The Union of India vs R. Murugamalai

M. Sathyanarayanan, J.—The official respondent in W.P. No. 10646/2011, is the appellant and aggrieved by the final order dated 31.1.2012, made in the above said writ petition, by and under which, a Single Bench of this Court has ordered the writ petition with a direction to the appellant, who was arrayed as respondent in the said writ petition, to pay the arrears of pension to the respondent/writ petitioner from the date of review application i.e., 1.11.1986, within a stipulated time, has filed this writ appeal. In the affidavit filed in support of the writ petition, the respondent/writ petitioner averred among other things, that he is a Freedom Fighter and an arrest warrant was pending against him during the Quit India Movement and he successfully evaded arrest and remained underground from 1942 to 1944. The writ petitioner has also applied for pension under Swathanthira Sainik Samman Pension Scheme, 1980, vide application dated 12.8.1981, and along with his application, he enclosed two certificates given by Tvl. A.B. Nagier and A.M. Lakshmanan, certifying that the writ petitioner remained underground between 1942 and 1944 apprehending arrest by the British Police for his active participation in the Freedom Movement including Quit India Movement. The said application was rejected by the appellant/respondent in the writ petition, vide order dated 28.2.1983, on the ground that he failed to produce any acceptable documentary evidence relating to his sufferings and the writ petitioner submitted a review application on 1.11.1986, enclosing a certificate given by Thiru Gangadhara Parasuram, certifying that he remained underground for about three years on the ground of apprehension of arrest at the hands of British Police. Since no order was passed, he came forward to file W.P. No. 17403/2009 and a Single Bench of this Court disposed of the said writ petition vide order dated 4.8.2010, with a direction to the appellant herein to consider the review application made by the petitioner on 1.11.1986, and pass appropriate orders relating to grant of pension under the above said Scheme, in the light of the observations made in the writ petition, within a stipulated time. Though such pension was sanctioned from 4.8.2010, arrears was not paid from the date of review application, and the respondent/writ petitioner again came forward to file the above said writ petition.

It was contended by the respondent in the earlier writ petition/appellant herein that since the required certificates have not been produced, the earlier order of rejection came to be passed and as and when the writ petitioner produces the certificate, his case will be considered in accordance with the above said Scheme.

A Single Bench of this Court while considering the case of the respondent/writ petitioner in W.P. No. 17403/2009, has taken into consideration the relevant provisions especially Clause 9(b) of the Scheme, and after taking into consideration the certificates issued by Tvl. A.B. Nagier and A.M. Lakshmanan, and also another certificate issued by Thiru Gangadhara Parasuram, stating that he has undergone actual imprisonment for more than five years during the freedom struggle and was lodged in various jails, and yet another certificate issued by Dr. T. Kannan, another Freedom Fighter, who was also imprisoned for more than five years, has found that note to Clause 9 could not be given such a restricted meaning, particularly, when a person, who remained underground, could migrate from one area to another area, in order to evade arrest and has given a positive direction to the respondent/appellant herein to consider the review application in the light of the positive observation made in the writ petition, and pass appropriate orders within a stipulated time. Subsequently, the respondent/appellant herein granted the relief of pension only from the date of order in the earlier writ petition viz. 4.8.2010. Aggrieved by the same, the respondent/writ petitioner filed the present writ petition seeking payment of arrears of Freedom Fighters'' Pension under the Scheme, from the date of review application and the learned Single Judge after taking into consideration the order of this Court made in the earlier writ petition, directed the respondent/appellant herein to pay the arrears from the date of review application within a stipulated time and hence this appeal.

The learned Senior Central Government Standing Counsel appearing for the appellant/official respondent, would submit that admittedly, the writ petitioner/respondent herein did not suffer any imprisonment and though he has produced number of certificates to the effect that he remained underground, it is only a case of doubtful nature and the appellant/respondent in the writ petition, in compliance of the order passed in the above said writ petition, passed an order dated 22.10.2010, granting pension under the above said Scheme with effect from 4.8.2010. The writ petitioner aggrieved by the fact that pension was not sanctioned from the date of review application, came forward to file the present writ petition, which was ordered by the learned Single Judge. The learned Senior Central Government Standing Counsel appearing for the appellant, has further contended that though the writ petitioner has produced number of certificates, it can be termed only as doubtful in nature, and in that event, it is open to the appellant herein to grant pension from the date of the order passed in the earlier writ petition, and has also drawn the attention of this Court to the relevant documents filed in the typed-set of papers.

Per contra, the learned Counsel appearing for the respondent/writ petitioner, would submit that in the order dated 4.8.2010, passed in W.P. No. 17403/2009, the learned Single Judge has not recorded the fact that it is a case of doubtful nature and on a threadbare analysis of the pleadings and documents, has given a positive finding, thereby issuing a direction to the respondent therein/appellant herein to grant pension by considering the review application and therefore, would submit that the writ petitioner is entitled to get pension from the date of review application.

This Court, on a careful scrutiny of the materials and upon consideration of rival submissions, is of the view that the writ appeal is liable to be dismissed for the following reasons.

As rightly contended by the learned Counsel appearing for the respondent/writ petitioner, in the order dated 4.8.2010, made in W.P. No. 17403/2009, the learned Single Judge has not recorded any finding to the effect that it is a case of doubtful nature and in fact, has given a positive finding that the case of the petitioner that he remained underground is substantiated by the certificates given by number of Freedom Fighters, and directed the official respondent to consider the review application in terms of the positive finding given therein. The learned Senior Central Government Standing Counsel has not produced any materials to substantiate her submission that it is a case of doubtful nature and in fact, the order dated 22.10.2010, granting pension in compliance of the order passed in W.P. No. 17403/2009, with effect from 4.8.2010, would also disclose that nothing has been stated about the doubtful nature of the claim made by the writ petitioner.

This Court has also perused the Certificate of Suffering for Abscondence/Internment/Externment given by Thiru Parasuram Gandharam and it would disclose that he was granted Central Freedom Fighters Pension vide order in No. FF. P.O. 29/1/general/FF. Division dated 31.7.1972, passed by the Ministry of Home Affairs, based on the fact that he was imprisoned in Bellary (Alipuram Camp Jail) between 28.12.1942 and 30.3.1946. Since the veracity of the said certificate has also been not doubted, this Court is of the considered view that there is no error or infirmity in the findings recorded by the learned Single Judge, and finds no merit in this writ appeal. For the above reasons, this writ appeal is dismissed and the respondent/writ petitioner is entitled to arrears of pension from the date of review application as ordered by the learned Single Judge. Considering the age of the respondent/writ petitioner viz. 87 years, the appellant is granted six weeks'' time from the date of receipt of copy of this order, to complete the said exercise. No costs. Consequently, connected MP is also dismissed.