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2017 DIGILAW 89 (ORI)

Ram Chandra Das v. State of Orissa

2017-01-19

D.P.CHOUDHURY

body2017
JUDGMENT : Dr. D.P. Choudhury, J. This writ petition has been filed challenging the rejection of the prayer of the petitioner to allow him pension under the Freedom Fighters’ Pension Scheme for non-jailed workers/fighters. FACTS 2. The factual matrix leading to the case of the petitioner is that the petitioner is an active Freedom Fighter of Pre-independent period as he had dedicated his young life for the cause of the Nation and its Independence. During 1938 when “Nilagiri Praja Mandal” was reigning, the petitioner was a front ranking participant in the freedom struggle but he was not imprisoned as he was hiding himself in Nilagiri forest. As there was no Scheme under the Government of India and Orissa for non-jailed and non-imprisoned freedom fighters, they brought out a Scheme called Freedom Swatantra Sainik Sanman Pension (hereinafter called ‘the Scheme’) to honour such freedom fighters. As per the Scheme the petitioner has applied way back in between the year 1980 to 1990 for sanctioning pension or allowance. Under the Scheme, whoever the applicant is required to be certified by the Freedom Fighter Pensioner. Petitioner has filed the said Certificate of Shri Keshab Chandra Panigrahi to show that the petitioner was an active worker in the “Nilagiri Praja Mandal” during the year 1938. Another freedom fighter namely Kartikeswar Mohapatra has also certified in the similar manner in favour of the petitioner. After the application submitted by the petitioner, the Finance Department issued letter to the Sub-Treasury Officer, Nilagiri for verification of documents and genuineness of the Certificates given by the above freedom fighters. But without application of mind and appraisal of evidences, the prayer of the petitioner was rejected. 3. Be it stated that the purported order of rejection is erroneous, arbitrary and non-application of mind. So, the petitioner filed the present case to issue direction to the opposite parties to grant non-jailed Freedom Fighters’ Pension from the year 1990 and current pension. 4. Per contra, counter is filed by the opposite party No.1 stating therein that the writ petition is not maintainable under law and facts. It is the case of the opposite parties that the petitioner is not eligible under the Liberalized Freedom Fighters’ Pension Scheme, 2002 because the applicant has not applied to Government for Freedom Fighters’ Pension prior to 27.8.1990 (the cutoff date) in the prescribed format as required under the said Scheme 2002. It is the case of the opposite parties that the petitioner is not eligible under the Liberalized Freedom Fighters’ Pension Scheme, 2002 because the applicant has not applied to Government for Freedom Fighters’ Pension prior to 27.8.1990 (the cutoff date) in the prescribed format as required under the said Scheme 2002. The petitioner has not also produced the original documents, i.e., Personal Knowledge Certificates from the Central Freedom Fighters’ Pension holder or State (Jailed) Freedom Fighters’ Pension holder along with the application by the aforesaid date nor could he produce the proof of submission of such application by the aforesaid cutoff date. Since there are documents not filed fulfilling the criteria to receive pension under the aforesaid Scheme, the opposite party No.1 rightly rejected the prayer for proper examination of the documents. Even if the Personal Knowledge Certificates submitted by the petitioner were verified, but that criteria is not enough to sanction Freedom Fighters’ Pension (Non-jailed) unless he has fulfilled the other conditions, i.e., submission of application prior to the cutoff date. So, the opposite parties claim for rejection of the writ petition. SUBMISSIONS 5. It is submitted by the learned counsel for the petitioner that there are clear proofs of submission of application by the cutoff date because the petitioner has approached the authority from time to time. He further submitted that the opposite parties have received the application and directed to submit Personal Knowledge Certificate on 1.8.2013 in original issued by the Freedom Fighters’ Pension holder. According to him, unless there is submission of application by the date, the question of asking the Treasury Officer for verification of the signature of the Freedom Fighters’ Pension holder does not arise. So, he submitted that the petitioner has filed the application in time and the Department has shown the action but unfortunately rejected the prayer for sanction of pension with alternative motive. So, he submitted to allow the arrear and current pension. 6. Learned counsel for the opposite parties submitted that the criteria for allowing the pension has already been well explained in Annexure-1. According to the Scheme the applicant has to file the application by 27.8.1990 and there is strict provision that any application received thereafter will not be considered. So, he submitted to allow the arrear and current pension. 6. Learned counsel for the opposite parties submitted that the criteria for allowing the pension has already been well explained in Annexure-1. According to the Scheme the applicant has to file the application by 27.8.1990 and there is strict provision that any application received thereafter will not be considered. He further submitted that the applicant has to file the documents of his participation in freedom struggle and in absence of that he can also file the Personal Knowledge Certificate (PKC) of two Freedom Fighters who actively participated in the freedom struggle. According to him, in the instant case the petitioner has not applied in format by the cutoff date and assuming that he has applied, he has not filed the PKC issued by the two Freedom Fighters’ Pension holder. Since the petitioner has not filed the application by the cutoff date and the original PKCs have also not annexed to the application which is filed after the cutoff date, the criteria for Freedom struggle pension is not made available to the petitioner. 7. The main points for consideration:- (i) Whether the petitioner has filed the necessary application by the cutoff date ? (ii) Whether he is entitled to the Non-Jailed Freedom Fighters’ Pension ? DISCUSSIONS POINT NO.(i) : 8. It is admitted fact that the State Government in Finance Department has issued a resolution on 9.10.2002 to sanction the pension to the Freedom Fighters under the Orissa Freedom Fighters’ Pension Scheme vide Annexure-1 and Annexure-A/1. It is also admitted fact that there was cutoff date fixed such as 27.8.1990 by the date of which one can apply and if any application filed thereafter will not be accepted. Amongst other grounds, it is stated that the pensioner must be 18 years by 1942 or has taken birth before 1924. The age will be determined as per the voter list. The applicant has to file the Government documents in support of his claim and in absence of the same, he or she must file certificates of two Freedom Fighters’ Pension holder certifying the applicant to be the freedom fighter. It is also the condition that the applicant will only eligible to receive Rs.700/-per month. 9. Petitioner has produced copy of the application sent on 12.3.1980, 6.4.1985, 8.10.1988. It is also the condition that the applicant will only eligible to receive Rs.700/-per month. 9. Petitioner has produced copy of the application sent on 12.3.1980, 6.4.1985, 8.10.1988. It appears that the petitioner has made application to the Hon’ble Chief Minister on those dates vide Annexure-2 series. It further appears that vide Annexure-3 the petitioner has filed copy of the affidavit of Shri Keshab Chandra Panigrahi, who has certified that the petitioner was actively associated with “Praja Mandal” from 1938 till 1947 and he has concealed him in different places and he has also been harassed by the Police at that time in many occasions. Petitioner has also filed the copy of the letter dated 1.8.2013 vide Annexure-4 to show that the Finance Department issued letter to him to submit another Personal Knowledge Certificate with original affidavit issued by another Freedom Fighter who is in receipt of the Central SS Pension/State Jailed Freedom Fighters’ Pension early. Petitioner has also filed the copy of the letter dated 26.9.2013 issued by the Finance Department to the Sub-Treasury Officer, Nilagiri to verify the Certificate issued by Shri Keshab Chandra Panigrahi. But at last on 29.1.2015 the petitioner got a letter vide Annexure-8 rejecting his claim as he has not submitted the application prior to 27.8.1990. 10. The above documents vide Annexure-2 series have neither been denied in the counter nor by submissions by the learned Additional Standing Counsel. Unless the applications are received, the follow up action vide Annexures-4, 5 and 7 could not have been taken by the opposite parties. Even if the petitioner has not filed the application on format but the application sent by him along with affidavit of Shri Keshab Chandra Panigrahi to the Hon’ble Chief Minister on different dates by the cutoff date must have reached the Finance Department so as to prompt them to take action by asking the petitioner to remove the defects and send the papers to the Sub-Treasury Officer to verify the identification of the Freedom Fighters’ Pension holder Shri Panigrahi. So, the reason taken by the opposite parties that the applications were not submitted prior to 27.8.1990 is neither acceptable nor appreciated. Therefore, the Court is of the opinion that the petitioner has filed the application for sanction of the said pension under the Scheme by the cutoff date. Point No.(i) is answered accordingly. POINT NO.(ii) 11. So, the reason taken by the opposite parties that the applications were not submitted prior to 27.8.1990 is neither acceptable nor appreciated. Therefore, the Court is of the opinion that the petitioner has filed the application for sanction of the said pension under the Scheme by the cutoff date. Point No.(i) is answered accordingly. POINT NO.(ii) 11. When it is opined that the application has been received by the time and follow up action has been taken, it is for the opposite parties to consider the same. It is trite in law to say that the pension allowable to the Freedom Fighters is not only to give them some financial benefits but also to honour a Freedom Fighter who has sacrificed for the freedom of the nation. 12. It is reported in Gurdial Singh -V- Union of India and others; (2001) 8 SCC 8 and Their Lordships, at paragraph-6, have observed as follow: “6. 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 a foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the authorities concerned 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's case (supra) 1993 Supp (3) SCC 2 observed: "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. 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. The preference in employment, allotment of accommodation and in admission to schools and colleges to their kith and kin etc., are also the other benefits which have been made available to them for quite sometime now. Xx xx xx xx" With due respect to the above decision, it appears that the Scheme was launched with avowed object and it is purely based on the honour for the freedom fighters who have sacrificed their lives for the country. In the same decision, the standard of proof required to prove for obtaining pension is well discussed at paragraph-7 of the judgment of the Hon’ble Supreme Court in the case of Gurdial Singh (Supra), which is reproduced as under: “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. 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.” With due regard to the aforesaid decision, it must be held that the technicalities should not stand on the way to refuse the Freedom Fighters’ Pension as the pension is only granted to honour the Freedom Fighters who have fought for the independence of the nation. Freedom Fighters’ Pension is not a bounty but an honour to the nation and the heroes who have sacrificed their lives for the nation. So, keeping in view of the aforesaid decision and principles enunciated therein, it must be held that the application of the petitioner should have been considered instead of rejecting the same in accordance with the Scheme. So, since provisions of the Scheme have not been properly followed, the order of rejection of pension vide Annexure-8 is illegal and improper. Point No.(ii) is answered accordingly. CONCLUSION 13. So, since provisions of the Scheme have not been properly followed, the order of rejection of pension vide Annexure-8 is illegal and improper. Point No.(ii) is answered accordingly. CONCLUSION 13. It has been already observed in the aforesaid paragraphs that petitioner has submitted his application by the cutoff date but the same has not been acted upon by opposite parties properly. Since it is observed above that Annexure-8 is neither legal nor proper, the same is liable to be quashed and the Court do so. 14. The opposite party No.1 is directed to receive a proper application in format from the petitioner, if it finds that the applications submitted by the cutoff date as observed in the aforesaid paragraphs are inadequate, along with the required documents and dispose of the same by verifying the PKC filed by the petitioner and on verification if they are found genuine, the opposite party No.1 would sanction the Freedom Fighters’ Pension from the cutoff date, i.e., 27.8.1990 and also allow the current Freedom Fighters’ Pension. The petitioner is directed to cooperate the opposite parties in supplying the necessary documents. The entire exercise is to be completed within a period of four months from today. The writ petition is disposed of accordingly.