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2014 DIGILAW 1775 (MAD)

V. Rajayyan Robin v. State of Tamil Nadu

2014-06-30

R.MAHADEVAN

body2014
Judgment R. Mahadevan, J. 1. This writ petition has been filed seeking a writ of Certiorarified Mandamus to call for the records of the first respondent pursuant to the G.O. Ms. No. 106, dated 07.03.2011 and quash the same and consequently, direct the respondents to sanction Tamil Ellai Por Thiyagigal Protectors Pension within the time limit that may be stipulated by this Court. 2. The case of the petitioner is that the petitioner, who aged 14 years at the relevant point of time, participated in the agitation to bifurcate Kanyakumari District from Travancore Province, during which, he was detained in Sub Jail at Kuzhithurai on 11.08.1954 and thereafter, shifted to Sub Jail, Thuckalay on 17.08.1954. According to him, he was incarcerated for three months. He is one of the members in Kanyakumari District Freedom Fighters Organisation, which gave him a Certificate for the involvement in the said agitation. He made a representation seeking pension through the said organisation, along with the bona fide Certificates dated 04.03.1993 and 05.04.1993 issued by one P. Johnrose and M. Palis respectively. However, the claim of the petitioner for the said pension was denied by the authorities stating that no proper document was produced and the statement of the co-prisoner is in contradiction and therefore, the same was rejected, as against which, the present writ petition has been filed. 3. The learned Counsel for the petitioner has drawn the attention of this Court to the recommendation of the third respondent dated 07.01.2013, whereby the case of the petitioner was recommended for grant of Thiyagigal Pension and that the co-prisoners also identified the petitioner and submitted the Certificate to the effect that he was one among the participants in the above said agitation and hence, he prayed for allowing this writ petition. 4. In support of his contentions, the learned Counsel for the petitioner relied on the following decisions:- (i) Gurdial Singh vs. Union of India and others, (2001) 8 Supreme Court Cases 8 (ii) N. Palaniappan vs. State of Tamil Nadu, (2008) 3 MLJ 1382 (iii) T. Mahadevan vs. State of Tamil Nadu and others, 2010 Writ L.R. 45 (iv) Kamalbai Sinkar vs. State of Maharashtra and others, 2012 (4) LLN 41 (SC) (v) Under-Secretary to the Government of India vs. Noorjahan, 2014 (1) CWC 573 5. Heard both sides and perused the materials available on record. 6. Heard both sides and perused the materials available on record. 6. On a scrutiny of the impugned order, it is seen that in the report of the District Collector, Kanyakumari District, he stated that there is a contradiction of facts leading to the incarceration of the petitioner to the effect that the co-prisoner, by name, Johnrose gave a letter stating that the petitioner was in jail for three months, however, in his statement, the said Johnrose stated that he saw the petitioner for five days in Kuzhithurai jail. Further, it is found that since the petitioner has not produced any material evidence to show that he has participated in the agitation, his case was not considered for grant of pension. 7. A perusal of the typed set of papers would make the point clear that the petitioner is given with the Certificates issued by his jail inmates to the effect that he had been incarcerated at the relevant point of time. The petitioner has already approached this Court by filing WP (MD) No. 12130 of 2010, seeking a direction to consider his representation for the same relief and this Court, by order dated 24.09.2010, has also directed the authority concerned to dispose of the said representation after giving him an opportunity of hearing. 8. It has to be kept in mind that the freedom fighters' pension scheme was introduced with an ultimate object of providing grant of pension to the living freedom fighters and their families and to the families of martyrs, who had participated in the freedom struggle without any expectation of grant of any scheme at that relevant point of time. No doubt, the object of the scheme is only to honour and also to mitigate the sufferings of the persons who had sacrificed their all for the sake of our country and hence, a liberal and never a technical approach should be followed at the time of considering the case of a person seeking pension under such scheme. Once, it is evident on the basis of the materials available on record that the claimant of pension had suffered incarceration for the cause of the country, a presumption has to be drawn in his favour, until the same is rebutted by a cogent, reasonable and reliable material evidence. 9. Once, it is evident on the basis of the materials available on record that the claimant of pension had suffered incarceration for the cause of the country, a presumption has to be drawn in his favour, until the same is rebutted by a cogent, reasonable and reliable material evidence. 9. In T. Mahadevan vs. State of Tamil Nadu and others, 2010 Writ L.R. 45, it is held as follows:- "13. But, at the same time, the question, whether the appellant is otherwise eligible for pension or not, is a matter to be considered by the Government and we cannot express any opinion in that regard. We would only clarify that the imprisonment for 14 days is not required for grant of pension and imprisonment or detention in jail as an under trial prisoner even for a single day would be suffice." 10. In Under-Secretary to the Government of India vs. Noorjahan, 2014 (1) CWC 573 , while taking a similar view that the petitioner therein was entitled for consideration, this Court observed as follows:- "10. In the decision reported in State of Orissa vs. Choudhuri Nayak, (2010) 8 SCC 796 , it is held that no genuine Freedom Fighter should be denied pension. In the said decision in paragraph 10, the earlier decisions reported in Mukund Lal Bhandari vs. Union of India, 1993 Supp (3) SCC 2 and Gurdial Singh vs. Union of India, (2001) 8 SCC 8 , were followed, wherein the object of the Freedom Fighters' Pension Scheme was considered and summarised the approach of the authorities in dealing with the applications for pension under the scheme, which reads as follows: "10 (i) The object of the Scheme was to honour, and where necessary, to mitigate the sufferings of those who had struggled to achieve independence for the country. Many freedom fighters, even though they did not have sufficient income to maintain themselves, would even be reluctant to receive the pension under the Scheme, as they would consider it as putting a price on their partriotism. The spirit of the Scheme being both to assist and honour the freedom fighters and acknowledge the valuable sacrifices made by them, the authorities should treat the applicants with respect and courtesy. The Scheme should not be converted into some kind of routine scheme for payment of compensation. The spirit of the Scheme being both to assist and honour the freedom fighters and acknowledge the valuable sacrifices made by them, the authorities should treat the applicants with respect and courtesy. The Scheme should not be converted into some kind of routine scheme for payment of compensation. (ii) The persons intended to be covered by the Scheme are those who sacrificed and suffered for achieving the independence of the country, without expecting any reward for their sacrifice and sufferings. Therefore, they cannot be expected to maintain and produce perfect records or documents about their participation in the freedom struggle. (iii) Once the country has decided to honour freedom fighters by granting a pension, the approach of the authorities implementing the Scheme should not be obstructionist or technical while examining the applications and documents produced, but be practical having regard to the fact that most of the applications are by old persons with no proper records. (iv) The criterion for pension under the Scheme is not age, but participation in freedom struggle. The freedom fighters' pension can, therefore, in exceptional cases, be granted even to those who were minors at the time of struggle, if evidence clearly showed that they had participated in the freedom struggle and fulfilled the requirements of the Scheme." The above principles were spelt out to ensure that no genuine freedom fighter was denied pension under the Scheme." Applying the principle stated in the above decisions to the facts of this case, we hold that the learned Single Judge was right in ordering arrears of pension from the date of application. 11. There is no merit in the Writ Appeal and the same is dismissed. The appellant is directed to implement the order of the learned Single Judge within a period of three months from the date of receipt of a copy of this Order. No costs. Consequently, connected Miscellaneous Petition is also closed." 11. In N. Palaniappan vs. State of Tamil Nadu, (2008) 3 MLJ 1382 , this Court, in paragraph 12, held thus:- "12. No costs. Consequently, connected Miscellaneous Petition is also closed." 11. In N. Palaniappan vs. State of Tamil Nadu, (2008) 3 MLJ 1382 , this Court, in paragraph 12, held thus:- "12. On the face of it, as I have stated earlier, it is a classic instance where the Executive instead of taking a pragmatic approach considering the valuable service rendered by Freedom Fighters during the Quit-India movement and other freedom struggle along with Mahatma Gandhiji, had simply thrown out the claim of the petitioner on the basis that certificate issued even by an authority who is authorised by the Government is not believable. It is astonishing to note that certificate issued by a former Minister of this State whose reputation and integrity is beyond doubt by anybody in this country like that of Mr. P. Kakkan, has been rejected by the Executive for no reason whatsoever but merely because such certificate is not authorised. It is also relevant to point out that in this case there is another certificate issued by a co-prisoner Thiru. S. Ramakrishanan Thevar, who subsequently became a Member in the Legislative Assembly as well as Legislative Council of the State. When it is the specific case of the respondents in the counter affidavit that the District Level Screening Committee has been constituted with the District Collector as its Chairman and the District Collector as Chairman, after enquiry, on personal verification has come to the conclusion and recommended sanction of pension, it is not known as to how the second respondent has come to such a conclusion with flimsy reason which is not only shocking to conscience of any person who is interested in the nation and if this is the way a freedom fighter is to be treated, certainly the same cannot be in consonance with the cultural heritage of this great Nation. The notion of the respondents appear to be as if the payment of such amount made under this scheme are only gracious or compassionate in nature. On the other hand, it is but honouring the persons who have fought for the country without expecting anything, at that time, but, without whom, the present hierarchy of setup would not have been possible." 12. On the other hand, it is but honouring the persons who have fought for the country without expecting anything, at that time, but, without whom, the present hierarchy of setup would not have been possible." 12. Following the ratio laid down in the aforesaid decisions, this Court is of the view that the impugned order passed by the first respondent is liable to be set aside and the same is set aside. 13. In fine, this writ petition is allowed and the first respondent is directed to consider the case of the petitioner for grant of "Tamil Ellai Por Thiyagigal Protectors Pension" and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed. No costs.