Mehar Chand (dead) through LRs vs Union of India

G.S. Singhvi, J.—This petition was filed by Shri Mehar Chand on 9.11.1998 for issuance of a mandamus directing the respondents to give him the benefit of Freedom Fighter''s Pension under the Freedom Fighters Pension Scheme, 1972 (for short, ''the 1972 Scheme''), and/or Swatantrata Sainik Sanman Pension Scheme, 1980 (for short ''the 1980 Scheme''). During the pendency of the writ petition, Shri Mehar Chand died and by an order dated 13.11.2000 passed in C.M. No. 2622 of 2000, his legal representatives, including his widow-Smt. Has Kaur were brought on record.

A perusal of the record shows that late Shri Mehar Chand submitted an application dated 2.9.1975 for grant of pension under the 1972 Scheme by claiming that he had suffered imprisonment for over one year in connection with the freedom movement. Vide letter Annexure P-2 dated 15.9.1975, the Government of India declined his request on the ground of delayed receipt of the application. The petitioner reiterated his request vide application Annexure P-4 dated 10.2.1996, which was addressed to the Union Home Secretary and having failed to evoke any response, he filed C.W.P. 1608 of 1996, which was disposed of by a Division Bench on 8.4.1997 in the following terms :-

"In para No. 3 of the written statement, it has been averred that the Union of India has requested the Government of Haryana for their specific recommendations and verification of certain jail records. It has been further stated that on receipt of the same, the matter will be placed before the Committee set up for the scrutiny of documents and grant of pension. The learned counsel for the petitioner accepts these averments. In this view of the matter, this writ petition has become infructuous and is disposed of as such. It will be desirable if the matter can be decided within six months."

Thereafter, Shri Mehar Chand''s claim for grant of Freedom Fighters'' Pension along with other similar claims was considered by the Haryana Swatantrata Sainik Sanman Samiti, Chandigarh in its meeting held on 6.6.1997 under the chairmanship of Shri Ram Singh Jhakhar, which was attended by Sarvshri Balwant Rai Tayal, Ch. Manphool Singh, Suraj Bhan Mittal, Capt. Banwari Lal (INA) and Chand Ram (INA). On the application of Shri Mehar Chand, the Committee took the following decision :-

"The applicant was not present, being Court Case, the Committee considered this case in absence of the applicant. As per copy of the Register of Fozdary Riasat Pataudi dated 26.3.39 produced by Shri Mehar Chand, the accused Shri Nand Kishore and others including the name of Shri Mehar Chand son of Shri Dhan Singh resident of Village Sherpur District Gurgaon were punished for imprisonment of two years and fine of Rs. 100/- and Rs. 200/- or three months imprisonment under various Sections by Lala Girdhari Lal, Civil Magistrate First Class. All these accused were related on 6.10.39 by Diwan Sahab Bahadur on the grounds that the imprisonment which they have already undergone is sufficient. In this position, the actual imprisonment of all these accused, including Shri Mehar Chand comes out of 6 months and 20 days. It may be, that all the above mentioned accused may have been kept as trial prisoners.

In the above position, the Committee has recommended to sanction State as well as Central Freedom Fighter Pension to Shri Mehar Chand son of Shri Dhan Singh."

The Government of Haryana accepted the recommendations of the Committee and vide letter Annexure P7 dated 4.2.1998, the Chief Secretary, Government of Haryana, conveyed sanction of the State Freedom Fighters'' Pension to Shri Mehar Chand with effect from 22.1.1996. However, the Government of India declined to accept his claim for grant of pension under the 1972 Scheme, and/or the 1980 Scheme on the ground that he had not produced original documents to prove the factum of his imprisonment in Pataudi Jail.

The petitioner has pleaded for grant of pension under the schemes framed by the Government of India mainly on the ground that his co-prisoners Shri Manohar Lal, Shri Chhotu and Shri Ramji Lal had been sanctioned pension by the Government of India vide letter dated P5 dated 4.1.1996, issued in pursuance of the orders passed by the High Court in Civil Writ Petition Nos. 7236 and 13981 of 1982. In the writ petition, it has been averred that petitioner-Mehar Chand was convicted and sentenced to imprisonment with Manohar Lal, Chhotu Rain and Ramji Lal on account of his participation in the freedom movement, and once the claim of other persons for grant of Freedom Fighters'' Pension had been accepted, there can be no justification to deny similar benefit to him.

In the written statement filed on behalf of respondent No. 1 in the form of affidavit of Shri R.C. Handa, Under Secretary to the Government of India, Ministry of Home Affairs (Freedom Fighters'' Division), it has been averred that the benefit of Freedom Fighters'' Pension could not be extended to Shri Mehar Chand because of his failure to produce original documents to prove that he had been imprisoned in connection with the freedom movement. According to respondent No. 1, the petitioner had applied for pension in 1975 on the premise that he had suffered imprisonment on account of his participation in Pataudi State Feedom Movement in 1939-40, but he could not produce evidence to prove the factum of his imprisonment.

In a separate written statement, respondent No. 2 -State of Haryana - has admitted that State pension was sanctioned to late Shri Mehar Chand on the basis of recommendations made by Haryana Swatantrata Sainik Samman Samiti, but at the same time, it has tried to controvert the petitioner''s claim by stating that he could not produce the original documents for verification in terms of the directions given by the Government of India.

Mr. R.K. Jain, learned counsel for the petitioner, relied upon an order dated 3.8.1999 passed by this Court in C.W.P. No. 17227 of 1998, Manbhavati v. Union of India, and stated that in pursuance of the directions given by the Court, sanction has been accorded by the Government of India for grant of pension to the widow of Shri Ramji Lal and argued that the factum of grant of pension to the co-prisoners of Shri Mehar Chand should be treated as sufficient for entertaining the claim of his widow. The learned counsel submitted that the case of late Shri Mehar Chand is identical to that of Sarvshri Manohar Lal, Chhotu Ram and Ramji Lal and there can be no valid reason to deny the benefit of pension under the 1972 Scheme/1980 Scheme to the widow of the petitioner on the ground of non-production of original documents to establish his detention in connection with the Pataudi Freedom Movement.

On the other hand, Shri H.S. Giant, counsel for the Union of India, submitted that the claim of Shri Mehar Chand/his widow cannot be accepted without verifying the facts relating to his alleged imprisonment in connection with the Pataudi Freedom Movement and the Government of India rightly declined the prayer on account of non-production of the original documents. He argued that in exercise of its jurisdiction under Article 226 of the Constitution of India, the High Court cannot go into the sufficiency and adequacy of the evidence on the issue of Shri Mehar Chand''s entitlement to get Freedom Fighters'' Pension under either of the two schemes framed by the Government of India. In support of this argument, Shri Giani relied on the decisions of the Supreme Court in Union of India v. Mohan Singh and Ors., 1996(5) S.L.R. 708 : 1996(4) SCT 598 (SC); Union of India Vs. R.V. Swamy alias R. Vellaichamy, ; and Mukund Lal Bhandari and others Vs. Union of India and others, .

Shri Jawant Singh, learned Deputy Advocate General, Haryana, conceded that the Government of India has accepted the recommendations made by the Haryana Swatantrata Sainik Sanman Samiti and sanctioned the State pension in favour of Shri Mehar Chand with effect from 22.1.1996. He also conceded that the stand taken in paragraph 14 of the written statement of respondent No. 1 is wholly incompatible with the sanction of State pension to late Shri Mehar Chand.

We have thoughtfully considered the respective submissions. In C. W.P. 17227 of 1998, Manbliavati v. Union of India, the petitioner had claimed Freedom Fighter''s Pension on the premise that her husband late Shri Ramji Lal had suffered imprisonment in Pataudi Jail on being convicted in connection with Pataudi Freedom Movement. The Union of India resisted her claim on the premise that late Shri Ramji Lal had failed to produce original documents to prove the factum of his imprisonment and after examining the rival pleadings and the arguments of the learned counsel, this Court allowed the writ petition with the following observations :-

"The Government of Haryana accepted the claim of the petitioner and Mehar Chand son of Dhan Singh whose petition numbered as 11608 of 1996 was also disposed of along with the writ petition of the petitioner and sanctioned State pension to both of them. Notwithstanding this, the petitioner has not been given benefit under the schemes framed by the Central Government necessitating the filing of this petition in which she has prayed that a writ in the nature of mandamus be issued directing the respondents to release Freedom Fighter''s Pension to her from the date of submission of her application i.e. 2.9.1975 or in any case, from the date the State Government recognised her as a dependent of a Freedom Fighter i.e. 22.1.1996.

In the counter-affidavit filed by the respondent in the form of affidavit of R.C. Handa son of S.L. Handa, Section Officer, Freedom Fighters'' Division, it has been averred that the petitioner''s claim for grant of pension was rejected by the Government of India vide letter Annexure R3 dated 7.12.1998 on the ground that she could not produce the original documents to prove her entitlement for pension under the 1980 Scheme. In paragraphs 3 and 4 of his affidavit Shri R.C. Handa stated that the grant of pension by the State Government has nothing to do with the scheme framed by the Central Government and also that grant of pension under the central scheme to some other ineligible person cannot justify the grant of similar benefit to the petitioner.

During the course of arguments, we asked the counsel for the Central Government to point out the distinction in the eligibility conditions prescribed by the Government of Haryana on the one hand and the Central Government on the other hand for grant of pensionary benefits to widows of Freedom Fighters but he could not draw our attention to any such distinction. He also failed to place any material before the Court to substantiate the assertion, which is implicit in the affidavit of R.C. Handa that others nave been illegally granted pension under the central scheme. In view of this, we hold the averments made in paragraphs 3 and 4 of the affidavit of Shri R.C. Handa are incorrect and misleading and on the basis of such averments, relief cannot be denied to the petitioner.

Shri R.K. Jain argued and we find merit in his submission that the decision of the State Government to recognise the petitioner as dependent of a Freedom Fighter should be treated as conclusive for determination of her entitlement to get pension under the 1980 Scheme. It can reasonably be presumed that before recognising the petitioner''s status as widow of the deceased Freedom Fighter, the Government of Haryana must have made a thorough enquiry about the imprisonment of Late Shri Ramji Lal and others in 1939 and monetary benefits must have been given to her after the concerned authority felt satisfied that the petitioner''s claim is genuine. The respondent has not placed any material before the Court to rebut this presumption. Therefore, the petitioner''s failure to produce the original record pertaining to her husband''s conviction in 1939 cannot be made a ground for denying the benefits to which she is otherwise entitled under the 1972 and/or the 1980 Scheme(s). We, therefore, hold that the rejection of the petitioner''s claim for grant of the pension to the petitioner under the 1980 Scheme is illegal, arbitrary, unjustified and violative of her fundamental right to equality guaranteed under Article 14 of the Constitution of India."

In our opinion, the decision of Manbhavati''s case (supra) is sufficient to negate the objection raised on behalf of respondent No. 1 to the petitioner''s entitlement to get Freedom Fighter''s Pension under the 1972 Scheme/1980 Scheme and keeping in view the fact that in pursuance of the Court''s order, the co- prisoners of late Shri Mehar Chand have already been granted the benefit under the scheme framed by the Government of India, there does not appear to be any plausible reason to deny relief to Smt. Has Kaur.

Before concluding, we may refer to the decisions relied upon by Shri U.S. Giani. In paragraph 4 of Mukand Lal Bhandari''s case (supra), the Supreme Court held that the High Court cannot go into the sufficiency of evidence relied upon by the Government for determining the freedom fighter''s entitlement to receive pension under one of the schemes framed by it. The fact of Mohan Singh''s case (supra) show that the document relied upon by the petitioner in support of his claim for pension was the certificate issued by a Member of legislative Assembly, who was stated to be a co-prisoner. The Government of India declined to accept his claim. The High Court accepted his claim and misused direction to the respondents to give him the benefit of Freedom Fighter''s Pension, the Supreme Court reversed that order and held that the High Court could not have gone into the declaration or sufficiency of evidence considered by the Government of India. In R.V. Swamy''s case (supra) the High Court had entertained the claim of the writ petitioner and directed the Government of India to re-examine the petitioner''s claim for grant of pension. The Government of India again declined his request by assigning the following reasons :-

"(i) The Government of Tamil Nadu has reported that no warrant of arrest was issued against you and no other acceptable documentary evidence was available in proof of your claimed underground suffering for more than six months.

(ii) No jail record for the claimed imprisonment period from 2nd week of September, 1941, to Ist week of November, 1941 has been furnished.

(iii) Since no warrant of arrest etc. was issued against you as reported by the State Government, the certificates from S/Shri P.S. Lakshmipathy Raju, A.B. Nagier and Dr. T. Khannan D. Ramakrish-nan, I, Mayaudi Bharati and A.K. Sonnamurthu are not acceptable, because for sanction of pension person should have remained underground against some executive of the Government before issue of warrant of arrest etc.

(iv) The non-availability of record certificate with reference to issue of warrant of arrest etc. against you as submitted by you, has been issued in 1998 wherein you did not mention the specific details of case No. etc. in your application for issue of warrant etc. Since earlier in 1985 State Government have already intimated that no arrest warrant etc. was issued against you. In view of these circumstances NARC cannot be accepted.

The High Court of Tamil Nadu ignored the aforementioned reasons and directed the Government of India to release Freed Fighter''s Pensions to the petitioner. In appeal, the Supreme Court held that the High Court was not justified in up-setting the findings recorded by the competent authority.

The facts of the present case show that late Shri Mehar Chand had produced a photo copy of the Register of Fauzdari Riyasat Pataudi dated 26.3.1939 in which the factum of his conviction and the other accused, their imprisonment in pursuance of the order passed by Girdhari Lal, Civil Magistrate Ist Class, and release on 6.10.1939 in pursuance of the order passed by Dewan Sahab Bahadur had been recorded. The genuineness and correctness of the entries contained in the photo copy of the register had not been doubted either by the Government of Haryana or by the Government of India. Rather, the former had accepted the finding recorded by Haryana Swatantrata Sainik San-man Samiti, which had relied on the photo copy of the register for accepting the plea of late Shri Mehar Chand. Thus, the decision taken by the Government of India not to entertain the claim of late Shri Mehar Chand is legally unsustainable and is also violative of the petitioner''s fundamental right to equality.

For the reasons mentioned above, writ petition is allowed. The Government of India is directed to sanction Freedom Fighter''s Pension to Smt. Has Kaur within a period of 3 months from the production of a copy of this order. The benefit of Freedom Fighter''s Pension shall be given to her with effect from 22.1.1996, i.e. the date on which the Haryana Government sanctioned Freedom Fighter''s Pension to Shri Mehar Chand.

Petition allowed.