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2014 DIGILAW 953 (HP)

Union of India v. Geeta Devi

2014-07-23

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. Under challenge in this appeal is the judgment dated 21.7.2011 passed by the learned Single Judge in CWP No. 100 of 2010 titled Geeta Devi vs. Union of India and another whereby he allowed the petition by granting freedom fighter pension under “Swatantrata Senani Scheme, 1980. 2. The writ petitioner (now deceased) had claimed himself to be a genuine freedom fighter and participated in Bilaspur Estate Prajamandal Movement during 1946 to 1948. He had also claimed that he remained externed from the District during 1946 to 1948 on the verbal orders of the then Rajasahib (King) of Bilaspur Estate. 3. This claim of the writ petitioner was stated to be farfetched as there was no documentary evidence produced by the writ petitioner in support of his claim. It was alleged that he had produced only the personal knowledge certificates which were not acceptable as the certifiers had not indicated in the certificates so issued that they themselves had undergone two years (one year in case of Ex-MLA/MP) proven Jail suffering, which was a pre-condition to issue such certificates, therefore, the petition could not have been allowed. 4. We have heard learned counsel for the parties and have also gone through the records carefully. 5. Undisputably, the Scheme for granting freedom fighters’ pension was introduced in the year 1972 on the occasion of Silver Jubilee of National Independence. 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. The object of the scheme is not only to honour but also to mitigate the sufferings of the persons who had scarified their all for the sake of country, hence are liberal and not a technical approach is required to 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 material 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. 6. Once, it is evident on the basis of the material 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. 6. The writ petitioner was 95 years old when he required financial assistance under the scheme and applied for the same on 20.9.1995 alongwith certificates dated 12.6.1995 issued by Mansa Ram, Freedom Fighter, Bilaspur (Annexure PA) and another certificate issued by Chet Ram, Freedom Fighter, who was getting his freedom fighter pension vide PPO No. 17/B/307/73 FF, and had in fact undergone imprisonment for a period of two years and was thus an eligible certifier under the Scheme. Then there was also a certificate issued by Narottam Dutt Shastri, Ex-MLA Freedom Fighter, Ex-Vice President of Bilaspur State ‘Praja Mandal’. Unfortunately, the claim of the writ petitioner was rejected by respondent No.5 on 21.4.1997. This constrained the writ petitioner to file CWP No. 531 of 1998 before this Court which came to be decided by the Hon’ble Division Bench on 3.5.1999 with a direction to the respondents to reconsider the case of the writ petitioner within three months, but again it was rejected on 30.6.1999 by the respondents. Vide letter dated 23.5.2007 (Annexure PE) the respondents communicated to the writ petitioner that they have decided to (conditionally) sanction pension under the ‘Swatantrata Sainik Samman Pension Scheme’ 1980 subject to future judicial remedy and requested him to supply the documents mentioned in the said letter. After that, the writ petitioner was issued another communication dated 9.7.2007 (Annexure PF) wherein the grounds of rejection were contained in para-7 of the said letter which reads as under : “7 On examination of the case, it is found that Shri Munshi Ram is not eligible for grant of Samman pension due to the following discrepancies/ shortcomings : 1. He has not furnished any record-based primary evidence, duly verified by the State Government, in support of any of his claimed suffering (as indicated in para 6 above). 2. He has not furnished a valid Non-Availability of Records Certificate (NARC) from the State Government (i.e., the competent authority) containing all ingredients prescribed therefore (as indicated in para 6 above). 3. He has not furnished any record-based primary evidence, duly verified by the State Government, in support of any of his claimed suffering (as indicated in para 6 above). 2. He has not furnished a valid Non-Availability of Records Certificate (NARC) from the State Government (i.e., the competent authority) containing all ingredients prescribed therefore (as indicated in para 6 above). 3. In the absence of a valid NARC, secondary evidence, i.e., Personal Knowledge Certificates (PKCs)for underground and externment suffering and Co-Prisoner Certificate (CPC) for imprisonment suffering cannot be considered and are not acceptable. The PKCs submitted by Shri Munshi Ram from S/Shri Chet Ram and Narottam Datt Shastri have, however, been scrutinized. The same are not acceptable as the certifiers have not furnished any record/evidence of their own jail suffering of minimum two years (i.e., they have furnished no evidence to establish that they are eligible certifiers). 4. Shri Munshi Ramhas not submitted any Co- Prisoners Certificate. 5. The State Government of Himachal Pradesh vide its letter dated 21.6.1996 has inter-alia intimated that a detailed enquiry was conducted by the Deputy Commissioner, Bilaspur regarding the claim of Shri Munshi Ram. The Deputy Commissioner, Bilaspur vide his letter dated 16.5.1996 reported that Shri Munshi Ram is not eligible for grant of Central Samman Pension. The report of the State Government is negative, and made after detailed enquiry by the Deputy Commissioner, Bilaspur.” 7. The writ petitioner again took shelter before this Court by filing yet another writ petition registered as CWP No. 65 of 2000 challenging the decision dated 30.6.1999 and consequent order dated 9.7.2007. This Court examined the entire issue threadbare and allowed the writ petition on 29.7.2008 by passing the following order : “Consequently, in view of the observations made hereinabove, the writ petition is allowed. Annexures PD dated 30.6.1999 and PF dated 9.7.2007 are quashed and set aside. The respondent-State is directed to recommend the case of the petitioner in view of the observations made hereinabove for the grant of pension under the ‘Swatantarta Sainik Samman Pension Scheme, 1980’ as amended from time to time within a period of three weeks from today to respondent No.1 and respondent No.1 on the basis of the recommendations made by the State Government shall decide the case of the petitioner within six weeks after the receipt of the recommendations from the State Government. It is clarified that the Central Government will consider the case of the petitioner on the basis of the secondary evidence furnished by the petitioner without insisting for the non-availability of record certificate (NARC) since he was externed on the basis of the verbal orders of the then-Raja of Bilaspur. There shall be no order as to costs costs”. 8. Surprisingly, the respondents again rejected the claim of the writ petitioner vide letter dated 9.1.2009. Paragraph-5 of which reads as under: “5. On examination of the claim, it is found that Shri Munshi Ram is not eligible for grant of Samman pension due to the following discrepancies/ shortcomings : (i) He has not furnished any acceptable primary record-based evidence duly verified by the State Government in support of his claimed suffering as per para 4 above. (ii) The State Government has stated that Shri Munshi Ram has failed to produce any documentary evidence to prove his forced exile and grabbing of his land by local residence. He has also unable to produce any other evidence in support of his claim except the earlier adduced certificate issued by the freedom fighters. The State Government has concluded that there is no documentary evidence which can endorse the version of aforesaid freedom fighters. (iii) The State Government vide his letter dated 21.6.1996 inter alia intimated that a detailed enquiry conducted by D.C. Bilaspur and reported that Shri Munshi Ram is not eligible for grant of Central Samman Pension. (iv) He is also not submitted any valid co-prisoner certificates in the prescribed proforma.” 9. The Hon’ble Supreme Court in Gurdial Singh vs. Union of India and others (2001) 8 SCC 8 laid down the object of the scheme in the following terms : “The scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle without any expectation of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country. This Court in Mukand Lal Bhandari case observed (SCC pp.7-8, para 9) "The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependents. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges of their kith and kin etc., are also the other benefits which have been made available to them for quite sometime now." The Court categorically mentioned that the pension under the scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not”. The standard of proof required to establish a case is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of a party. This position has been made clear when one reads paragraph-7 of the judgment from Gurdial Singh’s case (supra) which provides : “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 scheme have 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 touch-stone of 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.” 10. 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.” 10. In State of Orissa vs. Choudhuri Nayak (2010) 8 SCC 796 , the Hon’ble Supreme Court has held that no genuine Freedom Fighter should be denied pension. 11. There is no quarrel with the submission made by the appellants that in term of the scheme, the writ petitioner was required to prove his externment by furnishing of following evidence : (i) “Primary evidence : Documentary evidence by way of an order of externment or any other corroboratory documentary evidence proclaiming that the applicant was externed from the district. (ii) Secondary evidence : In the absence of primary record based evidence from official records, a Non-availability of Record Certificate (NARC) from the concerned State/Union Territory Administration, alongwith a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has undergone imprisonment for two years or more and who happened to be from the same administrative district (before the reorganization of the State) and their area of operation was the same can be submitted as supporting evidence to the claim.” 12. From the records, we find that the writ petitioner had led sufficient secondary evidence to show that he had been externed and it was on account of these facts that the case of the writ petitioner had been recommended and forwarded by the State Government to the Central Government vide letter dated 21.6.1996 with the necessary and complete record. The State at that time had sought report from the Deputy Commissioner concerned, who had recorded the statements of S/Sh. Sant Ram and Gopala, besides recording the statement of the petitioner. The petitioner had also supported his claim by filing an affidavit that he remained underground pursuant to the oral externment orders of the erstwhile Ruler State of Bilaspur. Not only this, he had further stated that taking the advantage of his externment some other persons had grabbed his landed property. The case of the petitioner was duly supported by one Sh. Not only this, he had further stated that taking the advantage of his externment some other persons had grabbed his landed property. The case of the petitioner was duly supported by one Sh. Sant Ram in his affidavit filed before the Deputy Commissioner that meeting used to take place in the house of the petitioner and that coming to know about this fact, the petitioner was given severe beatings by the Ruler. Even Sant Ram had also been externed. The petitioner’s case is further corroborated by Gopala. 13. The writ petitioner unfortunately, expired while prosecuting his claim on 12.11.2010. The respondents have adopted hypertechnical approach while dealing with the case of the writ petitioner and have ignored the basic principle/objective of the scheme intended to give the benefit to the sufferers of the freedom movement. The case of the writ petitioner has been rejected by ignoring the mandate of law and the scheme. The impugned order has been passed with a close mind completely ignoring the verdict of the Hon’ble Supreme Court on the subject particularly Mukund Lal Bhandari and others vs. Union of India and others 1993 Supp (3) SCC 2, Gurdial Singh vs. Union of India and others (2001) 8 SCC 8 and State of Orissa vs. Choudhuri Nayak (2010) 8 SCC 796 . 14. Accordingly, we find no merit in the appeal and the same is dismissed. At this stage, learned Assistant Solicitor General of India represents that the direction of the learned Single Judge awarding costs of Rs.10,000/- may be set-aside. 15. We have given our deep and thoughtful consideration to this submission and find force in such submission of learned counsel for the appellants as it is established on record that the stand of the appellants even in the given facts and circumstances could not be said to be cantankerous thereby inviting the imposition of costs. We accordingly, set-aside the order to this extent, however, we make it clear that in case the appellants do not comply with the directions as contained in the judgment passed by the learned Single Judge within a period of 90 days, the appellants would be liable to pay 9% interest on the amount due from the date of the application, which needless to say, shall be at the first stage paid by the department and thereafter recoverable from the erring official(s). Accordingly the appeal is disposed of in the aforesaid terms, so also the pending application(s) if any.