Full Judgment
A.K. Basheer, J.
1. Petitioner who had participated in the Punnapra-Vayalar struggle and had undergone imprisonment as an under trial prisoner was awarded pension by the Central Government under the Freedom Fighters' Pension Scheme, 1972 by Ext. P1 order dated 10.3.1977. However, by Ext. P2 communication dated 18.3.1978 issued by the Ministry of Home Affairs, Government of India, the said grant was cancelled on the ground that the Punnapra-Vayalar struggle was not recognised as a part of freedom struggle by, the Government of India. Subsequently, Government of India recognised Punnapra-Vayalar struggle also as part of the Freedom Movement with effect from 20.1.1998. Therefore petitioner submitted a representation requesting for restoration of his suspended Freedom Fighters' Pension. By Ext. P3 communication dated 19.11.1998, respondent No. 1 requested the Government of Keralato furnish details showing the participation of the petitioner in Punnapra-Vayalar struggle in order to award the Freedom Fighters' Pension to the petitioner. In the meanwhile, Freedom Fighters' Pension Scheme 1972 was modified and liberalised and it was re-named as Swatantratha Sainik Samman Pension Scheme, 1980. Since no final decision was taken by the authorities on the representation submitted by the petitioner, he hadapproached this Court and filed O.P. No. 12633/2001 for appropriate directions in this regard. By judgment dated 16.7.2001 which has been produced as Ext. P4 in this proceeding, the first respondent was directed by this Court to re-consider the case of the petitioner and pass appropriate orders in the matter. It is contended by the petitioner that he,had produced all relevant and necessary documents including the co-prisoner certificate issued by Sri. P.A. Solomon, Ex-M.P., who was also incidentally a grantee under the pension scheme. In addition to the above, petitioner had also enclosed the .Non Availability of Records Certificate (NARC) relating to the case in which he had undergone imprisonment as an under-trial prisoner. Petitioner had also submitted the extract of the school admission register to prove his date of birth. But respondent No. 2 by Ext. P13 communication dated 17.10.2001 informed respondent No. 1 that the available records did not reveal that petitioner was entitled to the Swatantratha Sainik Samman Pension. On the basis of the said report, respondent No. 1 by Ext. P14 communication dated 12.11.2001 rejected the claim of the petitioner for the pension and informed him accordingly. In this Original Petition, Exts. P13 and P14 have been challenged by the petitioner and he has sought for a declaration that he is entitled to get his suspended pension restored in view of the recognition of Punnapra-Vayalar struggle as part of the freedom struggle by the Government of India. There is also a prayer to issue a writ of mandamus or such other writ, order or direction compelling respondent No. 1 to restore the suspended pension to him with effect from 1.3.1978.
2. Respondent No. 1 in the counter affidavit has justified the action taken by the Government and contended that the period of imprisonment undergone by a freedom fighter as an under trial prisoner cannot be treated as eligible incarceration as provided under Clause 4 of the Swatantratha Sainik Samman Pension Scheme, 1980. It has been further contended that there is discrepancy with regard to the alleged participation of the petitioner in the Punnapra-Vayalar struggle. According to respondent No. 1, petitioner had claimed in the representation dated 3.4.1978 that he had remained in jail during 1938-39, and going by his date of birth he might have been only 15 years of age at that time and being an adolescent he could not have been jailed with adults. It is further contended that petitioner had initially given his year of birth as 1923, which he had subsequently claimed to be 1925. There is a further contention by respondent No. 1 that petitioner had not submitted any application in the prescribed proforma after Punnapra-Vayalar struggle was recognised by the Union Government as part of the freedom struggle.
3. I have heard learned counsel for the petitioner, learned Central Government Standing Counsel for respondent No. 1 and the learned Government Pleader for respondent No. 2. It is an admitted fact that by virtue of Ext. P1 dated 10.3.1977 petitioner was granted Freedom Fighters' Pension at the rate of Rs. 150/- per mensem from 7.1.1974 to 30.9.1976 and at the rate of Rs. 200/- per mensem with effect from 1.10.1976. It is also not in dispute that petitioner had received pension on the strengthof the above order till 1.3.1978. There is no controversy that petitioner was granted the pension under Ext. P1 on the basis of his claim that he had participated in Punnapra-Vayalar Struggle. Ext. P2 order issued by respondent No. 1 will show that the pension granted to the petitioner was cancelled or revoked solely on the ground that Punnapra-Vayalar Struggle was not recognised as part of the freedom struggle by the Government, of India. This necessarily implies that the authority concerned was totally satisfied and convinced as to the eligibility of the petitioner to receive the pension. Therefore the stand taken by the respondents in Exts. P13 and P14 cannot be justified.
4. It is also pertinent to note that the petitioner had produced co-prisoner'scertificate from one Sri. P.A. Solomon who is a former Member of Parliament andwho is also a beneficiary under the Swatantratha Sainik Samman Pension Scheme.The controversy now being attempted to be raised by the respondents with regard tothe age of the petitioner cannot also be accepted. Petitioner had specifically contendedthat he had participated in Punnapra-Vayalar struggle arid had undergone imprisonmentas an under trial prisoner during 1946-47. No document has been produced before meto show that petitioner had a case that he had participated in the struggle during 1938-39and he had based his claim for pension only on the strength of that participation. Bethat as it may, since the petitioner had produced the co-prisoner certificate and theextract of the school admission register and more importantly the Non Availability ofRecords Certificate relating to his under trial imprisonment, if is idle for the respondentsto contend that petitioner is not eligible for the pension. As observed earlier, the verysame authorities had found the petitioner eligible for such pension 1977. It is totallystrange and baffling as to how the very same authorities could take such a totallycontradictory stand at a later stage.
5. The learned Central Government Standing Counsel has contended that the imprisonment undergone by the petitioner as an under trial prisoner will not make him eligible to receive the pension, in view of the fact that petitioner was subsequently, acquitted in the case. The learned counsel has relied on Explanation 3 of Clause 4 of the Pension Scheme which reads as follows:
'3. In the ease of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered.'
In answer to this contention, learned counsel for the petitioner has cited before me a decision rendered by a Division Bench of this Court in Union of India v. Lonan Benjamin reported in (2002 (1) KLT 46) which is directly on the point. It has been held by this Court in the said decision after elaborately considering the scope and ambit of the various clauses of the Scheme and also the laudable object which is sought to be achieved, that the period of imprisonment undergone by a freedom fighter as an under trial prisoner shall also be reckoned as part of the eligibility period ofincarceration as contemplated in Explanation 3 of Clause 4 of the Scheme mentioned above. I am in respectful agreement with the view taken by the Division Bench.
6. The learned Central Government Standing Counsel has relied on a decision of the Supreme Court in Union of India and Ors. v. Manohar Lal Azad and Anr. (Civil Appeal No. 6210/2000) and urged that new eligibility criteria cannot be pressed into service to enlarge the scope of eligibility for pension, contrary to the spirit of the Scheme. In the case mentioned supra, the issue involved was whether a freedom fighter who had not undergone imprisonment for a minimum period of 6 months mentioned in Cl. (a) of para. 4 of the Scheme was entitled to receive the pension. I am afraid the said decision of the Supreme Court has no bearing or relevance on the question involved in this case.
7. HaVing regard to the entire facts and circumstances of the case, I am of the view that the respondents were not justified in disallowing the Swatantratha Sainik Samman Pension to the petitioner. Exts. P13 and P14 are therefore liable to be quashed and I do so. With regard to the prayer for a direction to restore the suspended pension to him with effect from 1.3.1978, it has to be held that petitioner will not be entitled to get the pension with effect from that date, apparently for the reason that Punnapra-Vayalar struggle was recognised as part of the Freedom Movement only with effect from 20.1.1998. Therefore it will be only just and proper that the petitioner is given the benefit of Swatantratha Sainik Samman Pension Scheme, 1980 only with effect from 20.1.1998, especially in view of the fact that he was found eligible for the pension rightly or wrongly by virtue of Ext. P1 order dated 30.3.1977.
8. Therefore this Original Petition is allowed. Exts. P13 and P14 are quashed and set aside. It is declared that petitioner is entitled to get pension under the Swatantratha Sainik Samman Pension Scheme, 1980 with effect from 20.1.1998. Respondent No. 1 is directed to issue necessary orders in this regard expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. The entire arrears of pension shall be paid on or before 31.1.2003.