrata Sainik Samman Pension to the petitioner from the date of the application with 12% interest;
d) issue such other orders as this Hon'ble Court may deem fit and necessary in the facts and circumstances of the case."
48. According to the petitioner the documents produced by him were not considered in accordance with the procedure contemplated and therefore, he is entitled for the above reliefs. The counter affidavits are filed by the 2nd and 3rd respondents on behalf of the State. According to the respondents, the petitioner has not produced any acceptable primary evidence to prove his imprisonment suffering. They proceeded to verify the two CPCs issued by Mr.K.Gopinathan(Ext.P6) and Mr.P.K. Bhaskaran along with the jail records. A copy of the rejection order of the State Government is produced as Ext.P1. According to the respondents, the imprisonment period claimed by the petitioner is from 05.04.1946 to 07.10.1946 and according to the report of the District Collector, Kollam, the period alleged to have been suffered by the petitioner under the certificates of the Co-prisoners' do not co-relate to each other. Therefore, the case of the petitioner cannot be considered due to non-production of valid NARC. With these averments, the writ petitioners in these cases have sought for disposal of the Writ Petitions.
49. In all these matters, the main contention of the Union of India is, in none of these cases, the NARC was in the format required to be produced and it is also not given by the State as contemplated under the Scheme concerned. Therefore, none of the cases were properly recommended or considered by the machinery of the State Government, hence the question of Union of India considering the applications would not at all arise. According to the learned counsel representing the Union of India, the NARCs have to be issued by the State Government and none of the other authorities relied upon by the applicants like the jail authorities, police or endorsement by Courts can be a certificate which could be referred as NARC by the State as contemplated under the Scheme. It was vehemently argued at length by the learned Assistant Solicitor General Mr.P.Parameswaran Nair and the Central Government counsel for the Union of India Mr.Krishnamoorthy that the documents like endorsement by the Court concerned at Alappuzha and Cherthala pertaining to certain PE numbers cannot be taken into consideration because there has to be, first establishment of such a case being registered, even if such a case is registered, it must pertain to one of the freedom struggle like Punnapra-Vayalar Movement or other movements and even if it pertains to such freedom struggle, the concerned sufferer must be shown as one of the accused persons or the person who either imprisoned or went underground, apart from other sufferings. Therefore, the mere endorsement issued either by the Jail authority or the Court or an official of the Police Department would not automatically became a certificate which can be termed as NARC.
50. Then coming to the Personal Knowledge Certificate (PKC) and Co-prisoners Certificate (CPC), the learned Assistant Solicitor General and the learned Central Government Counsel have strenuously pointed out several aspects of the matter contending that the certifier, whether issuing PKC or CPC, must be qualified to issue such certificates as contemplated under the Scheme and further it is the subjective satisfaction of the sanctioning authority, which scrutinises the contents of the certificates and analyse the same. After being satisfied only sanction for pension could be ordered. In other words, according to them, merely these PKCs or CPCs are issued by a person, who is entitled to issue such certificates, they are not precluded from looking into the contents to form an opinion, whether certifier could have issued such a certificate and whether the contents were true or false.
51. It is not in dispute, though the Scheme had not originally envisaged NARC, later on, especially as and when the necessity arose the demand for such NARC came into existence. By two circulars dated 07.06.1996 and 02.11.1998 NARC came to be introduced. According to the learned counsel for the respondents in the writ appeals and petitioners in the writ petitions, these two circulars were not envisaged at all in the earlier Scheme of 1980, and hence these circulars have no effect and the applications have to be considered only in the light of, the terms and conditions envisaged under the original SSSP Scheme of 1980.
52. However, it is also pertinent to mention that as a matter of fact Punnapra-Vayalar Movement was not even envisaged under the original Freedom Fighter Pension Scheme of 1972. Only at the time of 25th Anniversary Silver Jubilee year of independence, a separate Scheme came to be introduced for grant of pension to the freedom fighters and their family from the central revenues commencing from 15.08.1972. Though the quantum of pension initially was `200/- to the freedom fighter and `100/- to `200/-towards the family pension, it came to be enhanced from time to time. As on today the pension from the Central Government for the freedom fighter is `14200/- and the family pension also is at `14200/-. When it comes to dependent unmarried daughter's pension, it is only `3000/-. Earlier it was considered as pension, but now it is considered as 'Samman' (honorarium). It is also pertinent to mention that Punnapra - Vayalar and other five movements were not part of the National Freedom Movement either in 1972 Scheme or in 1980 Scheme and only in 1998 it came to be introduced by letter dated 20.01.1998 bearing No. 6/1/97-FF(P), whereby the decision of the Government was communicated recognizing following six movements of Kerala:
(a) Punnapra-Vayalar Movement
(b) Kayyur Movement
(c) Kavumbai Movement
(d) Karivelloor Movement
(e) Morazha Movement and
(f) Malabar Special Police Strike (MSP Strike), as part of Swatantra Sainik Samman Pension Scheme of 1980. The SSSP Scheme of 1980 contemplates what is the criterion, who are eligible for samman pension, what are the requirements to be complied with for getting such pension, how dependents of the freedom fighter have to approach, what are the kinds of sufferings entitle the applicants or dependents to get pension and the procedure for submitting such applications. It also envisages various stages how the application has to be processed and how ultimately sanctioning authority has to consider application by applying its mind, either sanction the pension or reject the same.
53. It is also not in dispute that the State machinery has to process the application through the General Administration Department (Freedom Fighters Pension), either it can recommend or it can reject or it can decline to recommend the application. However, the application has to be forwarded to the Central Government accompanied by verification and entitlement of pension report, where either the recommendation or otherwise will be mentioned. It is also well settled now that in spite of recommendation of entitlement by the State Government, it is open to the Central Government to decline grant of pension for the reasons recorded by the authority concerned. Therefore, what is envisaged is, the State machinery will receive the applications and other documents submitted by the applicants, then it has to verify the applications and documents accompanying the applications and then forward the same with its report, as indicated at Clause 10, which reads as under :
"ISSUE OF SANCTION ORDER : The receipt of advance copy of application form is acknowledged. The claim of the applicant will be scrutinized in the State Government/Union Territory administration in consultation with State Advisory Committee on the basis of copy of application submitted to them. After receipt of State verification and entitlement to pension report, the claim of the applicant is scrutinized and if found eligible Pension is granted. Sanctions are issued as applications are scrutinized and conveyed to the Accountant General of the areas with copies to the Chief Secretary of the State Government/U.T. Administration and the Collector/D.C. of the District concerned. Simultaneously, a communication conveying sanction of pension as also the amount of pension is issued to each grantee. Applicants whose applications are not approved are duly informed.
54. In all these matters, the bone of contention seems to be with regard to insistence of NARC to be issued by the State. According to the learned Senior Counsel Mr.Dharmadhan, learned counsel Mr.Om Prakash and Mr.Satheesh appearing for applicants, there cannot be insistence of submission of NARC by the State as it was not envisaged either in the Scheme of 1972 or 1980. Therefore, the circulars cannot be part of the Scheme and hence the authority cannot insist on such NARC by the State. According to them, by production of non-availability of records, either from the jail concerned or the police or the Court, it would be sufficient to prove that there is no primary evidence available, hence the secondary evidence required under the Scheme i.e PKC or CPC as the case may have to be taken into consideration.
55. According to the learned counsel representing the Union of India, not only the circulars pertaining to NARC but several circulars right from 1972 as a part of policy decision of the Government were issued from time to time on different aspects, which includes the enhancement of pension and other related issues. Therefore, when the quantum of pension to be granted under the SSSP Scheme was enhanced from time to time by way of policy decision of the Government through circulars, the procedure for processing the applications was also introduced through circulars as part of the policy decision to have a clarity for implementation of the Scheme in order to see that the genuine freedom fighter or their dependent family will alone get the pension in question.
56. As we note from the reliefs sought for in all the writ petitions, in none of the writ petitions, the circulars are challenged by the applicants. According to them, the NARC produced by them is the document contemplated under the circular. Therefore, they have satisfied condition of NARC either issued by the jail authority or the police or the Court as the case may be and there is no question of again the State Government issuing any NARC. In that view of the matter, we are of the opinion, it is not open to the writ petitioners now to contend that NARC by the State machinery was not contemplated under the original Scheme, therefore, circulars have no effect. If the applicants had produced certificates from the above three departments as a proof for non availability of primary evidence, it would only compel us to opine they were in clear understanding of what was required on their part to be produced i.e. NARC. But, according to them, the NARC would include a certificate issued by any of the departments mentioned above. Therefore, we are of the opinion, it is not necessary for us to consider the arguments of the writ petitioners that NARC as envisaged under the circulars in question was not part of the initial Scheme.
57. In order to understand what exactly the NARC would include and who has to issue such NARC, the following two circulars dated 07.06.1996 and 02.11.1998 are relevant which read as under:
Circular dated 07.06.1996 addressed to the Chief Secretaries of all State Department/U.T. Administration.
Subject : Grant of pension to freedom fighter and their families from Central Revenues under the Swatantratra Sainik Samman Pension Scheme, 1980 - Issuance of Non-availability of Official Records Certificate (NARC) - acceptance regarding:
Sir,
I am directed to say that the State authorities have been issuing Non-availability of Official Records Certificate (NARC) to the freedom fighters and their eligible dependents under the Swatantrata Sainik Samman Pension Scheme who claim pension on the basis of secondary evidences like Personal Knowledge Certificate (PKC) and Co-prisoners Certificates (CPC) in respect of sufferings undergone during the freedom struggle. It has come to the notice of the Central Government that NARCs are being issued by the State authorities in a casual and routine manner without verifying the official records available with the District authorities, Jail authorities, Police authorities, State Intelligence Bureau, Village Crime Book etc. It is quite possible that information in respect of one case-applicant not available with one source/authority. Non-verification of records from all possible source has been leading to a situation in granting pension to the applicants who otherwise could not have been sanctioned the same.
2. Therefore, in order to avoid this situation, it has been decided with the approval of Minister that Certificate about Non-availability of Official Records should be issued by the State authorities and will have to be worded as follows :
"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"
3. The State Governments etc. are therefore, requested that the above policy guidelines may be kept in view while issuing a Certificate about Non-availability of Official Records in respect of a claim made for grant of pension for consideration of the Central Government. They are advised to issue necessary instructions to all the District Authorities for compliance before issuing NARC to a freedom fighter.
5. Receipt of the letter may please be acknowledged. Circular dated 02.11.1998 addressed to the Chief Secretaries of all State Governments /Union Territory Administrations.
Subject : Grant of pension to freedom fighter and their eligible dependents from the Central Revenues under the Swatantratra Sainik Samman Pension Scheme, 1980 - Issuance of Non- availability of Official Records Certificate (NARC) – acceptance - regarding:
Sir,
I am directed to invite your kind attention to the policy guidelines in respect of non-availability of official records certificates (NARC) under the Swatantrata Sainik Samman Pension Scheme, 1980, issued by this Ministry vide letter No. 8/12/95-FF(P) dated June 7,1996 (copy enclosed). In spite of the above, the certificates received from your State do not conform to the said guidelines:
2. As per the Scheme, the 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 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 :
"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."
3. Instances have come to the notice of the Central Government, wherein, contents of some GRs have not been verified by the district authorities on the ground that records of the relevant time have been destroyed. In such cases, the district authorities should have indicated the prescribed retention schedule of such records and the time when the said records were destroyed. This will enable the Ministry to examine the veracity of several claims of applicants.
4. In view of the above facts, it is requested that the above guidelines may kindly be followed in letter and spirit in order to ensure that Samman Pension is granted only to the genuine and eligible freedom fighters".
58. The learned counsel appearing for the writ petitioners relies upon the Full Bench judgment of this Court reported in 2003 (1) KLT 467 (Union of India Vs. Peter Devassia). The question came up before their lordships was with regard to the period which could be counted for six months period of imprisonment for getting Freedom Fighters' Pension. While referring to several aspects of the Scheme, their lordships held, the trial need not end in conviction and any period of detention, including imprisonment as under trial prisoner could be counted for computing the period of six months of imprisonment. At paragraph 10, their lordships, while considering Ext. R1 (a) captioned as 'Salient Features of S.S.S. Pension Scheme, 1980, proceeded to hold as under :
"10. Counsel for the appellant raised another contention also. According to him, the scope of the Scheme has to be understood in the light of Ext. R1 (a) captioned 'Salient Features of SSS Pension Scheme, 1980, which was subsequently issued by the Central Government. Paragraph 2.2 of Ext. R1 (a) is relied on to contend that the imprisonment referred to in Cl. 4 (a) is correlated to the sentence awarded after trial. We are not able to agree with the above contention for two reasons. Firstly, Ext. R1(a) which only highlights the salient features of the Scheme cannot be used as an aid to understand or interpret the provisions of the Scheme. At any rate, Ext. R1(a) cannot modify the scheme or vary the meaning of the provisions of that scheme, which is a public document issued and published by the Central Government. Secondly, there is nothing in Ext. R1(a) which runs counter to the beneficial provisions contained in the scheme.
Relying on this, the learned counsel appearing for the petitioners contend that, NARC also finds a place at salient feature, therefore, this judgment is applicable and binding as it is by the Full Bench.
59. In the present cases, we are concerned with the two circulars, a policy decision of the Union Government as mentioned above. Though, NARC finds a place at salient feature, it was introduced as a policy decision of the Government, how NARC should be obtained and who has to give certificate of NARC. This was only to have full proof of the procedure in order to see, as already stated above, that no genuine applicant will be denied of the pension. In other words, no ineligible persons should get the pension. In this context, we refer to the judgment of the Apex Court reported in AIR 2010 SC 3588 (State of Orissa Vs.Choudhuri Nayak (D) Thr. L.Rs. and Ors.), paragraphs 7,8 and 9 are relevant, which read as under.
"7. It is of some interest to note from the statistics furnished by the Central government in their additional affidavit, that 1,70,813 freedom fighters/dependants have been sanctioned freedom fighters pension (as on 31.5.2010). At present as many as 60000 persons are getting pension or family pension as freedom fighters/dependants. The average pension of a freedom fighter and after his/her death to the spouse is Rs.12400/- p.m. and the average pension paid to a dependant unmarried daughter is Rs.3000 per month. The expenditure for the year 2009-10 under the scheme was Rs. 785 crores. We have referred to these figures only to show that when false claims come to the notice of the Central Government, it is bound to take stern action. Any complacency on the part of the Government in taking action against bogus claims under any scheme would encourage bogus claims under all schemes, by undeserving candidates who are `well connected and influential'. False claimants walking away with the benefits meant for genuine and deserving candidates has become the bane of several welfare schemes.
8. This Court in Mukund Lal Bhandari v. Union of India [1993 Supp. (3) SCC 2], Gurdial Singh v. Union of India [2001 (8) SCC 8] and State of M.P. v. Devkinandan Maheshwari [2003 (3) SCC 183] considered the object of the Freedom Fighters Pension scheme and indicated what should be the approach of the authorities in dealing with the applications for pension under the scheme. We may summarize them as under:
(i) The object of the scheme was to honour, and where necessary, to mitigate the sufferings of those who had struggled to achieve independence for the country. Many freedom fighters, even though they did not have sufficient income to maintain themselves, would even be reluctant to receive the Pension under the Scheme, as they would consider it as putting a price on their patriotism. The spirit of the Scheme being both to assist and honour the freedom fighters and acknowledge the valuable sacrifices made by them, the authorities should treat the applicants with respect and courtesy. The scheme should not be converted into some kind of routine scheme for payment of compensation.
(ii) The persons intended to be covered by the Scheme are those who sacrificed and suffered for achieving the independence of the country, without expecting any reward for their sacrifice and sufferings. Therefore they can not be expected to maintain and produce perfect records or documents about their participation in the freedom struggle.
(iii) Once the country has decided to honour freedom fighters by granting a pension, the approach of the authorities implementing the scheme should not be obstructionist or technical while examining the applications and documents produced, but be practical having regard to the fact that most of the applications are by old persons with no proper records.
(iv) The criterion for pension under the scheme is not age, but participation in freedom struggle. The freedom fighters pension can, therefore, in exceptional cases, be granted even to those who were minors at the time of struggle, if evidence clearly showed that they had participated in the freedom struggle and fulfilled the requirements of the scheme
The above principles were spelt out to ensure that no genuine freedom fighter was denied pension under the scheme.
9. Grant of freedom fighters' pension to bogus claimants producing false and fabricated documents is as bad as genuine freedom fighters being denied pension. The only way to respect the sacrifices of freedom fighters is to ensure that only genuine freedom fighters get the pension. This means that the Government should weed out false and fabricated claims and cancel the grant when the bogus nature of the claim comes to light. In Union of India v. Avtar Singh [2006 (6) SCC 493] this Court therefore cautioned:
"The genuine freedom fighters deserve to be treated with reverence, respect and honour. But at the same time it cannot be lost sight of that people who had no role to play in the freedom struggle should not be permitted to benefit from the liberal approach required to be adopted in the case of the freedom fighters, most of whom in the normal course are septuagenarians and octogenarians."
We will have to examine allegations of fabrication of the claim in this case, keeping the aforesaid principles in view".
60. At paragraph 8, their lordships of the Apex Court in the above judgment summarised the object of the Scheme and who were intended to be covered under the Scheme and how the principles have to be considered. At paragraph 9, they did refer to certain claims, which were bogus by producing false documents, so also fabricated documents. In that context, their lordships came down heavily on the bogus claimants, who had approached the authorities claiming pension with false and fabricated claims. In that context paragraph 9 came to be spelt out. Their lordships have categorically said how it is important to honour and grant pension to the genuine applicants and it is equally important to see that no ineligible person will be getting pension with false and bogus claims. Therefore, by way of abundant caution, if the policy of the Central Government is to see that only genuine applications are considered and processed for grant of pension, it is equally onerous and responsible duty of the Central Government to see that ineligible applicants should not get the pension as it is nothing but an insult to the genuine claimants as observed by the Apex Court. In that process, if decision of the Government was to make it more transparent to process the applications where primary evidence is not available, one cannot find fault with the circulars in question.
61. Then coming to the authority who could issue NARC, we rely on another judgment of the Apex Court reported in JT 2010 (10) SC 547 (Mahender Singh Vs. Union of India), paragraphs 4,5, 5.1, 6,7, 8 and 9 are relevant, which read as under:
"4. The only point for consideration in this appeal is whether the appellant has made out a case for grant of freedom fighters pension in terms of Swatantra Sainik Samman Pension Scheme, 1980 (hereinafter called "the Scheme"). According to the appellant, he remained underground for more than six months as a proclaimed offender. The Scheme provides for the manner of application, availability of application forms, the time within which the applications are to be made, how claims are to be proved etc. In this case, the appellant made the application on 20.06.1981 which within the time prescribed.
5. Now, let us consider the manner in which the claim is to be proved which is provided in Para 9 of the Scheme which reads thus:
"9. HOW TO PROVE THE CLAIMS (EVIDENCE REQUIRED) The applicant should furnish the documents indicated below whichever is applicable.
(a) Imprinsonment/Detention Etc.
Certificate from the concerned jail authorities District Magistrate or the State Government in case of non- availability of such certificates co- prisoner certificate from a sitting MP or MLA or from an ex-MP or an ex- MLA specifying the jail period (annexure I in the application form)
(b) Remained Underground:
(i) Documentary evidence by way of court's/government orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention
(ii) Certificates from veteran freedom fighters which had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non- availability.
(c) Internment or Externment
(i) Order of internment or externment or any other corroboratory documentary evidence.
(ii) Certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. (Annexure II in the application)
Note:
The Certifier veteran freedom fighters in respect of underground suffering, internment/externment and the applicant should belong to the same administrative unit before the reorganization of States and their area of operation must be the same.
(d) Loss of Property Job Etc.
Orders of confiscation and sale of property orders of dismissal or removal from service."
5.1 As stated earlier, the appellant laid his claim only on the ground that he had remained underground for more than four years and from the aforesaid provision, it can be seen that there are two modes of providing the evidence for the same. The first one is by producing documentary evidence and the second where the official records are not forthcoming due to their non-availability, the claim is to be proved by certificates from the veteran freedom fighters who have themselves undergone imprisonment for five years or more. In the case of the appellant, he asserted that the official records are not traceable due to non-availability and submitted a certificate from one Shri Jagdish Singh who was a veteran freedom fighter. Learned Counsel for the appellant also brought to our notice the recommendation dated 09.04.1997 of the Government of Bihar recommending the case of the appellant for payment of freedom fighters pension under the Scheme w.e.f. 01.08.1980.
6. It is true that based on the particulars furnished by the appellant, the State Screening Committee, Bihar recommended the case of the appellant for payment of pension under the Central Scheme. However, the Central Government in the absence of any authenticated records particularly the details about "underground suffering" for a minimum period of six months and finding that the certificate issued by Shri Jagdish Singh is not sufficient rejected the claim of the appellant.
7. In the light of the controversy particularly, the claim of the appellant and the stand taken by the Government of India, we have carefully gone through the eligibility provisions as well as relevant criteria to prove the claim under the Scheme. In his application dated 07.03.1981, the appellant had merely indicated that he remained underground from 1942 to 1946. As rightly pointed out by the respondent, he did not indicate the details of the case in which he had gone underground. Though the appellant has placed record of proceedings which show that the relevant records were not available with them, the fact remains the said Non-availability of Records Certificate (NARC) did not indicate the date of disposal of the case as well as the relevant provisions of the Indian Penal Code. In such circumstances, as rightly pointed out by the respondent, it is not clear whether the said case, if any, was related to freedom struggle and what was the duration of the claimed suffering of the appellant. Though the appellant had given an opportunity to furnish the name of co-accused in the same case, who are presently getting pension on the basis of GR No. 985/1942, the appellant was unable to furnish such details.
8. Insofar as the Personal Knowledge Certificate (PKC) of Shri Jagdish Singh, it is the stand of the Government of India that the same is not acceptable as the certifier was in jail for most of the period of the claimed suffering of the appellant. In view of the same, it could not be possible for the certifier to verify the period as well as the reasons of the claimed suffering of the appellant based on his (Jagdish Singh) personal knowledge.
9. Though the State Advisory Committee and the Government of Bihar recommended the case of the appellant for Central Scheme, it is pointed out by the learned Counsel for the respondent that the same is not binding on the Central Government in the absence of required proof for the same. In other words, the recommendation of the State Government is not final or conclusive and it is for the authority of the Central Government granting such pension to make further inquiry in the matter in terms of various conditions prescribed in the Scheme and to take a final decision."
In this case also, the application was made as early as on 20.06.1981, certificate from veteran freedom fighter and recommendation of the State Government were produced. The certificate was held as not acceptable and recommendation of the Government was not binding on the Central Government was the opinion of the Apex Court. Paragraph 4 refers to the details of the Scheme and how claims have to be made in the application form meant for such claim. Paragraph 5 refers to paragraph 9 of the SSSP Scheme, which is relevant to be mentioned, with regard to the primary and secondary evidence. Paragraph 5.1 refers to again under what circumstances secondary evidence, along with the Non-availability Certificate (NARC), can be produced. Paragraph 6 refers to the facts of the case considered by the Apex Court where screening committee of the State have recommended the case of the applicant for payment of pension under Central Scheme, but the Central Government for want of authenticated record, particularly the details about the underground suffering for a minimum period of six months and also with regard to the genuineness of the certificates issued by co-prisoners, the claim came to be rejected. Paragraph 7 refers to the stand of the Union of India and also reference to eligibility provisions contained in the Scheme. The second part of the paragraph refers to the details of NARC certificates rather what were the deficits in the NARC certificate. Paragraph 8 refers to the details of PKC issued by one Mr.Jagadesh Sigh. In the said case, as the certifier spent most of the time in jail, their lordships held that it was not possible for him to certify that the applicant was underground for a period of six months, as it would not come to the knowledge of certifier, who was most of the time inside the jail. In that context, based on the facts, the claim of the applicant came to be rejected. In this decision the relevance and also the contents of NARC to be compared with the claim of the applicant in the application as envisaged in the Scheme came to be discussed. In other words, on facts, if such a doubt arises in the mind of the sanctioning authority, it is open to the sanctioning authority to compare the details mentioned in the application with that of the PKC or CPC issued by the veteran freedom fighter and then come to a conclusion, whether the applicant deserves sanction of the pension or not. This is what called subjective satisfaction of the sanctioning authority of the Central Government. Therefore, what flows from the above judgment is, how the secondary evidence has to be considered and what is NARC certificate.
62. Annexure 4 circular dated 02.11.1998, as stated above, clearly mentions, who should issue NARC certificate. If NARC certificate is issued by one of the Departments, who had an occasion to know the details of the imprisonment or underground sufferings of the fighter, it is not enough. The State machinery i.e. General Administration of Department through its machinery has to secure from every corner concerned relevant information and then issue verification and eligibility report to the Central Government. In case the applicant says no primary evidence is available, then the responsibility of the State would be to make further enquiries based on the secondary evidence relied upon by the applicant and then issue certificate of NARC. This NARC certificate issued by the State Government would be a document certifying that no primary evidence is available and therefore, secondary evidence i.e. PKC in case of underground sufferings or CPC in the case of imprisonment sufferings has to be taken into consideration while processing the application.
63. Then coming to PKC and CPC, as already stated above the details mentioned in these certificates have to be verified from the material available on record and so also other material, if it is within the knowledge of the Advisory committee and so also the sanctioning authority. Even if, State Advisory Committee recommends, it is not binding on the sanctioning authority of the Central Government to grant pension. There has to be application of mind to the material on record and then based on the independent opinion the application has to be considered and disposed of by the sanctioning authority.
64. Then coming to the facts of the present writ petitions, in none of the cases NARC issued by the State is enclosed. It is either from the jail authority or the police or the Court i.e. mere an endorsement about non-availability of record. The NARC question would arise only in case secondary evidence is relied upon by the applicant. Apparently, the State authority has not issued any NARC as contemplated under the circulars while forwarding the application of the concerned applicant, either the freedom fighter or the dependents of the freedom fighter. Therefore, in order to provide one more opportunity to the claimants or applicants, we are of the opinion, that the rejections of applications by the Central Government deserves to be set aside and it is set aside accordingly.
65. So far as the three writ appeals are concerned, the judgment of the learned Single Judge is set aside. All the applications for NARC have to be reconsidered by the concerned department of the State. Based on the documents produced by the applicants, the State machinery has to process their applications, including issuance of NARC as contemplated under the Scheme as indicated in the circulars. The Writ petitioners are also at liberty to produce additional documents if any, if they desire to produce before the State authority for processing their applications. In case the State is not made a party to the proceedings, the writ petitioners are entitled to give representations to the State authority within two weeks from the date of receipt of a copy of the judgment. We also make it clear that the State machinery has to first look into the applications submitted by the writ petitioners along with the documents and if any defects are found they must intimate the concerned persons to rectify or cure the defects within a reasonable time, thereafter, from the date of rectification of the defects within next three months, the State shall consider and forward the applications in accordance with the procedure contemplated under the Scheme, including issuance of NARC. Once the State Government forward the applications, the Central Government shall consider such applications and dispose of the same in accordance with the procedure contemplated within three months from the date of receipt of applications forwarded with the report of the State Government.
66. So far as W.A. No. 338 of 2010 is concerned, we note, that already arrears are disbursed to the respondent writ petitioner, so far as the pension from March 2012, the Central Government is at liberty to stop the pension till the application of the writ petitioner is disposed of in the light of the above observations.
The Writ Appeals and the Writ Petitions are disposed of in the above terms.