Shiv Ram Verma vs Union of India

Heard Sri I.B. Singh, learned counsel for the petitioner and Sri G.K. Pandey, learned Additional Standing Counsel for the Central Government.

This writ petition under Article 226 of the Constitution of India, has been filed by Shiv Ram Verma feeling aggrieved by the orders of rejection dated 22.3.2002 and 15.7.2002, Annexure No.9 and 10 to the writ petition, passed by the Central Government, denying freedom fighters pension under the scheme of the Central Government.

The petitioner''s date of birth is 12.7.1929. In the year 1942, the Quit India Movement had started and continued. As per pleadings in the writ petition, the petitioner joined the Movement and on 23.1.1943, he was arrested in connection with distributing the antigovernment leaflets. He was detained in the lockup and was released on 1.3.1943. He was again arrested in district Banaras as some antigovernment letters were censored and remained under detention for approximately one month i.e., from 18.2.1944 to 27.3.1944. The petitioner being an active participant in the freedom movement, he had to leave his study from classIX and his name was struck from the rolls of the school because of his continuous absence from school.

The petitioner claimed the privilege of freedom fighter pension under the State Scheme and he has been awarded the said pension, vide order dated 20.9.1988, Annexure 3 to the writ petition. However, the Central Government not being satisfied with the petitioner''s �underground sufferings� for a period of 6 months or more, by the order dated 22.3.2002, declined to give the benefit of the pension scheme of the Central Government.

The Central Government had considered the matter twice and on the first occasion, denied the claim of the petitioner on the ground that there was contradiction in the two certificates issued by Sri Ram Lakschan Tewari; one issued on 19.2.1983 and the other on 20.8.1989.

The petitioner sent a clarification on 17.5.2002 AnnexureRA2, to the Central Government saying that refusal of the pension on the ground that the two certificates were having some contradictions regarding period of detention, was unfounded as the certificate issued on 19.2.1983 is a certificate in favour of one Kuber Prasad who was also a freedom fighter and wanted in the Quit India Movement. The certificate dated 20.8.1989 is in favour of the petitioner issued by Sri Ram Lakschan Tewari, another freedom fighter, who admittedly, remained in Jail for more than 5 years. Explaining the reason for filing the certificate issued in favour of Sri Kuber Prasad, the petitioner submitted that it was only to show that the said certificate issued by Sri Ram Lakschan Tewari was admitted by the Central Government as an admissible piece of evidence while granting the pension under the Central Government Scheme to Sri Kuber Prasad and since Sri Ram Lakschan Tewari has issued the certificate in favour of the petitioner also, therefore, there was no reason for not accepting the claim of the petitioner for the freedom fighter''s pension under the scheme. However, by the order dated 15.7.2002, Annexure10 to the writ petition, the second order of rejection of the claim of the petitioner has been passed. Therefore, both the orders dated 22.3.2002 and 15.7.2002 are under challenge in the writ petition.

The second order of rejection dated 15.7.2002 appears to have been passed in addition to the order already passed on 22.3.2002. Therefore, we consider the challenge of the petitioner with respect to both the orders.

The petitioner''s claim has been rejected mainly on the following grounds:

(a) There is contradiction in the two certificates issued by Sri Ram Lakschan Tewari as aforesaid;

(b) Sri Ram Lakschan Tewari himself was in Jail during the period when he had given certificate of the petitioner being underground and, therefore, suspicion has been raised saying that when he was in Jail, how could he give certificate of absconder or being underground and also because out of the period which was shown as ''remaining underground'', the petitioner was admittedly under detention for two months and 17 days and, therefore, the period over lapped;

(c) In the certificate issued by Sri Ram Lakschan Tewari, he did not give his undertaking that in case the information given by him is found to be incorrect, then he would loose his pension under the Central Government Scheme;

(d) The District Magistrate has not verified that the petitioner was in Jail during the period mentioned therein as the Jail record does not say so and lastly;

(e) There is no evidence of underground suffering for the period of more than six months.

We have considered the reasons given by the Central Government in rejecting the claim of the petitioner.

The Rule/scheme which permits the payment of pension under the Central Scheme, is enunciated in the letter issued to Chief Secretary, Government of U.P. dated 6.8.1980 by the Government of India/Bharat Sarkar, Ministry of Home Affairs/Grih Mantralaya. The aforesaid scheme communicates the decision taken by the Government to be applicable with effect from 1.8.1980. The Freedom Fighters Pension Scheme, 1972 (in short as the ''scheme''), prescribes the quantum of pension under different circumstances and the relevant provision which is attracted in the present case, is as follows:

�(vii) In the case of claims of underground suffering/internment/externment where it has not been possible for applicants to produce evidence from official records as hitherto imposed, certificates from prominent freedom fighter who had themselves undergone imprisonment for more than 5 years will be accepted as adequate evidence.�

In such a situation, the persons who had borne underground suffering/internment/externment for the required period, are entitled for the pension but since admissible evidence in official record is not available, therefore, to cover up such a situation and to do justice to the persons falling in the said categories and for giving recognition to their sacrifice during freedom struggle, the Central Government has provided for having certificate from a freedom fighter who himself has undergone imprisonment for more than 5 years and if he certifies that the person claiming pension, has been subjected to any one of the sufferings mentioned therein, i.e., he has suffered underground suffering/ externment/ internment, the certificate issued to the petitioner by a person who qualifies for issuing such certificate, shall be taken as adequate piece of evidence for the purpose of grant of pension. This means that unless there are very cogent and special reasons for disbelieving the certificate issued by such freedom fighter, prisoner, the same has to be given due weight and cannot be lightly brushed aside merely on suspicion of the authorities. Any other interpretation of the said provision would defeat the purpose of the pension scheme and would also deprive those freedom fighters who are otherwise entitled for pension but are handicapped in claiming the pension because they cannot produce the official record about underground suffering/internment or externment as the case may be.

The fact that the petitioner was an active participant in the freedom struggle, could not be disputed by the respondents. This is also evident from the fact that as per own case of the State Government and the Central Government, the petitioner was detained in police custody once for a period of 31.4.1943 to 1.3.1943 in connection with distributing antiGovernment leaflets and thereafter again was detained for a period of more than one month i.e., 18.2.1944 to 27.3.1944 for some antiGovernment letter being censored.

The petitioner has also filed a copy of the judgment passed by the Special Judge, Ballia in Case No.14/43: U/S 436 I.P.C. P.S. Kotwali, King Emperor v. Pratap and others, in support of his claim that he went underground as he was involved in freedom struggle.

The judgment says that a plan was hatched consisting of 14 persons including the petitioner and his brother Balram for burning the Office of the District Magistrate. In this connection, three meetings took place. In the first and second meeting, these persons were present namely, the petitioner and his brother but in the third meeting on 5.1.1943, neither the petitioner was present nor his brother was present. On 6.1.1943, when the accused persons went to put the Office of the District Magistrate on fire, they found that a person came there smoking and, therefore, they did not burn the Office of the District Magistrate but shifted to Government School and burnt the same. A chargesheet was submitted against 9 persons who were accused in the case after investigation by the police. The trial was taken against four accused persons as four of them absconded. In the said case one Mukteshwar who was tendered pardon and was an approver, had given his statement certifying and verifying the presence of the petitioner in the aforesaid plan and the two meetings held for the said plan. It is a different matter that in the investigatin, the police after investigation, did not chargesheet him probably because he was not present when the school was burnt and consequently, the trial also could not commence against the petitioner as he was not a chargesheeted accused in the aforesaid case but the fact remains that he was a party in the freedom movement. For that matter, he joined in hatching a plan for burning the District Magistrate''s Office.

Under these circumstances, it is not unbelieveable that a person who was an active participant in the two meetings which took place for chalking out and carrying out a plan for burning of the District Magistrate''s Office, would not be afraid of arrest by the police and that he would not have been taken into custody by the police and would not hide himself during all the period, till the actual implementation of the hatched plan and thereafter also, to avoid his arrest. In these circumstances, if the petitioner went underground, it would be prudent and normal and there is no reason not to believe the story set up by the petitioner.

Information asked by the Central Govenrment from the State Government that whether the petitioner, in the aforesaid criminal trial, was awarded the sentence, was a wholly irrelevant query, as it was never the case of the petitioner that he was tried or sentenced in the trial. The facts mentioned in the judgment none the less corroborate the theory set up by the petitioner that he was actively involved in the freedom struggle and his involvement was such that he had to bear underground suffering during all the period as aforesaid. It should not have been forgotten by the Central Govenrment as already stated, that it was a period when Quit India Movement was in full bloom and there were many who jumped into that movement.

Admittedly, there was no official record to substantiate the plea of the petitioner that he suffered the agony of being underground for more than 6 months, it was, therefore, an obligation upon the Central Government to consider the case of the petitioner in the light of its own scheme and not to act beyond the requirements under the scheme.

It is the specific case of the petitioner that he went underground for more than six months. He had furnished the judgment dated 26.3.1943 in the Case No.14/43 (Government v. Pratap Etc.) under Section 436 IPC P.S. Kotwali, passed by the Special Judge, Mahodya, Ballia only to show that his name was taken by the approver, whose statement was relied upon by the Judge in deciding the case and secondly, Sri Ram Lakschan Tewari who was in jail for more than 5 years, had given the requisite certificate.

The certificate issued by Sri Ram Lakschan Tewari, was rejected on the ground that it does not contain the undertaking that if the information given by him is found to be incorrect, then Sri Ram Lakschan Tewari will loose his pension which has been given to him by the Central Government.

The rejection of the certificate of Sri Ram Lakschan Tewari, on the ground that it did not contain his undertaking for losing his pension given by the Central Government, in case the information given by him regarding the petitioner was found to be incorrect, could not be substantiated by any provision of the scheme which required giving of such an undertaking. Since no such undertaking was required to be given under the scheme, the certificate issued by him could not have been rejected on that ground. Further, even in the case of Sri Kuber Prasad, the certificate given by Sri Ram Lakschan Tewari, did not contain the said undertaking but the former was given the benefit of that certificate.

The only requirement for issuing certificate was that a prominent freedom fighter who had been in Jail for more than 5 years for freedom struggle, should certify about these facts namely, underground suffering/internment/externment for more than 6 months, which certificate would be an adequate piece of evidence for accepting the claim of the applicant. Sri Ram Lakschan Tewari, admittedly, was getting his pension under the scheme of Central Govenrment as well as that of State Government and was admittedly a prominent freedom fighter, who was detained in Jail for more than 5 years for his activities in freedom movement. The authority to issue the required certified by Sri Ram Lakschan Tewari, has never been disputed by the Central Government nor is in dispute.

The certificate issued by the District Magistrate, Ballia dated 12.1.1949 verifies the detention of the petitioner in the lock up from 23.1.1943 to 1.3.1943 and 18.2.1944 to 27.3.1944. The school leaving certificate shows that right from 5.2.1943, the petitioner remained continuous absent from the school. There appears to be no reason to discard these documents which were more than 20 years old.

We also take note of the fact that the State Government as well as the Central Government both, have not disputed the correctness of the certificate issued to the petitioner by Sri Ram Lakschan Tewari but the certificate has not been relied upon for the two reasons aforesaid namely, that the aforesaid undertaking was not given by him and that the two certificates issued by Sri Ram Lakschan Tewadri, were having some contradictions.

On the basis of the documents submitted by the petitioner, the State Government has already awarded pension under the State scheme and the contradictions in the two certificates, were not all relevant and in fact there were no contradictions in the certificates issued by Sri Ram Lakschan Tewari as one certificate related to Sri Kuber Prasad and the other related to the petitioner, is a valid certificate, hence was no ambiguity.

In regard to the contradictions in the certificates issued by Sri Ram Lakschan Tewari, it has rightly been brought to the notice of this Court that the certificate dated 19.2.1983 was issued in favour of one Sri Kuber Prasad which was filed in support of the plea that Sri Ram Lakschan Tewari was a freedom fighter and remained in Jail for more than 5 years and the certificate given by him has been accepted in case of Sri Kuber Prasad by the Central Government. The petitioner in his representation dated 17.5.1989, clarified and explained the circumstances regarding issuance of the certificate in his favour.

We are thus, convinced that the order was passed on incorrect presumption.

In so far as the undertaking of Sri Ram Lakschan Tewari is concerned, we have already observed that there was no requirement under the scheme to given any such undertaking and, therefore, it can also be not a ground for nongrant of pension by the Central Government.

So far as the underground suffering for the required period is concerned, it is a question which is though, factual but for which no hard and fast rule can be laid down to establish and prove that the person has suffered underground suffering and, therefore, the Central Government being conscious of the said fact, has given the mechanism of getting a certificate from a prominent freedom fighter prisoner who remained in Jail for more than 5 years. The official record would be hardly of any assistance to indicate that such a person has undergone sufferings for more than 6 months. If it be a case of absconsion i.e., where a person is accused in a criminal case, is absconding, the trial cannot not be proceeded with, then of course, that person would be declared a proclaimed absconder. Such a fact shall be mentioned in the case and unless he surrenders or is arrested, the trial cannot proceed. But in a case of hiding or being underground, there may be no official record establishing the said fact.

The argument of the learned counsel for the petitioner that underground suffering cannot be equated with absconsion, has force and, this should be considered by the Central Government. The underground suffering has to be gathered from the plain plea of the freedom fighter and his conduct and role in the freedom movement keeping in mind whether a person was actually actively involved in freedom movement, and his activities were such, that police must be in his search, and that he had to remain underground for avoiding arrest or for avoiding any other type of torture by the police and the administration. Not necessarily in all such cases, the freedom fighters were arrested after lodging of an FIR, or framing of a chargesheet. But they were surely an eye sore for the administration and had to hide themselves. Of course, if it is certified by a person authorized to issue such a certificate that the person has to remain underground for his activities which suffering he suffered for more than six months, then such a certificate cannot be ignored. Of course, other relevant material may also be considered for the purpose.

Merely because the certificate was issued by Sri Ram Lakschan Tewari when he was in Jail and this covered the period of detention of the petitioner when he was detained in lockup for more than 2 months or so, can also not be a ground for rejecting his claim nor such declaration given by the freedom fighter could be treated as contradiction so as to dislodge the certificate issued by him.

Since both the impugned orders dated 22.3.2002 and 15.7.2002 contained in Annexure No.9 and 10 to the writ petition, passed by the Central Government, do not take into account the relevant considerations which ought to have been taken care of and the orders have been passed on such reasons which are not sustainable, we quash both these orders. We further direct that the Central Government shall reconsider the claim of the petitioner for freedom fighter pension under the scheme in the light of observations made in this judgment. It shall be done within a maximum period of two months from the date of receipt of a certified copy of this order.

The writ petition is allowed. No orders as to costs.

(Petition allowed)