AI Structured Summary
Not yet generated for this judgment
Judgment
R. Sudhakar, J.—This Writ Petition is filed praying for the issuance of a writ of mandamus directing the first Respondent to grant the Freedom Fighters Pension to the Petitioner from 1992 on the date of his application under Central Swatanthara Sainik Samman Scheme and also direct the Respondents 2 and 3 to grant the Freedom Fighters pension to the Petitioner under the Freedom Fighters Pension Scheme of Tamil Nadu State Government.
It is stated in the affidavit filed in support of the petition that the Petitioner is 91 years old. Freedom Fighter and he has taken part in the agitation, viz., Toddy Shop Picketing, British goods boycott movement and other freedom struggle movements started by Mahathma Gandhi. That during August 1942. Petitioner participated in "Quit India Movement" and "Do die struggle". When he took part in protest march against the arrest of National Leaders, he was lathi charged, arrested and detained in Tanjoor Special Jail and Madurai Central Jail and suffered imprisonment for more than 1 year from 6.9.1942 to 5.8.1943. He was also detained in Vellore Central Jail from 23.9.1943 to 23.3.1944 along with prominent freedom fighters I. Mayandi Barathi and A.M. Lakshmana Naidu. Further, he absconded during the period from 1.4.1944 to 1.12.1944 to avoid arrest and took part in the agitation against the British Government. To prove the above facts, he has furnished the certificates issued by prominent patriotic freedom fighters like Shri I. Mayandi Barathi and Shri Lakshmana Naidu. It is also stated that the Petitioner was awarded "Thamira Patra" by Madurai Freedom Fighters Samithy for his patriotic service for the freedom of our country.
In order to honour and respect the sacrifice and service rendered by Freedom Fighters, Government of India has announced The Freedom Fighters Pension Scheme. It is stated that the Petitioner made several representations by way of written applications to the Respondents on 24.1.1992, 1.2.1992, 12.3.1992, 14.4.1997, 14.8.1997,6.10.1997 and 6.6.2000 claiming freedom fighter''s pension. Petitioner claims that he had enclosed the required particulars and documents. Further it is stated that the Collector of the District who heads the District Level Committee has recommended the case of the Petitioner and forwarded the same to the State Government along with all relevant material. The Petitioner''s grievance is that the application has not been properly considered and without application of mind to the Petitioner''s claim, the application has been kept idle on flimsy and for untenable reasons. Therefore, according to the Petitioner, the Respondents have failed to consider his claim under the beneficial scheme for grant of Freedom Fighters Pension in its true spirit. Petitioner further states that he has no one to look after him at the age of 91. He further states that he has no source of income and is suffering in penury. At present he has been attached with one Vallalar Muttam (mutt) Anupandi, Madurai and maintaining his life by taking a small quantity of Prasadham one time per day provided by the Muttam. Petitioner pleads that his life is in peril though he has rendered selfless service in the freedom struggle. Therefore, the Petitioner prays for a mandamus as stated above.
In the counter filed by the first Respondent it is stated that the claim for grant of Samman Pension can be considered by the Central Government only when it is duly verified and recommended by the concerned State Government on the basis of provisions of the scheme. Para 6 of the Scheme reads thus:
Persons who consider themselves eligible for Samman Pension under the Scheme should apply in duplicate on the prescribed application form. One form duly filled and supported by required documents as proof of claim of suffering should be sent to the Chief Secretary to the State Government/ Union Territory Administration concerned. The second copy should be sent to the Deputy Secretary to the Government of India, Freedom Fighters Division, Ministry of Home Affairs, First Floor, Lok Nayak Bhavan, New Delhi-3 as an advance copy
Para 10 of the Scheme states thus:
The claim of the Applicant will be scrutinised in the State Government/ Union Territory Administration in consultation with State Advisory Committee on the basis of copy of application submitted to them. After receipt of State verification and entitlement to pension report, the claim of the Applicant is scrutinised and if found eligible Pension is granted.... Applicants whose applications are not approved are duly informed.
Circular No. 8/25/77-FF(P), dated 12.8.1977 issued by the first Respondent states thus:
...it is again emphasised that no Central Pension should be sanctioned in future except on the basis of State Government''s verification and recommendation. In case no State Report has been received, the case should be referred to the State Government and finalized only on the basis of their specific recommendations.
(emphasis supplied)
In this regard the first Respondent relied upon the following decisions in its counter:
(1) W.P. No. 2257 of 2000 in Vasantrao Balaji Naladkar v. the State of Maharashtra and Ors., in which a Division Bench of Maharashtra High Court by order dated 14.6.2000 held thus:
Another aspect to be noted is that the mandatory verification report from the State Government was also not available in the case of the Petitioner. This definitely makes the case of the Petitioner doubtful so far as his sufferings are concerned...... The Writ Petition stands rejected in limine.
(2) W.P. No. 8629 of 2001 in Baldeo Prasad Azad v. the Union of India and Ors., in which the High Court of Patna by order dated 20.7.2001 held thus:
... Thus, this Court finds substance in the submission of the learned Senior Standing Counsel that if there is no report regarding entitlement to pension in favour of the Applicant and in the present case the Petitioner, the Central Government cannot even scrutinise the claim.
(3) Mukund Lal Bhandari and others Vs. Union of India and others, , in which the Apex Court held thus:
The Petitioners would undoubtedly be entitled to the benefit of the Scheme provided, of course, they produce the relevant material in support of their claim.
As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinise the documents which according to the Petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly.
the pension should, of course, be sanctioned only after the required proof is produced.
It is further stated in the counter that several factors have to be considered for the purpose of grant of Samman Pension under the Scheme and according to the scheme, a freedom fighter is:
(a) A person who had suffered minimum imprisonment of six months in the mainland jails before Independence. Ex-INA personal are also eligible for pension if the imprisonment/detention suffered by them was outside India for six months or more. In case of women and SC/ST freedom fighters, the minimum period of actual imprisonment for eligibility of pension is three months.
(b) A person who on account of his participation in freedom struggle remained underground for six months or more provided he was:
(i) a proclaimed offender; or
(ii) one on whom an award for arrest/head was announced; or
(iii) one whose detention order was issued but not served.
Voluntary underground suffering or self-exile for party work under the command of the party leaders is not covered as eligible sufferings for pension under the Scheme.
(c) A person who on account of participation in the freedom struggle was interned in his home or externed from his district under the orders of the competent authority for six months or more.
(d) A person whose property was confiscated or attached and sold due to participation in the National Freedom Struggle under the orders of the competent authority.
(e) A person who permanently incapacitated during firing or lathi charge.
(f) A person who lost his Government job (Central or State Government, including job in local bodies) and thus deprived means of livelihood for participation in the National Freedom Struggle.
(g) A person who was awarded the punishment of 10 strokes of caning/flogging/ whipping.
It is further stated in the counter that the Applicant should furnish the documents indicated below whichever is applicable, for grant of pension under Scheme:
(a) In case of imprisonment a certificate from the concerned jail authority, District Magistrate or the State Government, indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release. In case records of the relevant period are not available, a Nonavailability of records certificate (NARC) from the concerned authority along with to Co-Prisoners'' Certificate (Code of Civil Procedure ) from the freedom fighter pensioners who had a proven jail suffering of one year is required. In case the certifier happens to be a sitting MP or MLA or Ex MP/Ex MLA, only one Co-Prisoners'' Certificate in place of two is required.
(b) For claims of underground suffering, documentary evidence by way of Court''s/Government''s order proclaiming the Applicant as an offender, announcing an award on his head or for his arrest or ordering his detention. In the absence of such certificate from official records, a Non-availability of Records Certificate (NARC) from the concerned authorities alongwith a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who had undergone imprisonment for a period of at least two years or more is required.
(c) For claims of internment or externment, orders issued by the competent authority from the official records. In the absence of official records, a Non-Availability of Records Certificate (NARC) from the concerned authorities alongwith a certificate from prominent freedom fighters who had themselves undergone suffering of imprisonment for two years or more.
(d) In case of confiscation and sale of property, orders of dismissal or removal from service for taking part in the National Freedom Struggle, orders of the competent authority is required.
(e) For claims of permanent incapacitation:
(i) Certificate from the District Magistrate stating that permanent incapacitation was done by bullet injury/lathi charge sustained during participation in the National Freedom Struggle.
(ii) Medical certificate from the Civil Surgeon in support of the handicap.
(f) For claims of punishment of 10 strokes of caning/flogging/whipping, copies of orders passed by the competent authority from the official records.
(g) For claims of martyrdom, evidence from official records or news papers of the relevant time in support of killed in action or in detention etc.
It is further stated in the counter of the Central Government in paras 6, 7 and 8 as follows:
The NARC should not be general or vague and should conform to the instructions issued by the Government of India, Ministry of Home Affairs, including circular No. 8/12/95-FF(P) dated 7.6.1996 which was reiterated on 2.11.1998. The instruction, inter-alia, requires the State Governments to issue NARC only after due verification from all the sources. The NARC can be treated validly only when it is furnished in the following manner:
All concerned authorities of the State Government who could have relevant records in respect of the claim of the Applicant, have been consulted and it is confirmed that the official records of the relevant time are not available."
That as per provisions of the Swatantrata Sainik Samman Pension Scheme, 1980, the Applicant is required to send a copy of the application, alongwith the documentary evidences, in support of his claimed suffering, to the Ministry and the concerned State Government. The State Government is then required to scrutinise the application and send a verification and entitlement to pension report alongwith their specific recommendation to this Respondent Ministry, to enable consideration of the claim on merit and in ac-cordance with the provisions of the Scheme."
That in respect of claimed suffering of the Petitioner, the said application, mandatory verification-cum-entitlement to pension report and specific recommendation from the State Government has not been received in the Ministry as per records. Any further action in the matter can be taken only after receipt of the application and verification report and recommendation on it, from the State Government in this regard. In view of the submissions in para 2 above, being premature, no action is called for on the part this Respondent.
According to the first Respondent Ministry of Home Affairs, the application of the Petitioner has not been received with the mandatory verification-cum-entitlement to pension report and specific recommendation from the State Government has not been received by the first Respondent. Further action in this matter can be taken only after receipt of application and verification report and recommendation on it, from the State Government in this regard.
In the counter of the State Government it is stated that the Petitioner had applied for Swatanthra Sainik Samman Pension. After careful scrutiny of the application, it is found that the certificates furnished by the Petitioner did not have the vital information about his participation in freedom movement, viz., jail extract for his participation or co-prisoner''s certificate in the prescribed format or if he has evaded arrest, case number, section under which he was booked, date of admission and release, etc. Without these relevant details the application cannot be recommended for sanction of Swaiantrata Sainik Samman Pension by the Government of India. The Petitioner has stated that he was detained in Vellore Central Jail from 23.9.1943 to 23.3.1944 along with Thiru Mayandi Bharathi and submitted a certificate for the above period from him. He has also submitted a certificate for remaining underground from 1.4.1944 to 1.12.1944 from Thiru A.M. Lakshmana Maidu. The Co-prisoner Certificate from Thiru I. Mayandi Bharathi and the Personal Knowledge Certificate from Thiru A.N. Lakshman Naidu submitted by the Petitioner did not have the required details and jail certificate as per the Government of India guidelines for sanction of Swatantrata Sainik Samman Pension. Hence, by letter dated 4.3.1988, the Petitioner was requested to submit the following records for consideration of his case:
Duly filled up application with Applicant''s photograph.
Copy of jail certificates of Thiru I. Mayandi Bharathi.
Copy of Jail certificates of Thiru A.M. Lakshmana Naidu.
One more Co-prisoner Certificate.
Non-Availability of jail certificate from the Superintendent of Jail where the Applicant suffered imprisonment, if no jail certificate is furnished.
Any one of the Certificate for proof of age/Birth Certificate and if no Birth Certificate/educational certificate/copy of the electoral roll/extract of the ration card.
The Petitioner, however, states that he has submitted the extract of Jail records of Tvl. Mayandi Bharathi and A.M. Lakshman Naidu and other documents as required by the State Government.
It is further stated by the State Government in their counter that the Government of India has revised the earlier (prescribed format of) Affidavit, Co-prisoner Certificate and Personal Knowledge Certificate for grant of Swatanthra Sainik Samman Pension in their letter No. 8/6/98FF(P), Ministry of Home Affairs, dated 17.7.1988 and directed that the Applicants whose cases are pending for consideration with the State Government may be asked to furnish new affidavit and Co-prisoner or Personal Knowledge Certificate along with the recommendation of the State Government. Accordingly by letter dated 30.11.1988, the Petitioner was requested to submit Self-Affidavit, Personal Knowledge Certificate and Co-prisoner Certificate in the revised format along with the underground Certificate/date of issue of Warrant/Court Order to evade arrest and remain underground etc. But the Petitioner did not reply.
It was contended that the requirement for grant of pension have not been satisfied in the case of the Petitioner and several records have not been produced. Only in case of non-availability of such records, secondary evidences, as specified in the Scheme, can be made. The Government of India has directed the State Governments to exercise due care and caution in such cases in view of several instances of bogus/forged claims. The claims are verified from police station concerned, the District administration, the jurisdictional court, the competent authority issuing detention order, the advisory board/appellate Court, the prison authorities and the intelligence agencies. Discrete enquiry should also be made to ascertain genuineness of the claims. The NARC should be issued only after the above verification. The NARC should invariably be worded as follows:
All concerned authorities of the State Government who could have relevant records in respect of the claim of the "Applicant, have been consulted and it is confirmed that the official records of the relevant time are not available.
According to the Respondents 2 and 3, the Petitioner has not furnished the required documents as prescribed by Government of India. In the absence of acceptable documents from the Petitioner, the State Government is unable to consider his case or to recommend his claim to Government of India for sanction of Swatantrata Sainik Sam-man Pension. The Petitioner has not applied for State Freedom Fighters Pension for consideration of his case.
However, the stand of the State Government is refuted by the learned Counsel for the Petitioner and submitted that on the basis of the query raised by the State Government, all documents necessary for completing the application have been furnished and duly forwarded by the District Collector and the same is available on the file of the third Respondent District Collector, who is the head of the District Level Committee. Petitioner''s claim has not been processed and it is kept pending without any justification. If the State Government authorities are directed to consider the claim based on the recommendation of the District Level Committee, there will be no difficulty in recommending the Petitioner''s claim for grant of the pension by the first Respondent Central Government.
The Specific contention of Mr. K.M. Vijayakumar, learned Counsel appearing for the first Respondent is that based on the recommendation of the District Level Committee if the State Government forwarded its recommendation, the Petitioner''s claim can be considered. Further, he states that the State Government has forwarded the pension papers to the Central Government without its recommendation. If any direction is issued to the State Government to consider the claim of the Petitioner and make its recommendation to the Central Government, the Central Government will have no difficulty in proceeding further in the matter. He also submits that the District Level Committee headed by the District Collector has already recommended the case of the Petitioner favourably and the same has been forwarded to the State Government. He therefore, submits that if the said papers are forwarded to the Central Government with its recommendation as per the Scheme within a reasonable time fixed by this Court, the Petitioner''s claim can be considered.
Taking into consideration the stand of first Respondent in the counter-affidavit and the submission made by the learned Counsel for the first Respondent and the contention of the Additional Government Pleader appearing for the State Government and the District Collector, who submits that the District Level Committee has recommended the Petitioner''s case and the further submission of the Petitioner''s counsel that pursuant to the query raised by the State Government, all available documents have been submitted, this Court feels that it will be appropriate to direct the second Respondent to take up the matter immediately and process the papers based on the recommendation of the District Level Committee headed by the District Collector and submits its proposal to the first Respondent, the Central Government within two weeks from the date of receipt of copy of this order. If any document or particulars are required, the authority may address the Petitioner or his counsel to produce the same without any further delay. Learned Counsel Mr. K.M. Vi-jayakumar submits that on receipt of such recommendation from the State Government, the Central Government will take up the matter without any further delay.
Before proceeding the matter, the State Government as well as the Central Government shall keep in mind the object of the scheme and the observation of the Apex Court in the matter of grant of freedom fighter''s pension made in Gurdial Singh Vs. Union of India and Others, , which is as follows:
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 the 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 rational 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 Mukund Lal Bhandari Bhandari v. Union of India case observed:(SCC pp.7-8, para 9)(l993 Supp (3) SCC 2:
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. Ft 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 dependants. 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."
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 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 the Scheme had 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 touchstone 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.
Therefore, subject to any requirement as stated in para 12 above, the second Respondent is directed to consider the application and relevant documents pertaining to the Petitioner and pass appropriate proceedings in respect of the Petitioner''s claim for pension under the Swatantrata Sainik Sam-man Pension Scheme within two weeks from the date of receipt of a copy of this order and forward its recommendation to the first Respondent if it is in order. The first Respondent shall pass appropriate orders on its own merits within two weeks thereafter. Though it is not advisable to grant longer time in such matters, this Court feels that considering the age of Petitioner said to about 91 years and the health condition of the patenter as stated by the learned Counsel for the Petitioner, the authorities shall keep in mind that the claim if granted it should be done in time of need. It is made clear that this order does not bar the State Government from proceeding with the claim of the Petitioner for grant of State Government Pension pursuant to the application dated 10.11.2006 submitted by the Petitioner the report of the District Collector may be called for in this regard.
The writ petition is ordered accordingly No costs.