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2003 DIGILAW 272 (CAL)

Kalipada Das v. UNION OF INDIA

2003-05-23

Indira Banerjee

body2003
Judgment 1. 1. IN this writ petition, the petitioner has challenged an order dated 30th July, 2001 passed by the Under Secretary to the Government of INdia, Ministry of Home Affairs rejecting the claim of the petitioner for pension under Swatantrata Sainik Samman Scheme, 1980. 2. TO mark the completion of twenty five years of Indian Independence, the Government of India announced a scheme named the Freedom Fighters' Pension Scheme, 1972 to reward eligible freedom fighters for their contribution to the cause of the country's freedom. The said scheme, which provides for pension to freedom fighters came into force with effect from 15.8.1972. The grant of pension under the aforesaid scheme was intended to be an honour conferred on freedom fighters for their immense personal sacrifice which won the country freedom from British Rule. 3. IN 1980, the said Scheme was liberalized, and in keeping with the object of the scheme to honour the freedom fighters, renamed the Swatantrata Sainik Samman Scheme, 1980. 4. WHEN the Scheme was first announced in 1980 freedom fighters were sanctioned pension of Rs. 2007- per month. The amount of pension payable to a freedom fighter was since been enhacned from time to time and is now Rs.1,500/- per month. In case of a freedom fighter otherwise eligible for pension, who is no longer alive, one dependent member of his/her family is also entitled to pension at the rates specified in the Scheme. The dependents include as per sequence of preference, the widow and/or widower if he or she has not remarried, unmarried and unemployed daughter, mother and father. 5. THE eligibility criteria for pension as laid down in the Scheme is extracted hereinbelow for convenience : "WHO IS ELIGIBLE For the purpose of grant of Samman Pension under the Scheme, a freedom fighter is :- (A) A person who had suffered a minimum imprisonment of six months in the mainland Jails before Independence. Ex-INA personnel are also eligible for pension if the Imprisonment/detention suffered by them was outside India for six months or more. In case of women and SC/ST freedom fighters the minimum period of actual imprisonment for eligibility of pension is three months. EXPLANATION i) Detention under the orders of the competent authority will be con- sidered as imprisonment. ii) Period of normal remission upto one month will be treated as part of actual imprisonment. In case of women and SC/ST freedom fighters the minimum period of actual imprisonment for eligibility of pension is three months. EXPLANATION i) Detention under the orders of the competent authority will be con- sidered as imprisonment. ii) Period of normal remission upto one month will be treated as part of actual imprisonment. iii) In case of a trial ending in conviction, under trial period will be counted towards imprisonment suffered. iv) Broken period(s) of imprisonment will be totalled up for computing the qualifying period. v) A person who was sentenced for imprisonment for six months or more, but was released prematurely on account of general amnesty and not on account of tendering apology/furnishing a bond or undertaking for good behavior will be treated as eligible for pension. (B) A person who remained underground for six months or more provided he was :- i) a proclaimed offender or ii) one on whom an award for arrest/head was announced ; or iii) one whose detention order was issue but not served. EXPLANATION Voluntary underground suffering or self-exile, suffering for party work under the command of the party leader are not recognized for consideration for grant of Samman Pension. (C) A person who was interned in his home or externed from his district under the orders of the competent authority for six months or more. (D) A person whose property was confiscated or attached and sold due to participation in the National Freedom Struggle under the orders of the competent authority. (E) A person who permanently incapacitated during firing or lathi charge. (F) A person who lost his Government job (Central or State Government, including job in local bodies) and thus deprived means of livelihood for participation in the National Freedom Struggle. (G) A person who was awarded the punishment of 10 strokes of caning/flogging/whipping. WHO IS A MARTYR ? A MARTYR is a person who died or who was killed in action or in detention or was awarded capital punishment while participating in the National Freedom Struggle for emancipation of India. It will included an ex-INA or ex-Military person who died while fighting against the British. WHO ARE ELIGIBLE DEPENDENTS For the purpose of grant of Samman Pension, family includes (if the freedom fighter is not alive) widow/widower if she/he has not since remarried, unmarried/unemployed daughters, mothers and fathers. It will included an ex-INA or ex-Military person who died while fighting against the British. WHO ARE ELIGIBLE DEPENDENTS For the purpose of grant of Samman Pension, family includes (if the freedom fighter is not alive) widow/widower if she/he has not since remarried, unmarried/unemployed daughters, mothers and fathers. Nor more than one eligible dependent can be granted pension and in the event of availably of more than one dependent the sequence of eligibility will be widow/widower, unmarried/unemployed daughters, mother and father." 6. AN application for pension is required to be made in the prescribed application form supplied by the Government of India to the applicants for pension. The documents required to be furnished by an applicant for pension is stipulated in the scheme itself. The relevant provisions of the said scheme in this regard are extracted herein-below : "HOW TO PROVE CLAIMS (EVIDENCE REQUIRED) The applicants should furnish the documents indicated below whichever is applicable in order to prove his claimed sufferings for grant of pension under the Scheme. (A) IMPRISONMENT/DETENTION :- Certificate from the concerned jail authority, District Magistrate or the State Government, indicating period of sentence awarded, date of admission, date or release and reasons for release. In the absence of such certificates from official records, a Non-availability of Records Certificate (NARC) from the concerned authorities along with co-prisoners' certificates (CPC) as under :- i) Two co-prisoners' certificate from the freedom fighter pensioners who had a proven jail suffering of one year. ii) One co-prisoners' certificate from a sitting MP or MLA or from an ex-MP or an ex-MLA specifying his jail period and that of the applicant (Annexure-l) in the applicant form. (B) Documentary evidence by way of Court's/Government's order proclaiming the applicant as an offender, announcing an award on his head or for his arrest or ordering his detention. In the absence of such certificates from official records, a Non-availability or Records Certificate from the concerned authorities along with a certificate from a prominent freedom fighter who had undergone imprisonment for a period of at least two years or more. (C) INTERMENT OR EXTERMENT :- Order interment or exterment issued by the competent authority from the official records. In the absence of "official records, a Non-availability of Records Certificate (NARC) from the concerned authorities along with a certificate from prominent freedom fighters who had themselves undergone suffering of imprisonment for two years or more. (C) INTERMENT OR EXTERMENT :- Order interment or exterment issued by the competent authority from the official records. In the absence of "official records, a Non-availability of Records Certificate (NARC) from the concerned authorities along with a certificate from prominent freedom fighters who had themselves undergone suffering of imprisonment for two years or more. (Annexure-ll in the application). EXPLANATION The certifying freedom fighters in respect of underground suffering, internment/externment and the applicant should belong to the same administrative district before reorganization of States and the 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 taking part in the National Freedom Struggle. EXPLANATION Persons whose property was restored and persons who were reinstated in service before a period of two years from their dismissal or removal from service and were in receipt of benefits or pay and allowances are not eligible for pension. (E) PERMANENT INCAPACITATION :- (i) Certificate from the District Magistrate stating that permanent incapacitation was done by bullet injury/Lathi charge sustained during participation in the National Freedom Struggle. (ii) Medical certificate from the Civil Surgeon in support of the handicap. (F) PUNISHMENT OF 10 STROKES OF CANING/FLOGGING/ WHIPPING : Copies of orders passed by the competent authority from the official records. (G) MARTYRDOM :- Evidence from official records or newspapers of the relevant time in support of filled in action or in detention, etc." 7. AFTER an application for pension under the said scheme is made to the Government of India, the claim of the applicant for pension is referred to the State Government for scrutiny in consultation with the State Advisory Committee if any. The scheme provides that, if upon scrutiny and/or verification, the State Government is of the view that the claim is genuine and recommends that pension might be granted to the applicant, the Government of India shall scrutinize the claim, and grant pension to the applicant as per the policy guidelines of the, Government in this regard, if the applicant is found eligible for pension. 8. THE petitioner claims to be a freedom fighter. According to the petitioner he took part in the Quit India Movement and was also involved in the establishment of Tamralipta Jatiya Sarkar, a parallel Government which is alleged to have virtually dislodged British Rule in Tamralipta (Tamluk). 8. THE petitioner claims to be a freedom fighter. According to the petitioner he took part in the Quit India Movement and was also involved in the establishment of Tamralipta Jatiya Sarkar, a parallel Government which is alleged to have virtually dislodged British Rule in Tamralipta (Tamluk). The British Government initiated criminal proceedings against the petitioner being Nandigram P.S. Case No. 30(X)42 dated 2(X)42 and Case No. 16(11)43 dated 25(11)43 and the petitioner was convicted for a period of nine months from 29/3/43 to 28/12/43. 9. ON or about 17th August, 1981 the petitioner applied for pension under the Swatantrata Sainik Samman Scheme, 1980 along with a certificate of one Sri R. N. Giri. 10. THE respondents did not consider or dispose of the application of the petitioner for pension for over 17 years. In the circumstances, the petitioner was constrained to file an application under Article 226 of the Constitution of India in this Court being W.R No. 18797(W) of 1998. THE said writ application was disposed of by an order dated 22nd December, 1998 which is extracted herein-below : "If the petitioner, in accordance with the order passed by the Central Government, produces all the documents the case of the petitioner should be considered by the State and after considering the same if it appears that the petitioner is entitled to get such pension in that case, the case of the petitioner may be referred to the Central Government. THE Central Government, after receiving the same shall pass a reasoned order within six weeks from the date of receipt of the same. THE writ petition is, thus, disposed of." Pursuant to the aforesaid order of this Court, Deputy Secretary to the Government of West Bengal (Home PSP) enquired into the claim of the petitioner and found the same to be genuine. By an Office Memo No. 433- HPS/HIE-4(45802)/82 dated 7.4.2001 the Deputy Secretary to the Government of West Bengal (Home PSP) recommended the case of the petitioner to the Government of India for grant of pension. 11. THE petitioner has in the writ petition annexed an application for information in HIGH COURT FORM NO. (M) 55A Civil 39 (Criminal) where-from it appears that the name of the applicant appeared in the register of arrest for imprisonment at Tamluk Court. From the said application, it appears that the Case No. 30(x)42 dated 2. x 42. 11. THE petitioner has in the writ petition annexed an application for information in HIGH COURT FORM NO. (M) 55A Civil 39 (Criminal) where-from it appears that the name of the applicant appeared in the register of arrest for imprisonment at Tamluk Court. From the said application, it appears that the Case No. 30(x)42 dated 2. x 42. and 16(11)43 dated 25.11.43 under Section 56(4) and 38(5) Defence 'of India Rules was initiated against the petitioner and that warrant of arrest had been issued against him. 12. THERE was apparently an order of conviction of the petitioner for 9 months from 29th March 1943 to 28th December, 1943 against the Nandigram Police Case referred to above. On enquiry the claim of the petitioner having gone underground to avoid arrest has been found correct, by the State Government and accordingly the State Government has recommended the case of the petitioner to the Central Government for pension. The Under Secretary to the Government of India, Ministry of Home Affairs has however, rejected the claim of the petitioner by an order/memo dated 30th July, 2001 which is impugned in this writ application. 13. THE Under Secretary to the Government of India, Ministry of Home Affairs, Freedom Fighters Division has affirmed an Affidavit-in-Opposition to the writ application on 6th December, 2001 wherein he has admitted that case of the petitioner has been recommended by the State of West Bengal. 14. IN the said Affidavit-in-Opposition, it is contended that although in the application for pension the petitioner claimed he was sixty four years of age, the petitioner did not submit any proof of age such as Matriculation Certificate or Birth Registration Certificate. From the said Affidavit-in-Opposition it appears that the petitioner's claim of being 64 years of age at the time of submission of the application has been rejected on the following ground : "However having regard to the age of his eldest child as 15 years he should be about 33 years in 1981 and thus 1948 born in free India. Therefore, his age cannot be accepted as true." 15. THE grounds disclosed for rejection of the petitioner's claim are absolutely preposterous. Therefore, his age cannot be accepted as true." 15. THE grounds disclosed for rejection of the petitioner's claim are absolutely preposterous. No reasonable person acting with an open mind could possibly have rejected a claim for pension on the grounds disclosed in the said impugned order and in particular, on the ground of the petitioner not having submitted any proof of age like matriculation, birth registration certificate to substantiate his claim. 16. FIRST of all, as observed above applications for pension are required to filed in the prescribed form supplied by the respondents and only documents required by the respondents need be furnished. Proof of age is not one of the documents required to be submitted along with the application in terms of the pension scheme. The respondents have not disclosed a single document whereby they have called upon the petitioner to furnish proof of age. Moreover, it is absolutely ridiculous to expect a freedom fighter born long before Indian Independence to produce a birth registration certificate to substantiate his claim. It is common knowledge that registration of births only became common since the late 60's and early 70's. Even during the 50's births were seldom registered, if not at all. 17. IN any event, no reasonable person could have assumed that the age of the petitioner could not have exceeded 33 years in 1981 just because his eldest child was fifteen years of age in that year. 18. THERE was no reason to conclude that the petitioner's first child could not have been born when the petitioner was 49 years of age. On the other hand a person who devoted his youth to the cause of the country's freedom, instead of building up a career and/or earning a livelihood is likely to have settled down late in life. The conclusion of the respondent Under Secretary that the petitioner was born in 1948 in free India is perverse and capricious. The respondent Under Secretary has apparently rejected the petitioner's claim of being 67 years of age in 1981 on the basis of conjectures and surmises and for the most absurd reasons. 19. THE second ground of rejection is a minor discrepancy in the two Personal Knowledge Certificates issued by Shri Hiralal Maity and Shri Rabindra Nath Giri in respect of the dates between which the petitioner is said to have remained underground. 19. THE second ground of rejection is a minor discrepancy in the two Personal Knowledge Certificates issued by Shri Hiralal Maity and Shri Rabindra Nath Giri in respect of the dates between which the petitioner is said to have remained underground. THE respondent Under Secretary drew adduce inference the certifiers having certified something that had not even been claimed by the petitioner. 20. FROM the Affidavit-in-Opposition affirmed on behalf of the Union of India it appears that in the application for pension, the petitioner claimed that he had gone underground for one year, nine months and 23 days from 2nd October, 1942 to 25th July, 1944. This has also been certified by Shri R.N. Giri. Shri Hiralal Maity, however, certified that the petitioner remained underground from October, 1942 to November, 1943. Significantly, both the certifiers have certified that the petitioner was a proclaimed offender and that he went underground in October, 1942. Both the certifiers have certified that the petitioner remained underground for over a year. The records reveal that the petitioner was convicted and sentenced from 29th March, 1943 to 28th December, 1943. A comparison of the common facts certified by the two certifiers establishes that the petitioner remained underground for over six months from the date of his conviction and that he never surrendered. 21. THERE may be minor discrepancies in dates in respect of the period during which the petitioner is said to have remained underground. Such discrepancies are immaterial and cannot defeat a claim for pension under the Scheme altogether. 22. ADMITTEDLY the Personal Knowledge Certificates were issued after almost 4 decades. The very fact that there are minor discrepancies in dates in the certificates of the two certifiers, in itself shows that the certifiers relied on their memory and did not issue tailored certificates as per the petitioner's requirements. The certificates, in the instant case were in the prescribed printed form. The full text of the two certificates have not been extracted either in the impugned order or in the Affidavit-in-Opposition. 23. BOTH the certifiers certified that the petitioner was a proclaimed offender. There is nothing in the certificates on the basis of which the respondent Under Secretary could have inferred that the certifiers did not know the cause of the petitioners going underground. The respondent Under Secretary has not considered the certificates in their entirety, but read sentences out of context. 24. There is nothing in the certificates on the basis of which the respondent Under Secretary could have inferred that the certifiers did not know the cause of the petitioners going underground. The respondent Under Secretary has not considered the certificates in their entirety, but read sentences out of context. 24. THE respondent Under Secretary proceeded on the basis that the petitioner was neither a proclaimed offender, nor a person on whom an award for arrest/head had been announced, nor a person against whom detention order had been issued but not served, and hence not eligible for pension. THE respondent Under Secretary observed that merely going underground on account of warrant of arrest did not entitle a freedom fighter to pension under the Scheme. The respondent Under Secretary appears to have lost light of the fact that there was apparently an order of conviction against the petitioner and not just a warrant of arrest. In any event, the conclusion of the respondent Under Secretary that going underground due to warrant of arrest would not entitle a freedom fighter to pension under the Scheme is not supported by the provisions of the Scheme. In my view, a freedom fighter against whom a warrant of arrest had been issued would also be entitled to pension under the Scheme if he had to go underground for the requisite period to avoid detention and/or imprisonment. 25. THE language and tenor of the relevant paragraph of the Scheme read with the Explanation suggests that any freedom fighter wanted by the police, who had to go underground, for the requisite period, to avoid detention and/or imprisonment would be eligible for pension under the Scheme. THE Explanation thus clarifies that going underground voluntarily for party work, self-exile and the like would not entitle a freedom fighter to pension under the Scheme. 26. THE scheme is a beneficial one, its objects being to honour freedom fighters and reward them for their sufferings. THE provisions of a beneficial Scheme ought to be interpreted liberally and not in a narrow pedantic manner. THE interpretation of the provisions of the Scheme, sought to be given by the respondent Under Secretary is opposed to the spirit of the Scheme. The finding of the respondent Under Secretary of the petitioner not being a proclaimed offender, is not backed by any reasons. THE interpretation of the provisions of the Scheme, sought to be given by the respondent Under Secretary is opposed to the spirit of the Scheme. The finding of the respondent Under Secretary of the petitioner not being a proclaimed offender, is not backed by any reasons. The respondent Under Secretary ignored the order of conviction in arriving at his finding of the petitioner not being a proclaimed offender. The Government of West Bengal has in the instant case, found on enquiry that there was an order of conviction against the petitioner from 29th March, 1942. The petitioner did not surrender, but went underground. 27. PROCLAIMED Offender' has not been defined in the Scheme. It is, however, axiomatic that a person convicted of an offence by a Court of law is a 'proclaimed offender'. This is evident from the illustrative definition of 'proclaimed offender' in Section 40(2)(ii) of the Criminal Procedure Code, 1973. 28. OFFENCE as defined in the Indian Penal Code denotes an Act punishable under the said Code or under any local or special law. A person who commits an act punishable in law, is an offender, and a person who is proclaimed and/or declared as such by a Court or any Authority is a 'Proclaimed Offender'. A person convicted of an offence by a Court of law is undoubtedly a 'proclaimed offender' within the meaning of the Scheme. Reference may in this context be made to the circular being Memo No. 8/12/81-FF(P) dated 12th April, 1983 of the Government of India to all the Chief Secretaries laying down the guidelines for recommending freedom fighters for pension for their under ground sufferings, the relevant paragraphs whereof are extracted herein-below : i) "The underground suffering recognized for the purpose of pension from the inception of the scheme provides that the person should have gone underground only after he was wanted by the police for his activities relating to National Struggle for freedom viz., the freedom fighter should either be a proclaimed offender or on whom an award for arrest was announced or on whom detention orders were issued but were not served. In this context the fact that the freedom fighter was wanted by the Police for his activities relating to freedom struggle continues to be the essence of eligibility for pension or the basis of the underground sufferings. In this context the fact that the freedom fighter was wanted by the Police for his activities relating to freedom struggle continues to be the essence of eligibility for pension or the basis of the underground sufferings. Voluntary abscondence, therefore, does not make a person eligible for samman pension. ii) The pre-condition of eligibility upto 31.7.1980 has been that the fact of abscondence should be established from the Official documents available with the State Government in the form of a judgment, arrest warrant or any other executive order, declaring a person an absconder. The liberalized pension scheme, however, provides with effect from 1.8.80 that in the absence of official records because of their non-availability, himself had been in jail in connection with the National Freedom Struggle for not less than five years would be acceptable to substantiate the claim of abscondence, internment or externment." 29. THE Government of India has, in the instant case, ignored the recommendation of the Government of West Bengal altogether. There is no reference in the impugned order to the recommendation of the Government of West Bengal. THE impugned order does not indicate why the recommendation of the Government of West Bengal was not accepted. 30. FROM the language and tenor of the scheme it is clear that the scheme contemplates a division of responsibilities and functions between the Government of India and the State Government. The task of scrutiny and verification of claims of suffering of applicants, to ascertain their genuineness is entrusted with the State Government. If the State Government on enquiry finds that the claim of an applicant with regard to his sufferings during the freedom struggle to be genuine, the Government of India is to decide whether the sufferings claimed entitle the applicant to pension as per the guidelines in this regard, and, if so, to grant pension to the applicant. It is true that the Government of India is not bound by the recommendation of the State Government, and is entitled to take its own decision notwithstanding the recommendation of the State Government. It is true that the Government of India is not bound by the recommendation of the State Government, and is entitled to take its own decision notwithstanding the recommendation of the State Government. However, as held by a Division Bench judgment of this Court in Appeal No. of 1994 arising out of Matter No. 1941 of 1993 (Union of India v. Thakurendra Nath Roy and Ors.) it is also a settled principle of law that when a particular authority has been vested with the jurisdiction to take a decision on the basis of the recommendation of another recommendatory authority, the decision making authority must apply its own mind and come to a judgment of its own, keeping in view the recommendation of the recommendatory authority. 31. THE Government of India may not be bound by the recommendation of the State Government. THE Government of India is, however, bound to take the recommendation of the State Government into consideration. If the verified facts disentitle an applicant to pension under the Scheme, the Government of India can certainly refuse pension to such an applicant. THE Government of India cannot, however, disregard the factual findings of the State Government arrived at, after enquiry, unless there are materials on the basis of which the Government of India can definitely conclude that the factual findings Of the State Government are not correct. 32. IN the case of Kishori Bala Jana v. Union of INdia being W.R No. 3759(W) of 1998, S. B. Sinha, J. held as follows : "This Court in Chaitanya Charan Das v. State of West Bengal and Ors. (supra) observed that in certain cases fake certificates have been produced and in that situation, held that the State Government and the Central Government would be entitled to verify the genuineness of the said certificate. The said observations are not applicable in the instant case, inasmuch as the State Government satisfied itself about the genuineness of the certificate and as such made the recommendations. As indicated hereinbefore the Central Government had also accepted the said recommendations and decided to grant pension. The said observations are not applicable in the instant case, inasmuch as the State Government satisfied itself about the genuineness of the certificate and as such made the recommendations. As indicated hereinbefore the Central Government had also accepted the said recommendations and decided to grant pension. IN that situation the Central Government could only reconsider its decision in the event it any record had been found which would be contrary to the certificate granted in favour of the petitioner by a former freedom fighter in terms of the said scheme." In course of hearing, Counsel appearing on behalf of Union of India has relied on a memo dated 3rd July, 2000 from the Deputy Secretary to the Government of West Bengal (Home PSP) Department enclosing a report from the DIG, IB. The report enclosed to the said memo is not a report of the DIG, IB but the report of the Special Superintendent of Police, IB, the contents of which are set out hereinbelow : "The undersigned writes to inform you that I.L. Index Book (1937 to 14th Aug, 1947), Green List (corrected up to the end of 1889 and Bengal Revolutionary Book (corrected up to Feb., 1939) consulted in connection with the past political sufferings during pre-independence days in respect of Shri Kalipada Das S/0. Lt. Bhusan Chandra Das with the given particulars. The name of the subject does not figure in the records." 33. IN the case of Gukul Chandra Panja v. Union of INdia reported in Calcutta Law Times (1999)1 HC 241, R. Pal, J. after going through D.I.B. records pertaining to Midnapore District found as follows : "The sphere of interest of the IB at the time when the petitioner claims to have gone underground appears under the sub-title mentioned as Selective INdexing". It is said "the activities of the IB and DIBs are no longer confined to collecting information regarding terrorist groups restricted to the middle-class intelligentsia only". It has now to follow mass movements of a socio-economic political character and hence the number of persons coming to notice is far beyond what the department can properly tackle. It is therefore clear that previously the intelligence Branch and District INtelligence Branch records would not contain information regarding terrorist groups which did not belong to the "middle class intelligentsia". It has now to follow mass movements of a socio-economic political character and hence the number of persons coming to notice is far beyond what the department can properly tackle. It is therefore clear that previously the intelligence Branch and District INtelligence Branch records would not contain information regarding terrorist groups which did not belong to the "middle class intelligentsia". IN other words, if a person were a villager or not a prominent member of an association or who did not indulge in violence and who may have participated in the non-violent struggle for independence, his name would not be recorded. Keeping this limited scope of the DIB records in view, the records produced by the Police in connection with the petitioner's case are unlikely to be relevant. His case is that he is a villager, a follower of R. N. Giri and not a leader nor has he claimed to have participated in any violent activity in connection with the underground movement. His name, by definition, would not be included in the IB records." 34. MOREOVER, in Gokul Chandra Panja's case (supra) this Court, considering a report of the State Government to the effect that there was no mention of the name of Gokul Chandra Panja in the official records, held as follows : "In these circumstances to say that the petitioner's name does not appear from the available records may be literally correct in the sense that the relevant records were missing. But that is just another way of saying that the records, which would be relevant to the petitioner's case, were not available. In that event the Certificate of Personal Knowledge granted by Shri R. N. Giri must be taken as proof of the petitioners claim in terms of the Pension Scheme. To sum up : There are no records which would be material to the question of the petitioner's political suffering. In such circumstances it is the personal knowledge certificate alone which had to be accepted and the recommendation made by the State Government and which has otherwise not been challenged by the Central Government in terms of the Scheme." An appeal from, the said judgment and order in Gokul Chandra Panja's case, being MAT 1604 of 1999 was rejected on merits by a judgment and order dated 4th May, 2000 of a Division Bench comprising A. K. Mathur, CJ and A. Kabir, J. 35. IN C.O. No. 10977 (W) a learned Single Judge of this Court held as follows : "The scheme itself provided that in absence of the available records, the certificate of a respectable freedom fighter can be accepted for the purpose of holding that a freedom fighter is entitled to a pension under the said scheme, the case of the writ petitioners for payment of pension cannot be ignored." 36. IN Smt. Gayatri Adhikary's case being C.O.19105 of 1992 a learned Single Judge passed a judgment and order dated 25th July, 1994, the relevant portion whereof is extracted hereinbelow : "I am also unable to accept the contention of the learned Advocate for the respondent that since the name of the petitioner is not there in the Book produced as referred in this order above, the petitioner cannot be held to be a political sufferer. The Scheme itself on the contrary provides that in the event the records are not available, Certificate from eligible certifier should be obtained. Since the petitioner's husband's name was not available in the record of Government, he was directed to produce an eligible certifier's certificate. It may be that since the records were not available in the Book. The other contention of the learned Advocate for the respondent is that the Certifier's name is not acceptable since the Certifier himself was in prison when he issued the certificate. IN my view that cannot be a bar in issuing certificate. The Scheme also does not provide for challenging the Certificate issued by the eligible certifier, particularly when the said Certificate has been accepted by the State Advisory Committee. The petitioner accordingly succeeds in this writ application. IN my view that cannot be a bar in issuing certificate. The Scheme also does not provide for challenging the Certificate issued by the eligible certifier, particularly when the said Certificate has been accepted by the State Advisory Committee. The petitioner accordingly succeeds in this writ application. There will be an order directing the Central Government to issue necessary order of sanction and to release pension to the petitioner under the Scheme within 30th November, 1994." In F.M.A.T. No. 2823 of 1993 (Union of India v. Haripada Samanta) a Division Bench of this Court passed a judgment and order dated 14th September, 1994, the relevant portion whereof is extracted herein-below : "From page 156 of the paper-book filed by the Union of India it appears that the main ground on which the pension was refused is as follows :- (a) According to the report of the Officer-in-charge Mahisadal P.S. there was nothing found against you in the existing warrant register and V.C.N.B. record.' To us, it appears that merely because warrant register of V.C.N.B. record was not available, or nothing was found therein, the writ petitioners respondents could not be denied or refused payment of freedom fighter's pension. This was only one of the requirements to be seen by the State Government while finding out entitlement of pension of political sufferers. In the liberalized Rule, this requirement was not a must. If the other requirement(s) as mentioned in Paragraph/Clause 9 of the said Scheme 1980 has been fulfilled, the political sufferer would be entitled to get the pension. Sanction for payment had been obtained in respect of all the writ petitioners respondents and there was no occasion for the Central Government to deny the payment of the same." 37. IN the instant case the Deputy Secretary to the Government of West Bengal, Department of Home (PSP) has, notwithstanding the report of the S.P., DIB, found the clajm of the applicant to be genuine. 38. IN the case of Gurdial Singh v. Union of India reported in AIR 2001 SC 3883 the Supreme Court held as follows :- "Keeping in mind the object of the scheme the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. 38. IN the case of Gurdial Singh v. Union of India reported in AIR 2001 SC 3883 the Supreme Court held as follows :- "Keeping in mind the object of the scheme the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country. The standard of proof required in such cases is not such standard, which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of 'beyond reasonable doubt'. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence. We have noticed with disgust that the respondent authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. We have noticed with disgust that the respondent authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and closed mind completely ignoring the verdict of this Court in Kukund Lal Bhandari's case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his." In passing the impugned order dated 30th July, 2001 the Under Secretary to the Government of India, Home Affairs Department has done exactly what the Supreme Court has deprecated in the case of Gurdial Singh v. Union of India (supra). The said Under Secretary has adopted a hyper technical approach while dealing with the case of a freedom fighter ignoring the basic principles and/or objectives of the Scheme. 39. THE Respondent Under Secretary, as observed above has given undue emphasis on minor discrepancies in two certificates, ignored the recommendation of the State Government without lawful justification and rejected the petitioner's claim which is not only supported by two certificates of two different freedom fighters but also by some available official records, on absurd grounds. On one pretext or the other, the petitioner's claim to pension had been kept pending for twenty years and they rejected on legally unsustainable grounds. 40. FOR the aforesaid reason, the writ petition is allowed. The impugned order dated 30th July, 2001 is set aside. The Union of India is directed to pay pension to the petitioner in accordance with Swatantrata Sainik Samman Scheme, 1980 from the date of submission of the application for pension. The payments shall be made within a period of six months from the date of communication of this order. There will be no order as to costs.