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2013 DIGILAW 1387 (PNJ)

Union of India v. Gurdev Singh

2013-10-22

AUGUSTINE GEORGE MASIH, SANJAY KISHAN KAUL

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Judgment Sanjay Kishan Kaul, J. The present appeal is directed against the order of learned Single Judge dated 26.04.2012, directing the grant of freedom fighters pension by the Union of India under the Swatantrata Sainik Samman Pension Scheme inclusive of arrears with interest. It is the case of respondent no.1 that he took part in Quit India Movement in the year 1942 and after independence he was recognized as a freedom fighter and received several invitations and honours on that count. In order to ameliorate the sufferings of the freedom fighters, schemes were floated from time and time and the final modified scheme is Swatantrata Sainik Samman Pension Scheme (for brevity, 'the Scheme'), which came into force in the year 1980. Since records are often very old, both primary and secondary evidence has been held permissible and such secondary evidence can be in the form of affidavits of two co-prisoners who are already recipients of freedom fighters pension and who have proven jail term of minimum one year and were with the applicant in the same jail. Respondent no.1, in order to establish that he suffered imprisonment in the General Jail, Lahore, from 20.10.1942 to 15.08.1943, filed the affidavits of two co-prisoners. His claim is stated to have been accepted and the State Government granted pension to respondent no.1 since 13.05.1988. However, the benefit under the Scheme was not made available to him by the appellant as the documents submitted were found not to be satisfactory. To come to this conclusion, the primary reason was that two persons who had filed affidavits in support of detention of respondent no.1 had been allegedly issuing such certificates indiscriminately and one of them was not an eligible certifier. This denial resulted in respondent no.1 filing the writ petition under Article 226 of the Constitution of India seeking relief of grant of pension under the Scheme. Learned Single Judge allowed the writ petition vide the impugned order dated 26.04.2012 by adopting the reasoning that respondent no.1 could not be deprived of the benefit of pension once it is supported by secondary evidence, which is permissible as per the Scheme. It has, thus, been concluded that merely because the co-prisoners supporting the case of respondent no.1 have supported some other cases, would not be a ground to disbelieve them, unless it was found that they have falsely certified some persons. It has, thus, been concluded that merely because the co-prisoners supporting the case of respondent no.1 have supported some other cases, would not be a ground to disbelieve them, unless it was found that they have falsely certified some persons. At the stage when the appeal was admitted, as an interim measure, the Bench directed the Government of Punjab/respondent no.2 to hold a fresh fact finding enquiry qua the participation of respondent no.1 in Quit India Movement, without relying upon the affidavits alleged to be of co-prisoners of respondent no.1. The State of Punjab has filed an affidavit stating that the Deputy Commissioner, Patiala, on enquiry, cannot certify that respondent no.1 is a freedom fighter, though, it is not disputed that the freedom fighter pension was sanctioned by the State of Punjab to respondent no.1 vide letter dated 21.08.1994. The record on the basis of which Punjab Government had sanctioned pension was stated to be not available. In a similar matter, in LPA No. 243 of 2012, titled as Union of India and another Vs. Mohinder Singh, decided on 11.09.2013, relating once again to the imprisonment in Lahore Jail during freedom struggle in respect of an identical period, we were confronted with the absence of material. We noticed that the approach to be adopted in such cases has been enunciated by the Hon'ble Supreme Court in Gurdial Singh Vs. Union of India and others, 2001(8) SCC 8 , clarifying that the standard of proof required is not the same as in a criminal case or in a case adjudicated upon rival contentions or evidence of parties. Since the object of the Scheme is to honour and mitigate the sufferings of the freedom fighters, a liberal and not a technical approach has been directed to be adopted. One of the co-prisoners who had certified the detention in the aforesaid case was Gopal Singh Quami, who has also affirmed affidavit in the present case and is a recipient of Tamarpatra and beneficiary under the Scheme. The reason for rejection of the case of the applicant thereto was that two persons had been certifying a number of people. However, we opined therein that, it cannot be a reason to reject the claim because there may be large number of people imprisoned at the same time. Not only that, the detention relates to Lahore Jail which now falls in Pakistan. However, we opined therein that, it cannot be a reason to reject the claim because there may be large number of people imprisoned at the same time. Not only that, the detention relates to Lahore Jail which now falls in Pakistan. In fact, in that case the fact finding enquiry by the Deputy Commissioner, Patiala yield no results. Respondent no.1 is stated to be above 90 years of age. He is a beneficiary under the freedom fighters pension by the State of Punjab and is certified by two co-prisoners. Both are Tamarpatra holders and recipients of pension. The plea that other certifier Sh. Sher Singh is not an eligible person to certify has been rejected in Kartar Singh Vs. Union of India and others, 2006(2) RSJ 669. We may also note that when respondent no. 2 State of Punjab itself is unable to trace out the record affirming the basis of the grant of State's Freedom Fighters Pension, how can respondent no.1 be expected to collect records relating to such an old detention. In order to put the controversy at rest, learned counsel for respondent no.1 states that given the age of respondent no.1, he is satisfied even if future pension is granted to him from the date of order of learned Single Judge. This position cannot be seriously disputed by learned counsel for the appellant who, however, states that this should not be treated as a precedent. We feel that the aforesaid is a fair resolution to the matter in issue, more so when we have adopted the same course of action even in Mohinder Singh's case (supra). We, thus, modify the impugned order, inasmuch as, the freedom fighter/respondent no.1 would be paid by the appellant/Union of India from the date of order of the learned Single Judge. The necessary action be taken by the appellant/Union of India within one month from today. The appeal stands disposed of in the aforesaid terms.