The grievance of the petitioner is in regard to the non- consideration of his claim for grant of Kerala State Freedom Fighters' Pension, by the respondents. The petitioner, who is now aged about 89 years, claims that he is a freedom fighter, who had actively participated in the "Punnapra-Vayalar Movement", which is recognised as part of the national freedom struggle. According to him, he had to remain underground to avoid a warrant of arrest issued for his arrest in connection with a case registered as PE No.7/1122 (ME), for involvement in the said freedom movement. It is brought to notice that the Freedom Fighters' Pension Rules, 1971 was framed by the respondent State Government, as published in the Kerala Gazette No.22 dated 8.6.1971. It is averred that the petitioner had made applications successively in 1985-1989, which, according to the respondents, were not considered for want of sufficient proof. Therefore, in the year 2000, the petitioner was W.P.(C).3953/13 - : 2 :-
again constrained to submit an application for grant of freedom fighters' pension, with all requisite documents in support of his claim. This Court as per Ext.P-6 judgment rendered on 29.8.2008 in W.P.(C).No.643/2006, had directed the competent authority concerned (District Collector, Alappuzha) to examine the grievance of the petitioner for appropriate action expeditiously, in accordance with law. According to the petitioner, nothing thereafter had transpired pursuant to Ext.P-6 judgment. It is further averred that the petitioner was thereupon constrained to submit another representation before the Chief Minister of the State for necessary orders for grant of pension, with additional documents. According to the petitioner, he has been consistently pursuing his course of action, but no fruitful action has emerged and, therefore, he was constrained to file the aforecaptioned Writ Petition (Civil) with the following prayers:
"i. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to grant Freedom Fighters Pension to the petitioner with effect from the date of application.
ii. Issue such other writ, order or direction which this Honourable Court deems fit in the nature and circumstances of the case."
2. Ext.P-1 is the communication issued in August, 1999, by the 1st respondent District Collector, Alappuzha, informing the W.P.(C).3953/13 - : 3 :-
petitioner that his claim cannot be considered as the application of the petitioner was not accompanied by sufficient proof from the jail authorities or by a certificate from prominent freedom fighters, who suffered imprisonment for not less than 2 years. In the application subsequently pursued by the petitioner in September, 2000, the petitioner had submitted his own affidavit as per Ext.P-2 dated 7.9.2000 in support of his claim. He had also submitted Ext.P-3 certificate dated 1.6.1981 issued by Sri.P.K.Chandranandan, Ex- Member of the Legislative Assembly, in proof of his claim of having remained in exile/underground on account of the participation in the said movement. It is pointed out that Ext.P-3 certificate was also earlier submitted by the petitioner in the year 1985. In Ext.P-3 it is certified that the petitioner was a freedom fighter and he was an accused in Case No.P.E.7/1122 ME in connection with the warrant issued for his arrest and that he was forced remain underground from ME 10.3.1122 to 15.11.1122 to avoid warrant of arrest and that the petitioner deserves freedom fighters' pension, etc. The petitioner had also produced Ext.P-5 certificate dated 31.8.2000 issued by one Sri.Ettiyathi Vasudevan, certifying about the participation of the petitioner in the freedom struggle and that W.P.(C).3953/13 - : 4 :-
he had remained underground for more than 6 months from 10.3.1122 to 15.11.1122 (ME). The author of Ext.P-5 certificate had suffered actual imprisonment during the freedom struggle and was lodged in Sub Jail Alappuzha, and Central Jail, Trivandrum for the period from 4th Thulam 1122 to 33rd Thulam 1123 (ME). Ext.P- 5 has been relied on as a personal knowledge certificate issued by a well known freedom fighter. Ext.P-7 is the representation dated 9.11.2010 submitted by the petitioner before the Chief Minister, pursuant to Ext.P-6 judgment. Ext.P-8 is the certificate dated 22.10.2010 issued by the Superintendent, Special Sub Jail, Alappuzha, certifying that all the records in connection with the Punnapra-Vayalar Movement are not traceable and are not hence available for scrutiny or verification, etc.
3. The 2nd respondent State Government has filed a counter affidavit dated 31.7.2013 in the matter. It is stated therein that the Kerala Freedom Fighters' Pension Scheme came into effect from 1.4.1971 onwards and that the last date fixed for receipt of the application by the District Collectors concerned was 15.8.1995 and later, the cut off date for submitting application was refixed as 31.3.1994 vide circular dated 31.12.1993. That as per the said W.P.(C).3953/13 - : 5 :-
circular, the applications received after 31.3.1994 will be considered only on production of documentary evidence/official records such as warrant of arrest, court records & records clearly showing the applicants' sufferings in connection with the freedom struggle. That the application dated 15.3.1999 submitted by the petitioner was verified by the District Collector, who had informed the petitioner vide letter dated 27.4.1999 that his application cannot be considered as he has not produced jail records, copy of arrest warrant or certificate from prominent freedom fighter, who has undergone imprisonment for not less than 2 years and Central and State Freedom fighter's pensioner. Pursuant to Ext.P-6 judgment dated 29.8.2008, instruction was given to the petitioner as per letter dated 29.10.2008 to produce the jail records, court order or arrest warrant or underground miseries. The applicant has not produced the above records, etc. and his request was rejected on account of lack of proof. Further it is stated that Ext.P-3 certificate issued by Sri.P.K.Chandranandan, ex-MLA, is not in the prescribed form and that Ext.P-5 personal knowledge certificate issued by Sri.Ettiyathi Vasudevan was found to be defective, as the certifier therein has actually suffered jail sufferings only for a period of one year and as W.P.(C).3953/13 - : 6 :-
per the Kerala Freedom Fighters' Pension Scheme, the certifier should be one, who has proved jail sufferings for a minimum period of 2 years. Accordingly, it is stated that Exts.P-3 and P-5 certificates are not acceptable and cannot be treated as secondary evidence. That in the absence of primary evidence, the applicant is obliged to prove the necessary facts at least by cogent materials in acceptable secondary evidence, which is lacking in the instant case, etc. Further, that though the certifier of Ext.P-5 (Sri.Ettiyathi Vasudevan), has stated that he has suffered actual imprisonment for more than 2 years during freedom struggle, the specific period shown therein is only for a period of one year [4th Thulam 1122 (ME) to 3rd Thulam 1123 (ME)]. Accordingly, it is submitted that Ext.P-7 representation submitted by the petitioner was rejected, since the petitioner could not produce necessary secondary evidence by way of documents as required by the Kerala Freedom Fighters' Pension Rules and the same was communicated to the petitioner as per Government letter No.49539/FFP.B3/2010/GAD dated 6.9.2010. Further it is stated that Ext.P-8 non-availability certificate issued by the Jail Superintendent, Alappuzha, cannot substitute for the actual arrest warrant, etc. W.P.(C).3953/13 - : 7 :-
4. Heard Sri.S.Sanal Kumar, learned counsel appearing for the writ petitioner and Sri.Saigi Jacob Palatty, learned Senior Govt Pleader appearing for the respondents.
5. It is contended by Sri.S.Sanal Kumar, learned counsel appearing for the writ petitioner that the procedures prescribed for grant of Central freedom fighters' pension by the Central Government and that for the State freedom fighter's pension prescribed by the State Government are distinct in many ways. Further that the State Government is also the recommending authority in respect of the Central scheme and a perusal of the averments in the counter affidavit would reveal that the respondent State officials have relied on many of the provisions of the Central scheme, which are not per se applicable to the State scheme, as the State scheme is governed by separate set of rules, called "Kerala Freedom Fighters' Pension Rules, 1971". The procedure for conducting inquiries for verification of the claims of freedom fighters' pension under the State scheme is stipulated in Rule 20 of the Kerala Freedom Fighters Pension Rules, 1971 (published in Kerala Gazette No.22 dated 8.6.1971), which reads as follows:
"20. The following instruction regarding the enquiry to be made for the grant of pension are also issued :-
W.P.(C).3953/13 - : 8 :-
(i) A Freedom Fighter or other claimant should submit the application form in duplicate, one copy direct and another copy through the Tahsildar concerned to the District Collector concerned furnishing all the particulars.
(ii) In cases where all material particulars are furnished in a petition, the Collector need not insist on the application forms being filled in, but initiate action on the petition itself. The application form may however be separately sent to the applicant for being filled in and submitted for purposes of record.
(iii) On receipt of a copy of the application from the applicant or from the District Collector, the Tahsildar will conduct enquiries personally or through his subordinates who shall in no case be lower in rank than Firka Revenue Inspector. The Enquiry Officer shall personally interview the Freedom Fighter or claimant or his/her guardian and such other persons he considers necessary to satisfy himself whether the conditions or eligibility viz. Income limit, etc., are satisfied. The Tahsildar will submit the report to the Collector promptly with his specific recommendations in the Form attached as Annexure V.
(iv) The period of imprisonment should invariably be verified with reference to jail records. If the applicant, for any reasons, is unable to furnish an extract from the convict register, the Collector may address to the Superintendent(s) of the Jail(s) concerned and obtain a extract from the convict register pertaining to the Freedom Fighter.
(v) Production of certificate issued by the concerned Jail authorities need not be insisted on from the Freedom Fighters. They need only be asked to furnish full particulars of their imprisonment, with period and dates, as accurately as they can with reference to their memory or any records in their possession. The Collector should get these particulars verified by correspondence direct with the Jail Superintendent concerned. In cases where the Freedom Fighters underwent imprisonment in a Jail which is not outside Kerala State, the Collector should report the particulars immediately to Government who will thereupon correspond with the other States concerned for necessary verification. Meanwhile, the Collector should complete the enquiry regarding the economic status, etc., of the Freedom Fighter or his family.
(vi) In the absence of records to prove imprisonment the fact that the applicant had received fee concession sanctioned to Freedom Fighters/Political sufferers in G.O. MS. No.342/Edn. dated 15-6- 1961, G.O. MS. No. 106/Edn. dated 18-2-1962, G.O. MS No. 163/Edn. dated 14-3-1963, G.O. MS. 4058/64/Edn. dated 28-8-
W.P.(C).3953/13 - : 9 :-
1964 and G.O. MS. 88/66/Edn. dated 24-2-1966 may be accepted as proof of his eligibility for receiving the pension subject to the other conditions being satisfied.
(vii) In cases where the applicant is a minor son or minor daughter, the Tahsildar/the Revenue Inspector should ascertain the age of the applicant by such verification and enquiry as are necessary. The correct age of the minor son or daughter of the Freedom Fighter should be incorporated in his report. Verification of age will be done with reference to the certificate of date of birth to be produced by the claimant or any other reliable record.
(viii) When the verifying officer interviews personally the Freedom Fighter or other claimant, he shall also verify the identity marks.
(ix) The Collector will satisfy himself that the enquiry has been full and complete before sanctioning the pension.
(x) On receipt of a copy of the application direct from the claimant, the Collector will watch whether the Tahsildar's report is received within a reasonable time and issue reminders in case the report is not received within a reasonable time.
(xi) In case the pension is granted to the widow of a Freedom Fighter, the Collector shall cause a half yearly verification to see whether the widow get remarried.
(xii) If the pension has to be discontinued with reference to rule (viii), the Collector may order immediate discontinuance."
6. A perusal of the averments in the counter affidavit does not necessarily disclose that a proper inquiry by the Revenue authorities like Tahsildar, as contemplated in Rule 20, has been conducted by those officials to verify the claims of the petitioner. It is not in much serious dispute that Sri.P.K.Chandranandan, former Member of Legislative Assembly, was a prominent freedom fighter, who had participated in the Punnapra-Vayalar Movement and that W.P.(C).3953/13 - : 10 :-
he was also a recipient of the State freedom fighter's pension. The authorities have discarded Ext.P-3 on the mere ground that Ext.P-3 certificate issued by Sri.P.K.Chandranandan, is not in the prescribed form. A perusal of the State rules does not show that any prescribed format has been insisted therein for acceptability of such a certificate. Whereas it appears that the prescribed proforma for such certificate is the one stipulated as per the Central scheme framed by the Government of India. Therefore, the rejection of Ext.P-3 on the ground that it is not in the prescribed proforma does not appear to be based on proper and relevant considerations of the matters. Moreover, it is not in dispute that the author of Ext.P-5 certificate Sri.Ettiyathi Vasudevan, had taken prominent part in the national freedom struggle and had been recipient of the Central freedom fighter's pension under the Government of India in the Ministry of Home Affairs' order No.19/543/73-FFS2 dated 22.7.1993, as clearly stated therein. The veracity of the said statement made by Sri.Ettiyathi Vasudevan is Ext.P-5 is not in dispute by the official respondents. Though in Ext.P-5 it is stated that Sri.Ettiyathi Vasudevan had actually suffered imprisonment for more than 2 years, the specific period mentioned therein is only for W.P.(C).3953/13 - : 11 :-
a period of one year (4th Thulam, 1122 to 3rd Thulam 1123). This appears to be the ground for rejection on the basis that the certifier in Ext.P-5 has not actually suffered at least 2 years' imprisonment. A perusal of the State Rules does not show that any prescribed proforma has been given therein for issuance of such certificate and moreover, those rules do not stipulate that the certifier should have suffered imprisonment for not less than 2 years. On the other hand, it appears that the proforma of Ext.P-5 is on the basis of the prescription in the Central scheme made by the Government of India and the requisite norms that the certifier of such certificates should have suffered not less than 2 years of actual imprisonment is also one stipulated by the Central Government in the Central scheme. Since the rules and the norms issued by the State Government do not make any such stipulation, it is not proper to reject Ext.P-5 on the mere ground that the certifier of Ext.P-5 has suffered imprisonment for less than 2 years. Therefore, the rejection of the petitioner's claim appears to be on irrelevant considerations and not after reckoning crucial and relevant aspects of the matter. Hence, the impugned decision making process, which led to rejection of the petitioner's claim, appears to be vitiated on account of these factors.
W.P.(C).3953/13 - : 12 :-
7. True that many ineligible persons might take up fake claims and therefore, the Government will have to make strict scrutiny or verification of such claims. But hyper-technicality should not be the main perspective to govern such decision making process. The essence and substance of the requirements should be properly examined and verified by the Governmental authorities. If the norms are fulfilled, then the respondents are duty bound to consider such claims with care and circumspection. As per Rule 4 of the Kerala Freedom Fighters Pension Rules, 1971, a "freedom fighter" means any person, who, on account of participation in the National Movement;
(a) had been sentenced to imprisonment for not less than six months; or
(b) had been kept under detention (including detention as under-
Period of normal remission upto one month will be treated as part of actual imprisonment)
(c) was killed in action; or
(d) was sentenced to death; or
(e) died due to police or military firing or lathi charge; or
(f) lost his/her job or means of livelihood or the whole or substantial part of his/her property; or
(g) became permanently incapacitated due to such participation or affected with grave disease for life, or
(h) had remained underground for more than six months consequent on warrant for arrest having been issued against W.P.(C).3953/13 - : 13 :-
him, and
(i) had worked for a period of not less than 3 years on the popularisation of Khadi or Hindi before 15th August, 1947 [G.O(Rt.)No. 10146/94/GAD dated 24.12.94.]"
The case set up by the petitioner is that he had remained underground for more than 6 months consequent on warrant of arrest having been issued against him. The respondents do not even have a whisper of case that Exts.P-3 and P-5 certificates are false or fabricated. The main objection set up by them is that Ext.P-3 certificate issued by Sri.P.K.Chandranandan, former Member of the Legislative Assembly, is not in the prescribed proforma and further that the author of Ext.P-5 has not actually suffered imprisonment for more than 2 years during the freedom struggle, etc. As already held hereinabove, the said ground of rejection is untenable and irrelevant going by the content and mandate of the State rules. Both the certificates have clearly certified that the petitioner had participated in the Punnapra-Vayalar freedom struggle and that he was an accused in case registered as PE No.7/1122 (ME) [1946], proceedings of which were issued by the Special First Class Magistrate's Court, Alappuzha, on account of his participation in the Punnapra-Vayalar Movement, etc. and that the W.P.(C).3953/13 - : 14 :-
petitioner had to remain underground for more than 6 months for the period from 10.3.1122 (ME) to 15.11.1122 (ME), etc. However, this Court is not proposing to issue a writ of mandamus so as to direct the respondents to grant the freedom fighter's pension, for those are matters which should be properly and effectively considered by the competent authorities of the respondents. Accordingly, the impugned rejection order passed by the Government in their letter No.49539/FFB.B3/2010/GAD dated 6.9.2010 is declared as ultra vires and illegal and is held that the same is liable to be quashed and it is so accordingly ordered.
8. Accordingly, the matter is remitted to the competent authority of the 2nd respondent State Government for consideration of the matters afresh. In this regard, the 2nd respondent should examine whether the core and essential requirements of Rule 4(h) are established on the basis of Exts.P-3 and P-5. It is to be borne in mind that the petitioner has been pursuing his course of action for grant of freedom fighter's pension from 1980s onwards. It is also brought to notice that both the authors of Exts.P3 and P-5 (Sri.P.K.Chandranandan as well as Sri.Ettiyathi Vasudevan) are now no more. So the 2nd respondent may conduct their own discreet W.P.(C).3953/13 - : 15 :-
inquiries as to whether those certifiers were bona fide freedom fighters in the Punnapra-Vayalar Movement and whether there are valid grounds to discard the contents of their certifications. If the 2nd respondent State Governmental authorities have no reasons to suspect the bonafides of the certifiers of Exts.P-3 and P-5 (viz., Sri.P.K.Chandranandan as well as Sri.Ettiyathi Vasudevan) or to doubt the correctness of the contents of those certificates, then the request of the petitioner is to be considered on the basis of such available materials. The certifiers are now no more and the originals of the court records are also not now available, as disclosed in Ext.P-8. The petitioner is now aged 89 years and is said to be suffering from serious ailments. Therefore, the 2nd respondent may take a realistic and pragmatic approach, more particularly, in the light of Rule 23A of the State Freedom Fighters' Pension Rules and on the basis of the preponderance of probabilities, rather than a dogmatic insistence for proof beyond reasonable doubt.
9. It is also to be borne in mind that the Apex Court in the case Kamlabai Sinkar v. State of Maharashtra & Ors. reported in (2012) 11 SCC 754 [Civil Appeal No.5344/2012, judgment dated 20.7.2012] has held that the standard of proof applicable in the W.P.(C).3953/13 - : 16 :-
case of consideration for grant of freedom fighter's pension for those who remained as underground freedom fighter is to be determined on the basis of the preponderance of probabilities and not on the touchstone of test of "beyond reasonable doubt". In that case, it was found that the applicant's husband had filed application along with requisite documents as stipulated in the Government norms and also had enclosed therewith the recommendations of the body concerned and held that when the Collector had also recommended the appellant's case, there was no reason for the State Government to reject his application without assigning any reason and once the claim of the appellant was probabilised, the State is bound to grant him freedom fighter's pension and moreover, the claim of the appellant's husband was neither fraudulent nor was it without supporting materials. Accordingly, the respondent State therein was directed to grant freedom fighter's pension with arrears to the appellant therein expeditiously, etc. It was also held by the Apex Court in the case Gurdial Singh v. UOI, reported in (2001) 8 SCC 8, in para 7, as follows:
"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 W.P.(C).3953/13 - : 17 :-
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 the Scheme had 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 touchstone 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."
10. It is also brought to the notice by the learned counsel for the writ petitioner that the respondent State Government has amended the State Freedom Fighters' Pension Rules as per G.O(P).
No.16/2012/ GAD dated 20.1.2012, whereby Rule 23(A) has been introduced, which empowers the State Government to sanction Kerala Freedom Fighters' pension/Family Pension/Continuous Pension, in relaxation of Rule 23 whenever the Government are undoubtedly convinced of the genuineness of the claim, etc. The issuance of the said amendment incorporating Rule 23(A) has also been confirmed by the learned Senior Govt Pleader appearing for the respondents. Rule 23 [as introduced in G.O(P). 62/2008/GAD dt.5.2.2008) reads as follows:
"Rule 23. Applications/Review/Appeal Petitions received after 31.3.1994 will be considered only on production of documentary W.P.(C).3953/13 - : 18 :-
evidences Official records such as warrant of arrest, Court records, Jail records clearly showing the applicant's suffering in connection with the freedom struggle."
Rule 23(A) [as introduced in G.O(P). 16/2012/GAD dt.20.1.2012) provides as follows:
"Rule 23(A):- Government shall have the power to sanction Kerala Freedom Fighters Pension/Family Pension/Continuous Pension in relaxation of Rule 23 whenever the Government are undoubtedly convinced of the genuineness of the claim. This shall be applicable to all cases in which sanction for pension has already been ordered by Government."
Therefore, when Rule 23 had provided that applications, review, appeal petitions received after 31.3.1994 will be considered only on production of documentary evidence from official records such as warrant of arrest, court records, jail records clearly showing the applicant's suffering in connection with the freedom struggle, the the rigour of Rule 23 could be relaxed in fit cases in exercise of the State Government's discretion. The petitioner is now aged 89 years old and that proper consideration of the claim should not be delayed any further. Accordingly, the competent authority of the 2nd respondent State Government is directed to take a fair, just and flexible approach in the matter and deal with the claim of the petitioner based on Exts.P-3 and P-5 and after due advertence to Rule 23(A) of the amended rules as well as the aforementioned Apex W.P.(C).3953/13 - : 19 :-
Court rulings on the subject as well as the observations of this Court in this judgment. As the petitioner is quite old, a reasonable opportunity may be afforded to him through his authorised representative/authorised counsel. The 2nd respondent will afford such an opportunity to the petitioner through his representative and orders should be passed without much delay, at any rate, within a period of 2 months from the date of production of a certified copy of this judgment. The State Government should examine the documents as produced in the present Writ Petition.
With these observations and directions, the Writ Petition (Civil) stands finally disposed of.