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2013 DIGILAW 319 (BOM)

Ramchandra v. Central Government

2013-02-06

R.M.BORDE, U.D.SALVI

body2013
JUDGMENT U.D. Salvi, J.: 1. Rule. Rule made returnable forthwith. Heard finally by mutual consent of the rival parties. 2. A writ of mandamus directing the grant of pension to the petitioner under Swatantrya Sainik Sanman Pension Scheme, 1980, a Central Scheme for grant of pension to Freedom Fighters and their eligible dependents, is sought in the present petition. 3. The petitioner is a 87 year old person, whose participation in freedom struggle was acknowledged by the respondent No.2 State of Maharashtra with grant of Sanman Patra and freedom fighter pension amounting to Rs.500/per month as per the copies of the documents at Exhibit D to the petition. The petitioner submits, that he was imprisoned for having participated in freedom struggle for a period of 7 months and 23 days i.e. from the date of his arrest on 8.11.1942 in Crime under Section 120B of the Indian Penal Code, 1860 read with Sections 56(4), 38(1)(c), 38(5), 35(4) of D.I.R. and under Section 5(1) and 6(A) and Rule 35/138B of Explosives Act and Section 5(2) of D.I. Act till his release on 30.5.1943 and as such, he is eligible to receive pension under the said Central Scheme. 4. In support of his claim of imprisonment, the petitioner has annexed to the petition the copies of : (1) Judgment and order passed by Additional City Magistrate, First Class, Poona on 7.5.1943 in Case No.1131/1942 Exhibit A. (2) Certificate dated 14.8.1962, issued by Superintendent, Yerwada Central Prison, Poona Exhibit B. (3) Letter Outward No.G.P.1971/86, dated 27.10.1986, issued by Commissioner of Police, Pune Exhibit C. (4) A Sanman Patra issued by Chief Minister, Maharashtra State and Pension Order under State Government Freedom Fighters Pension Scheme Exhibit D. 5. It appears that the petitioner approached the State authorities with a request to help him get the pension available to the freedom fighters under the Central Scheme. He addressed letter dated 8.7.2003 to the Freedom Fighters High Power Committee, Mantralaya, inviting their attention to the fact that he was arrested in early hours of 8.11.1942 in the aforesaid crime and was released at the end of the trial in the said case only to be rearrested and detained outside the Court on the same day under the provisions of Rule 129 of Defence of India Rules. He also invited the attention of the Committee to the fact that the prison authorities refused to issue certificate about his detention as under trial prisoner and, therefore, he had to rely on the judgment and order passed in the said case. He further invited the attention of the Committee to his woes of having suffered loss of employment with C.A.F.V. Department and Military Accounts as a result of black listing of his name with the police in the year 1944. It appears that the respondent No.2 State responded to the plea of the petitioner and made futile efforts to dig out record in support of the petitioner claim of imprisonment vide letters dated 4.6.2008, 3.7.2008 and 26.3.2009 addressed to the Collector, Ahmednagar and Police Commissioner office, Pune (Exhibits F and H respectively). As nothing concrete surfaced, ultimately in the present petition an order dated 12.9.2012 had to be passed giving directions to the Collector, Ahmednagar to secure necessary information as regards the claim raised by the petitioner and to report to this Court within a period of two months. However, the report dated 5.12.2012 from the office of the District Collector, Ahmednagar made little headway in the matter. 6. On this backdrop, this Court is left with the documents produced by the petitioner as the only means to adjudicate upon in the controversy in the present case. 7. The petition is opposed by the respondent No.1 Union of India mainly on the ground that there is paucity of material to support the petitioners claim for pension under the Central Scheme and grant of pension under the State scheme does not confer eligibility in terms of the Swatantrya Sainik Sanman Pension Scheme, 1980 framed by Government of India. The respondent No. 1 Union of India placed before us the text of the salient features of Swatantrya Sainik Sanman Pension Scheme, 1980 along with affidavit in reply dated 16.3.2012. 8. Reading of the text of the salient features of Swatantrya Sainik Sanman Pension Scheme, 1980, found annexed as Exhibit R1 to the affidavit in reply of the respondent No.1, dated 16.3.2012 affords information as to the criteria for grant of pension to the freedom fighters and the procedure for grant. It also informs the reader the worth of secondary evidence in the matters of such kind. It also informs the reader the worth of secondary evidence in the matters of such kind. It is correct that all the persons who participated in the freedom movement in some way or the other are not eligible for Sanman Pension and only those of the freedom fighters who fall in the specified category become eligible for claiming Sanman Pension on furnishing specified evidences. Para 2.2 specifies one of the relevant categories of freedom fighters who are qualified to get the Sanman Pension as under : 2.2 Imprisonment :A person who had suffered minimum imprisonment of six months (3 months in case of women, SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidences :(a) Imprisonment/ detention certificate from the concerned jail authority, District Magistrate or the State Govt. indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release. (b) In case records of the relevant period are not available, the secondary evidences in the form of 2 coprisoner certificates (CPC) from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/ Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting or Ex. M.P./ M.L.A., only one certificate in place of the two is required. 9. As regards the procedure, it is the case of the petitioner, he had applied to the respondent No.1 Union of India through the respondent No.5 the Chairman, High Power Committee, Freedom Fighter Cell, Mantralaya, Mumbai along with all supporting material available with him for grant of pension under the said scheme vide letter dated 8.7.2003 (Exhibit E). This assertion is not met with any categorical denial from any of the respondents. This assertion is not met with any categorical denial from any of the respondents. The respondent No.1 merely countered the relevant assertion with the submissions that the search of the records did not help the respondent in finding the said application, and neither recommendation of the State Government nor the receipt of the State pension automatically entitles the petitioner for the pension under the said Scheme, and the claim of the petitioner can be processed by the Central Government only on receipt of verification of entitlement to pension report from State Government/ U.T. administration concerned. The respondent No.1 placed reliance on the judgment delivered by the Division Bench of this Court in Writ Petition No.2257/2000 in the matter of Vasantrao Balaji Naladkar Vs. The State of Maharashtra & ors., delivered on 14.6.2000 upholding the mandatory requirement of State Government’s verification report for grant of pension under the said scheme. 10. In Vasantrao Balaji Naladkar’s case (supra), the claim of the petitioner therein for freedom fighters pension was rejected by the Government of India mainly for the reason that the petitioner had totally failed to convince the authority as regards his statement that he had undergone sentence due to his participation in freedom struggle. This Court observed that even the period of such suffering was not referred to by the petitioner and the concerned authority had opined about the inadequacy of the record to substantiate the facts borne by the certificates issued by Shri Achyut Deshpande and Vinayak Chaithankar in favour of the petitioner and, therefore, the certificates were not credible. Coupled with these facts as observed by the Division Bench of this Court, the claim of the petitioner preferred before the Central Government lacked backing of the mandatory verification report from the State Government and this made the case of the petitioner doubtful. 11. On going through the procedure spelt out under the said scheme, it is not difficult to perceive that verification of entitlement to pension report from the State Government is facilitator which enables the authorities concerned to process the claims made for the pension under the said scheme and, therefore, cannot be regarded as a mandate of the scheme. This can be read from the few relevant lines from the procedure quoted hereinelow. However, claims can be processed by the Central Govt. This can be read from the few relevant lines from the procedure quoted hereinelow. However, claims can be processed by the Central Govt. only on receipt of verification & entitlement to pension report from the State Govt./U.T./ Administration concerned. In case the requirements of the Scheme are fulfilled, Sanman Pension is granted to the applicant. 12. Procedure under the said scheme also speaks of acceptability of secondary evidence at para 4 as under : 4. Acceptability of Secondary Evidence: Secondary evidences can be considered only if supported by a valid Non Availability of Records Certificate (NARC). The provisions of the Scheme were clarified to the State Governments in several circulars of the Govt. of India, gist of which is available in the Appendix attached herewith. The instructions of NARC were reiterated by the Govt. of India, Ministry of Home Affairs, vide Circular No. 8/12/95FF( P) dated 2.11.98, relevant extracts of which are reproduced as follows : As per the scheme, claims of the applicants for sanman pension are required to be supported by the duly verified official records of the relevant times. Only in case of non-availability of such records, secondary evidences, as specified in the scheme, can be made basis of such claims. However, due care and caution is required in such cases in view of several instances of bogus/ forged claims which have come to the notice of the Central Government. It is of utmost importance that before recommending such cases, complete facts of the case in which the applicant claims involvement, are verified from all the agencies which could have been concerned with the matter. These may include the police station concerned, the District administration, the jurisdictional Court, competent authority issuing detention order, the advisory board/ appellate Court, prison authorities, and intelligence agencies. Discrete enquiry should also be made to ascertain genuineness of the claims. The NARC should be issued only after the above verification. It is reiterated that the NARC should invariably be worded as follows : All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available. 13. What is, therefore, essential for grant of pension under the scheme is fulfilment of eligibility criteria under the scheme and credible proof of it. 13. What is, therefore, essential for grant of pension under the scheme is fulfilment of eligibility criteria under the scheme and credible proof of it. In the instant case, neither of the parties hereto have made assertions that the documents, the copies of which are found at Exhibits A, B and C annexed to the petition, are forged. As a matter of fact, the respondent No.4 the Commissioner of Police, Pune at para 12 of its reply, has confirmed the issuance of letter (Exhibit C), giving all the information the said office had. It further went on to confirm that the documents referred to in para 2 of the letter dated 26.3.2009 (Exhibit H), are not available on the records. 14. Letter dated 27.10.1986, issued by the Police Commissioner, Pune at Exhibit C to the petition, opens a window to the entries in the then available records namely the political register in respect of the freedom fighters 1942. It reveals entries in respect of the petitioner detention under Defence of India Rules and in C.R. No.1791/1942 dated 6.12.1942 under Sections 56(4), 38(1)(c), 38(5), 35(4) of D.I.R. and under Section 5(1) and 6(A) and Rule 35/138B of Explosives Act and Section 5(2) of D.I. Act. It shows that the petitioner was detained during the period from 7.5.1943 and 30.5.1943 under Defence of India Rules, Rule 129 at Pune. It also refers to the record of the fact that the petitioner was arrested in the said case some two months prior to registration of the said crime and was released by the Additional City Magistrate, Pune, Class I on 7.5.1943. This fact finds corroboration in the text of the judgment and order dated 7.5.1943, passed by the Additional City Magistrate, Poona, (First Class) in Case No.113/1942, particularly at Page 7 of the said judgment. These documents offer credible evidence of the fact that the petitioner was imprisoned for a period more than six months i.e. from 8.11.1942 till 30.5.1943. There is nothing on the record before us to doubt in any manner the said fact. 15. Sadly, Mr. Alok Sharma, learned Assistant Solicitor General for respondent No.1 Union of India, despite the clinching facts surfacing from the said documents before us, maintained resistance to the grant of pension to the petitioner under the said scheme. There is nothing on the record before us to doubt in any manner the said fact. 15. Sadly, Mr. Alok Sharma, learned Assistant Solicitor General for respondent No.1 Union of India, despite the clinching facts surfacing from the said documents before us, maintained resistance to the grant of pension to the petitioner under the said scheme. He submitted that the petitioner was not convicted for the offence committed in course of freedom struggle and, therefore, the participation of the petitioner in the freedom struggle is suspicious. He placed reliance on bunch of judgments delivered by the Hon’ble Apex Court namely :(1) (1997) 9 Supreme Court Cases 446 (Union of India Vs. R.V. Swamy Alias R. Vellaichamy.) (2) (2004) 7 Supreme Court Cases 722 (Union of India Vs. Bikash R. Bhowmik & ors.) (3) 2006(6) Supreme 386 (Union of India Vs. Avtar Singh) (4) JT2008( 4) SC 635 (Union of India Vs. Kashiswar Jana) (5) 2010(12) Supreme Court Cases 675. (Mahender Singh Vs. Union of India) 16. In all these cases cited by the learned Assistant Solicitor General for Union of India, what mattered to negative the claim for the pension under the said Scheme was the insufficiency of the proof in support of the claim made in respective cases. In peculiar set of facts and circumstances in the present case, wherein the fact of imprisonment of the petitioner for a period of more than six months is both vivid and beyond reproach, it would be travesty of justice to deny to a person who is almost at the end of his life, what is due to him, merely for the non compliance of the procedural norms for the reason of adverse circumstances. Needless to mention here that the procedural norms are the facilitators of the justice and not its impediments. 17. Before parting with this order, it needs to be observed that, had learned Assistant Solicitor General for the respondent No. 1 Union of India taken little pains to go through the judgment of the Hon’ble Apex Court delivered in Mukund Lal Bhandaris case AIR 1993 SC 2127 : Mukund Lal Bhandari and others Vs. Union of India and others., and through the judgment delivered by the Additional City Magistrate, Poona (First Class) in the case referred to by the petitioner at Exhibit A, he would have reserved his breath in opposing this petition. Union of India and others., and through the judgment delivered by the Additional City Magistrate, Poona (First Class) in the case referred to by the petitioner at Exhibit A, he would have reserved his breath in opposing this petition. The Hon’ble Apex Court, in Mukund Lal Bhandaris case (supra) observed thus : It is common knowledge that those who participated in the freedom struggle either at the national level or in the erstwhile Nizam State, are scattered all over the country and most of them may even be inhabiting the remotest parts of the rural area. What is more, almost all of them must have now grown pretty old, if they are alive. Where the freedom fighters are not alive and their widows and the unmarried daughters have to prefer claims, the position may still be worse with regard to their knowledge of the prescribed date. What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it illbehoves the Government to raise pleas of limitation against such claims. In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes. Hence, whatever the date on which the claimants make the applications, the benefit should be made available to them. The date prescribed in any part or future notice inviting the claims should be regarded more as a matter of administrative convenience than a rigid time-limit. 18. The learned Additional City Magistrate, Poona (First Class), in the said case against the petitioner (accused No.7) and 10 others, summarized the allegations against the accused therein as under : The accused had formed a conspiracy to commit offence against Govt. and accordingly they were meeting in H. Nos.372 Shukrawar and 340 Vatal and Sadashiv 19690. The intention of the accused was to take out unauthorised provisions to privi and distribute objectionable bulletins to damage or destroy Govt. and other property to procure by illegal means explosive substances and to prepare explosive etc. 19. Providentially, the petitioner was discharged for want of sufficient evidence in the said case on 7.5.1943. The intention of the accused was to take out unauthorised provisions to privi and distribute objectionable bulletins to damage or destroy Govt. and other property to procure by illegal means explosive substances and to prepare explosive etc. 19. Providentially, the petitioner was discharged for want of sufficient evidence in the said case on 7.5.1943. However, a fact remains that the petitioner was arrested, and consequently imprisoned, by the British Government on the charges of having taken part in freedom struggle. Such instances could be many in cases of freedom fighters. Rightly, therefore, Under the Scheme it is the imprisonment and not the conviction which is made one of the parameters for gauging involvement in the freedom struggle of the claimants to the pension under the said scheme. 20. Pertinently, the Union of India is reticent in making comment regarding grant of pension under the scheme to the coaccused (accused Nos.2 and 5 respectively in the said case) late Damodar Dinkar Kulkarni and late Sadashiv Shankar Borate vide para No.13 of the petition. 21. With deference to the rulings of the Hon’ble Apex Court in the cases cited on behalf of the respondent No.1 Union of India and on considering the following facts :( 1) Non availability of relevant records, (2) Availability of undisputed and relevant judicial pronouncement as well as the official communication from the State Government, (3) Advanced age of the petitioner, (4) Almost extinct contemporary generation of imprisoned freedom fighters, the petition can be disposed of by issuing directions to the respondent No.1 Union of India to treat the very petition with annexures thereto as the application of the petitioner for the grant of pension under the said scheme, and to consider the merits of such application without insisting for verification and entitlement to pension report from the State Government as well as nonavailability of record certificate and pass orders expeditiously, preferably within a period of six months. Accordingly, the following directions are passed : The respondent No.1 Union of India shall treat this petition with annexures thereto as the application of the petitioner for the grant of pension under the said scheme, and shall consider the merits of such application without insisting for verification and entitlement to pension report from the State Government as well as nonavailability of record certificate and pass orders expeditiously, preferably within a period of six months. Liberty is granted to the respondent No.1 Union Government to verify the facts of the case from all their agencies including intelligence agencies. Rule is made absolute accordingly with no order as to costs.