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2007 DIGILAW 988 (DEL)

BACHAN KAUR v. UNION OF INDIA

2007-05-11

KAILASH GAMBHIR

body2007
KAILASH GAMBHIR, J. ( 1 ) BY way of this writ petition, the petitioner Smt. Bachan Kaur has sought directions for setting aside Order dated 12. 5. 2003 passed by the Union of India/respondent no. 1 and order dated 10. 5. 2005 passed by the Government of punjab/respondent no. 2. The petitioner has also sought directions against the respondents for grant of pension as per SSS Pension Scheme 1980. Counsel for the petitioner has also sought directions against the respondents for tendering apology for causing loss of respect and for causing aspersions on the integrity of the freedom fighters by denying the Swatantrata Sainik Pension to the petitioner. ( 2 ) THE facts as set out in the petition are that the petitioner remained in jail for a period of not less than 7 and half months for taking part in the Kisan Morcha, lahore in the year 1939 (April-October ). It is further stated that the petitioner did not participate in the freedom struggle for any award or for the recognition by the State or the Central Government, but she did it out of her love for her country and for her inner voice which commanded her to jump in the freedom struggle. The petitioner has further stated that she belongs to the family of freedom fighters as her mother participated in the freedom struggle, whom she considered as her mentor. The petitioner has further contended that at the age of 13 years when other girls of her age were playing with toys and dolls, she had chosen the path of participating in the freedom struggle against the draconian British regime instead of playing with toys and games. The petitioner has also stated that earlier she never cared for the pension scheme as announced by the Government and it is quite in the late period that she had taken the steps for the grant of said pension. The petitioner also contended that she started getting the pension envisaged for the freedom fighters in the year 2000 and thereafter she had taken necessary steps for grant of pension from the UOI. ( 3 ) THE petitioner also stated that along with her application for grant of said pension, she had annexed necessary certificates of two co-prisoners namely, shri Kundan Singh, S/o Sh. Bhan Singh and Sh. Waswa Ram, S/o Sh. Mehar Chand. ( 3 ) THE petitioner also stated that along with her application for grant of said pension, she had annexed necessary certificates of two co-prisoners namely, shri Kundan Singh, S/o Sh. Bhan Singh and Sh. Waswa Ram, S/o Sh. Mehar Chand. ( 4 ) THE petitioner was also tried by the Special (Court) Magistrate, Lahore for her participation in the Kisan Morcha, Lahore and was punished and sentenced for 9 months. However, she was released after serving for 7 and half months in the imprisonment. It is also contended that the petitioner never pleaded guilty or tendered any apology to the then Government for taking part in the said struggle. It is also contended that the application of the petitioner made to the UOI was duly supported by the recommendation of the government of Punjab vide their letter dated 24. 8. 2000. The request of the petitioner was rejected by the respondent/uoi vide order dated 12. 5. 2003 and based on the said rejection, State of Punjab also rejected the grant of pension to the petitioner vide order dated 10. 5. 2005. ( 5 ) COUNSEL for the petitioner contends that the petitioner is fully eligible for the grant of pension as per the requirements laid down by the Central Government in Swatantrata Sainik Samman Pension Scheme, 1980, which was initially introduced w. e. f. 15. 8. 72, i. e. , at the time when the India had celebrated Silver Jubilee of its independence. Counsel for the petitioner contends that respondent/uoi has wrongly rejected the case of the petitioner on the ground that the petitioner was minor being 13 years of age and therefore, not a freedom fighter in her own right. Counsel for the petitioner also disputes other grounds of rejection as contained in the letters dated 21. 6. 2001 and 12. 5. 2003. Counsel for the petitioner states that respondent no. 1 has wrongly taken the period of imprisonment of Mr. Kundan Singh as 5. 10. 39 to 25. 12. 99 instead of from 10. 5. 39 to 25. 12. 99, which position was made clear by the petitioner. The contention of the counsel for the petitioner is that co-prisoners' certificates submitted by the petitioner were in accordance with the scheme of the Central Government,therefore, the request of the petitioner has been wrongly denied ignoring her rightful claim to get the pension under the sss Pension Scheme. 12. 99, which position was made clear by the petitioner. The contention of the counsel for the petitioner is that co-prisoners' certificates submitted by the petitioner were in accordance with the scheme of the Central Government,therefore, the request of the petitioner has been wrongly denied ignoring her rightful claim to get the pension under the sss Pension Scheme. ( 6 ) ON the other hand Ms. Barkha Babbar, counsel for the respondent/uoi states that since admittedly, the petitioner was a minor being 13 years of age and due to her tender age, it cannot be said that she had participated in the freedom struggle on her own. She further contends that petitioner might not be in a position to be fully conscious of the things happening around her at that period of time. Counsel also contends that she remained in Jail only on account of the fact that because her parents were under imprisonment and she had only accompanied them. Counsel further contends that as per the requirement of the pension scheme only those co-prisoners could have been given certificates who themselves remained imprisoned for a period of five years or more and in the present case such certificates given by the co-prisoners apparently show that they had not undergone imprisonment for a period of five years or more. The counsel for the respondent/uoi states that since it is not that the Government was in any case adverse to the petitioner but only on the ground that she was not eligible to get the pension under the said Scheme, therefore, the request of the petitioner was declined vide order dated 21. 6. 2001 which was reiterated in the subsequent order dated 12. 5. 2003. ( 7 ) MS. Avnish Ahlawat counsel for State of Punjab contends that state of Punjab has taken a decision since the Central Government after examining the case of the petitioner did not find the petitioner to be eligible for the grant of the said scheme. Ms. Ahlawat contends that the decision of the Punjab State is in consonance with the decision taken by the Central government. ( 8 ) I have heard counsel for the parties at a considerable length. Ms. Ahlawat contends that the decision of the Punjab State is in consonance with the decision taken by the Central government. ( 8 ) I have heard counsel for the parties at a considerable length. The petitioner, an aged woman of 80 years with frail body, pale face with bent shoulders and wrinkles on her face is before this Court, coming from remote village of Punjab, fighting a legal battle claiming a meager amount of pension, after fighting the lost battle with the bureaucracy. The concerned government officials in a most casual manner in their despotic and nepotic style had rejected the request of the petitioner for grant of pension under the swatantra Samman Pension Scheme 1972-80 without bothering to properly examine the true spirit behind the Scheme. This old lady, who once in her teenage participated in the freedom struggle with great patriotic feelings, with a fervor and burning desire of getting her country free from the bondage and clutches of draconian British regime must have fought that battle valiantly but appears to have lost her battle fighting with the present red-tapism of bureaucracy in a free country. Under the Swatantrata Samman Pension Scheme any person who had suffered a minimum imprisonment of six months in the jail before the independence has been made entitled to the grant of said pension. ( 9 ) IT is not disputed that both the co-prisoners namely, Shri Kundan Singh and shri Wasawa Ram were freedom fighters and remained in jail during their participation in Kisan Morcha. It is also not in dispute that said co-prisoners were already getting the pension under the Swatantrata Sainik samman Pension Scheme. It is also not in dispute that the family of the petitioner belongs to a family of freedom fighters as the parents of the petitioner during the freedom struggle remained in jail. It is also not in dispute that the State of Punjab had recommended the case of the petitioner for the grant of pension under Central Government Scheme in favour of the petitioner vide letter dated 24. 8. 2001. In the said letter the State of punjab has certified that the petitioner has suffered imprisonment from 1939 in Bostal Jail, Lahore along with her parents while participating in Kisan morcha, Lahore. In the said letter the State of Punjab had also certified that co-prisoners, namely, Mr. Kundan Singh and Mr. 8. 2001. In the said letter the State of punjab has certified that the petitioner has suffered imprisonment from 1939 in Bostal Jail, Lahore along with her parents while participating in Kisan morcha, Lahore. In the said letter the State of Punjab had also certified that co-prisoners, namely, Mr. Kundan Singh and Mr. Washwa Singh had undergone imprisonment for a period of more than one year and they are also the recipients of Swatantrata Samman Pension and holder of Tamra Patras. ( 10 ) ONCE the case of the petitioner was strongly recommended by the state Government, duly certifying the case of the co-prisoners, there was no justifiable ground or reason for the Central Government to have rejected the case of the petitioner on the ground of said co-prisoners having not remained in jail for a period of more than five years. Under the pension scheme a person who had suffered a minimum imprisonment of six months in the mainland jails before independence and three months in the case of women or SC/st has been made eligible for the grant of samman pension. This requirement the petitioner clearly fulfills as she had undergone imprisonment w. e. f. 10. 5. 39 to 25. 12. 39 for a period of seven and a half months. As regards the condition of furnishing of certificate from prominent freedom fighters who themselves had undergone imprisonment for a period of five years or more the same is not required to be construed strictly once the co-prisoners themselves have been made eligible for the samman under the pension scheme. I, therefore, do not feel satisfied that the said ground of rejection can be considered to be a valid ground. I also do not find any force in the arguments of the counsel for the respondent/uoi that the claim of the petitioner was rightly denied due to her age being of 13 years at the relevant time, as firstly under the scheme itself nowhere it has been stated that scheme is not available to the minor children. Secondly, it is not a case that at that time the petitioner being a small child of 13 years, was solely dependent for her up-keep on the parents and such a necessity of dependence led to her imprisonment along with parents. Secondly, it is not a case that at that time the petitioner being a small child of 13 years, was solely dependent for her up-keep on the parents and such a necessity of dependence led to her imprisonment along with parents. ( 11 ) EVEN under Section 83 of the Indian Penal Code, there is no immunity from the criminal liability if the offender is a person beyond the age of 12 years. Therefore, it cannot be said that a child of 13 years does not attain enough maturity or understanding to judge the nature of activities he or she is involved in and the consequences arising out of such involvement. The Supreme court in Gurdial Singh Vs. Union of India (2001) 8, SCC 8 has held that object of the scheme is to honour and to mitigate the sufferings of the freedom fighters and therefore, a liberal and not a technical approach should be adopted. It would be appropriate to refer para 7 of the Gurdial Singh's case (supra) as under: "7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by 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 o f the test of "beyond reasonable doubt". The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone o f 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. " ( 12 ) ONE cannot forget the fact that millions of the people of this Court had participated in the freedom struggle without any expectation of grant of any reward or monetary compensation. It also cannot be forgotten that many school students had also actively participated in the freedom struggle and group of young freedom fighters mostly school students had formed the group under the name of "vanar Sena", therefore, it cannot be said that the petitioner who was aged 13 years had merely accompanied her parents for imprisonment without her self motivation and patriotic feelings for the country. The respondent no. 1 has rejected the request of the petitioner on totally untenable grounds in a most cavalier fashion by not considering the petitioner as a freedom fighter simply on the ground of her being a minor at that particular time. The respondent has totally ignored the basic principles and objectives of the scheme, intendment of which is to give a token money in recognition of their participation in the freedom movement. At the age of 13 years the petitioner must have taken a conscious decision to participate in the said Kisan Morcha and must have voluntarily offered herself for participating in the said struggle, otherwise, a person of such a age could have thought of staying back in home or with any of her relatives instead of taking part in the freedom struggle. It cannot be lost sight of the fact that the family of the petitioner was the family of freedom fighters instilled with the great feeling of patriotism and love for the country. I, therefore, do not feel this ground of rejection as a valid ground of rejection. It cannot be lost sight of the fact that the family of the petitioner was the family of freedom fighters instilled with the great feeling of patriotism and love for the country. I, therefore, do not feel this ground of rejection as a valid ground of rejection. ( 13 ) TODAY the nation is celebrating 150 years of beginning of the great uprising of the first revolution of India's freedom struggle in the year 1857 on the one hand and on this very day one feels totally exasperated to see the plight of the present petitioner fighting a legal battle just to claim the pension under the Swatantra Samman Pension Scheme 1972-80. No amount of compensation can match the sacrifice of such people. Let nobody forget that it is only on account of sacrifice of such freedom fighters we could attain freedom. Based on the above discussion, the present writ petition is allowed. ( 14 ) RESPONDENT is directed to forthwith release the pension of the petitioner under the said Scheme from the date of application i. e. January, 2000, within a period of two months. In case the payment is not released to the petitioner within a period of two months, then respondent shall be liable to pay interest @12% on the arrears of the pension amount. The State Government who has rejected the claim of the petitioner vide letter dated 12. 5. 2003 is also directed to restore the pension of the petitioner within a period of two months.