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2010 DIGILAW 360 (HP)

Union Of India (Uoi) v. Nikna Ram

2010-02-26

KULDIP SINGH, R.B.MISRA

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JUDGMENT : Kuldip Singh, J. This appeal has been directed against judgment dated 28.5.2007 passed by learned Single Judge in CWP No. 1038 of 2003, directing the Respondents of the writ petition to release freedom fighter pension to Respondent No. 1 w.e.f. 16.7.1981 with interest at the rate of 9% p.a. 2. The further facts as per Respondent No. 1 are that he had submitted an application to Appellant for grant of pension under Swatantarta Sainani Samman Scheme, 1980 (for short Scheme) which was rejected on 8.7.1982. The Respondent No. 1 thereafter submitted fresh application on 25.6.1985 alongwith Certificate dated Whether the reporters of the local papers may be allowed to see the judgment? Yes 19.6.1985 of Kahna Ram but the freedom fighter pension was not allowed to Respondent No. 1, he filed CWP No. 423 of 1990 which was allowed by this Court on 12.12.1990. It was held that Kahna Ram was fully eligible to issue certificate to Petitioner since he had undergone imprisonment for five years. This Court directed to consider the case of Respondent No. 1 for freedom fighter pension and pass appropriate orders but, the case of Respondent No. 1 was again rejected on 3.6.1991. The Respondent No. 1 thereafter filed CWP No. 808 of 1992 which was not pressed. On 21.5.1996 Respondent No. 2 declared the Respondent No. 1 as freedom fighter. The Respondent No. 1 again sent application/reminder to Appellant on 7.10.1996 for grant of pension under the Scheme. The Appellant did not take any decision, Respondent No. 1 filed CWP No. 248 of 1998 which was decided on 29.5.2003 and Appellant was directed to take decision in the case on the basis of the case forwarded to it positively within a period of three months. In the event of the decision going against the Petitioner, liberty was reserved to Petitioner to approach this Court again. The Appellant again rejected the case of the Respondent No. 1 on 8.8.2003 vide Annexure PK. 3. The Appellant contested the petition and supported the letter dated 8.8.2003 Annexure PK rejecting the case of the Respondent No. 1 for freedom fighter pension. The defence of Appellant is that Respondent No. 1 has failed to prove that he is a freedom fighter and establish his claim for freedom fighter pension as per Scheme. The norms for grant of freedom fighter pension by the State and by the Central Govt. The defence of Appellant is that Respondent No. 1 has failed to prove that he is a freedom fighter and establish his claim for freedom fighter pension as per Scheme. The norms for grant of freedom fighter pension by the State and by the Central Govt. are different, merely the State has granted freedom fighter pension to Respondent No. 1 is no ground in itself to grant freedom fighter pension to Respondent No. 1 under the Scheme. There is no legal evidence as per Scheme in support of the claim of Respondent No. 1 for freedom fighter pension. Therefore Respondent No. 1 is not entitled to freedom fighter pension under the Scheme. 4. The learned Single Judge vide judgment dated 28.5.2007 has held that the case of the Respondent No. 1 is covered by Sub-Clause ( c ) of Clause 4 of the Scheme since he suffered externment on the basis of the order of erstwhile Raja of Bilaspur. Accordingly, learned Single Judge while allowing the petition quashed Annexure PK dated 8.8.2003 and directed the Respondents of the writ petition to release freedom fighter pension to Respondent No. 1 w.e.f. 16.7.1981 with interest at the rate of 9% p.a. 5. We have heard learned Counsel for the parties. Mr. Sandeep Sharma, Assistant Solicitor General of India has submitted that learned Single Judge has erred in quashing Annexure PK dated 8.8.2003 and allowing freedom fighter pension to Respondent No. 1. He has submitted that freedom fighter pension under the Scheme is to be given to a person on fulfilling the norms laid down in the Scheme. The eligibility criteria under the Scheme of Govt. of India and that of State Govt. freedom fighter pension scheme are different. The grant of freedom fighter pension under the State Govt. scheme does not entitle a claimant for grant of freedom fighter pension under the scheme. The Respondent No. 1 had claimed externment for two years from the state of Bilaspur but he could not substantiate his claim. The Respondent No. 1 was required to submit primary evidence by way of Court's/Govt's orders in support of his claim of externment. In the event of non-availability of such records, the Respondent No. 1 was required to send non-availability of record certificate to the Central Govt. The Respondent No. 1 was required to submit primary evidence by way of Court's/Govt's orders in support of his claim of externment. In the event of non-availability of such records, the Respondent No. 1 was required to send non-availability of record certificate to the Central Govt. alongwith personal knowledge certificates from prominent freedom fighters, who have proven jail suffering of minimum two years and who happened to be from the same administrative district. The Deputy Commissioner in the present case has reported that from the records available there was no mention of the factum of externment of Respondent No. 1 from the State of Bilaspur. Therefore, Respondent No. 1 is not entitled to freedom fighter pension under the Scheme. The learned Counsel for the Respondent No. 1 has supported the impugned judgment. 6. There is no denial of the fact that under sub Clause (c) of Clause 4 of the Scheme for purpose of Samman Pension under the Scheme, a freedom fighter is a person interned in his home or externed from his district provided the period of internment/externment was six months or more. The internment or externment can be proved by (i) order of internment or externment or any other corroboratory documentary evidence and also by (ii) certificate from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. The period of imprisonment was specifically reduced to two years by the Union of India. The certifier veteran freedom fighters in respect of underground, suffering, externment/internment and the Applicant should belong to the same administrative unit before the reorganization of States and their areas of operation must be the same. 7. In the counter affidavit, the Appellant has stated that Respondent No. 1 had applied for pension on 11.7.1981. He had claimed externment from 1946 to 1948. In support of his claim he has submitted the certificates of the following persons: (a) Ganga Ram Bhardwaj (b) Ram Singh (c) Kahna Ram (d) Kartar Singh (e) Narottam Dutt Shastri He did not submit any order of externment or any other corroboratory documentary evidence except the certificates referred to above which were not on the proforma prescribed under the Scheme. All certifiers except Kartar Singh had not even indicated their own jail suffering in connection with the freedom movement. All certifiers except Kartar Singh had not even indicated their own jail suffering in connection with the freedom movement. Only those freedom fighters who have suffered for a minimum period of two years in jail in connection with the freedom movement were eligible to give personal knowledge certificates in support of the claims of sufferings of the freedom fighters. The certificate issued by Kahna Ram was not in the prescribed format and he has not given his own jail suffering as per the requirement laid down under the Scheme. In para-17 of the counter affidavit it has however been submitted that Kahna Ram was an eligible certifier but he has not given the PKC in the prescribed format. Kartar Singh was a Govt. servant and he was not eligible certifier as per Scheme. The claim of Respondent No. 1 that since the State Govt. has declared him freedom fighter, Union of India too declares him freedom fighter and the grant of freedom fighter pension is just not acceptable because the State Govt has its own Scheme and Centre has its own. Each Scheme has different requirements. On these grounds, the Appellant had contested the petition. 8. The Appellant has admitted that Respondent No. 1 had applied for grant of freedom fighter pension on 11.7.1981 alongwith certificates of Ganga Ram Bhardwaj, Ram Singh, Kahna Ram, Kartar Singh and Narottam Dutt Shastri, there is no denial of the fact that Respondent No. 2 had declared the Respondent No. 1 as freedom fighter on 21.5.1996. Circular No. 14/7 dated 12.8.1977 provides that no Central Pension should be sanctioned in future except on the basis of State Govt.'s verification and recommendation. In case no State report has been received, the case should be referred to the State Govt. and finalized only on the basis of their specific recommendation. The purpose of Circular No. 14/77 is to give importance to the verification of the State. In the present case the State had already declared Respondent No. 1 as freedom fighter on 21.5.1996. In case no State report has been received, the case should be referred to the State Govt. and finalized only on the basis of their specific recommendation. The purpose of Circular No. 14/77 is to give importance to the verification of the State. In the present case the State had already declared Respondent No. 1 as freedom fighter on 21.5.1996. The short controversy in the present case is whether the application submitted by the Respondent No. 1 for grant of freedom fighter pension was accompanied with necessary certificates of the certifiers who were authorized to certify the sufferings of Applicant in absence of actual order of internment/externment of six months as provided under sub Clause ( c ) of Clause 4 of the Scheme. Clause 9 of the Scheme provides that certifier himself should have undergone imprisonment for two years or more if available records are not available. The letter dated 8.8..2003 Annexure PK indicates that claim of the Petitioner was rejected on the ground No. 1 that none of the personal knowledge certificates were accepted as none of them were in accordance with eligibility criteria laid down in the Scheme. The claim has not been supported by official records, nor non-availability of record certificate was produced from the concerned Agency. On the contrary the State Govt. vide letter dated 16.5.1998 had informed that the case of the Applicant was looked by Deputy Commissioner, Bilaspur and there is no record of suffering of the Applicant. 9. In CWP No. 423/90 filed by Respondent No. 1 Annexure PE was the certificate issued by Kahna Ram. The Division Bench in judgment dated 12.12.1990 in CWP No. 423/90 has held that Annexure PE cannot therefore, be rejected as one issued by an incompetent person. It is admitted case of Appellant that one of the certifier of the claim of Respondent No. 1 was Kahna Ram in CWP No. 423/90. The Division Bench has specifically held that certificate Ex.PE issued by Kahna Ram cannot be said to be of incompetent person. In these circumstances, the certificate in support of the application of Respondent No. 1 issued by Kahna Ram is valid certificate and could not have been ignored by the Appellant. The Division Bench has specifically held that certificate Ex.PE issued by Kahna Ram cannot be said to be of incompetent person. In these circumstances, the certificate in support of the application of Respondent No. 1 issued by Kahna Ram is valid certificate and could not have been ignored by the Appellant. The objection of Appellant that the certificate issued by Kahna Ram was not on prescribed format is also not of much significance without disclosing that in substance required information was not divulged in the certificate. The certificate Annexure PG dated 10.11.1981 was issued by Kartar Singh Ex.DSP, Bilaspur State. The Appellant in counter affidavit has stated that Kartar Singh Ex. Dy.S.P. was a Govt. Servant and is not eligible certifier as per Scheme. As per clause-9 of the Scheme the Applicant is required to furnish documents whichever is applicable in support of internment or externment, order of internment or externment or any other corroboratory documentary evidence. There is nothing in clause-9 that certificate of the Govt. Officer is not admissible in support of the claim of the Applicant for freedom fighter pension under the Scheme. Kartar Singh was Ex. Dy. S.P. in Bilaspur State, therefore, his affidavit is admissible in support of the claim of Applicant for freedom fighter pension which falls in the category of any other corroborative documentary evidence. The Appellant has wrongly excluded the affidavit of Kartar Singh in support of the claim of Respondent No. 1 for freedom fighter pension. 10. The rejection of the claim of the Respondent No. 1 that his case is not supported from the official records is also wrong. The case of the Petitioner is that there was oral order of externment. In these circumstances, it is reasonable to infer that oral order of externment cannot have record in support of the externment and that is why the Deputy Commissioner, Bilspur in his report has mentioned that there is no record of suffering of the Applicant. But merely there is no record of suffering of the Respondent No. 1 that does not mean that he has not actually suffered externment which he has duly proved from the certificates of Kahna Ram and Kartar Singh. The learned Single Judge has rightly appreciated the entire material on record. We are in agreement with the view taken by learned Single Judge in allowing the petition. The learned Single Judge has rightly appreciated the entire material on record. We are in agreement with the view taken by learned Single Judge in allowing the petition. The leaned Assistant Solicitor General of India has failed to make out a case for interference. 11. No other point was urged. 12. The result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs.