Beohar High Court
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR HIGH COURT OF CHHATTISGARH AT BILASPUR AFR WPC No. 1037 of 2014 Order Reserved on 26.11.2024 Order Delivered on 07.02.2025 1 - Smt.Kasturi Sharma W/o Late Surendra Sharma Aged About 67 Years R/o Brahman Para, Near Sohaga, Mandir, Raipur C.G. versus ... Petitioner 1 - Union Of India Through The Secretary Department Of Home Affairs Lok Nayak Bhawan, Khan Market, Post And P.S. Khan Market Delhi-3, 2 - The State Of Chhattisgarh Through The Chief Secrtary, Mahanadi Bhawan, Mantralaya, Post And P.S. Mandir Hasaud Raipur C.G. 3 - The Collector Collectorate, Post And P.S. Gol Bazar, Raipur C.G. , ... Respondents For Petitioner : For Respondent No.1 : For State/respondents : No.2 & 3 Mr. Aniket Verma, Advocate on behalf of Mr. Jitendra Pali, Advocate Ms. Anmol Sharma, Advocate Mr. S.S. Baghel, Dy. G.A. 2 Hon'ble Shri Justice Amitendra Kishore Prasad CAV Order 1. The petitioner, who is a widow of a Freedom Fighter, has filed this writ petition for the inaction and apathy on the part of the respondent authorities who are not deciding the claim of the petitioner for grant of Central Pension in respect of her husband who was a Freedom Fighter and took part in the “Quit India Movement” in 1942. The husband of the petitioner was also a member of ‘Hindustan Red Army’ and was arrested in the said Movement. During the lifetime of the husband of the petitioner, he himself has applied for grant of Central Pension to him, however, when the same was not granted, the late husband of the petitioner has filed a writ petition bearing WPC No. 1956/2002 in which the respondent authorities have marked their appearance and have filed their return, however, subsequently it was dismissed for want of prosecution on 04.11.2008 as the husband of the petitioner expired on 10.08.2005. The present petitioner was not aware about pendency of the said writ petition filed by her husband. Subsequently, when she came to know about the dismissal of the said writ petition in default in the year 2012, she moved an application for restoration of the same i.e. writ petition No.1956/2002, however, her application for restoration was disposed off while granting liberty to the petitioner to take 3 appropriate steps. As such, present petition is filed by the petitioner. 2. The petitioner, in the present petition, has claimed for following reliefs:- “10.1 To kindly call for the records of the case from the respondents. 10.2 To kindly direct the respondent Union of India to forthwith grant Central Pension of Freedom Fighter to the petitioner and after declaring the husband of the petitioner namely Late Surendra Sharma as Freedom Fighter. 10.3 To kindly make any other order that may be deemed fit and just in the facts and circumstances of the case including awarding of the costs to the petitioner.”
Legal Reasoning
bearing No.1956/2002 before this Court in which notices were issued and accordingly, the concerned respondents have filed their return. But in the meanwhile, on 10.08.2005, the husband of the petitioner expired and as such, the matter was dismissed for want of prosecution on 04.11.2008. The said fact could not came into knowledge of the present petitioner as entire affairs regarding pension were being conducted and looked after by her husband late Shri Surendra Sharma himself. Subsequently, in the year 2012, the petitioner came to know about filing of the writ petition by her late husband and dismissal of the same for 7 want of prosecution, she made an appropriate application for restoration of the same, however instead of restoration, this Court granted liberty to her to file a separate writ petition. Accordingly, the present writ petition has been filed. 6. Learned counsel for the petitioner further submits that there are various grounds to hold that the husband of the petitioner was a Freedom Fighter and he is entitled for grant of Central Pension, however, without any cogent reasons, the ‘Freedom Fighters’ pension was not granted to the petitioner for the contribution given by her husband. He submits that there are no legal impediments in granting Freedom Fighters pension. He relies on the judgment passed by the Delhi High Court in the matter of Union of India & Anr. vs. Dev Narayan Mishra reported in 2018 SCC OnLine Del 12833 as also the judgment passed by the Division Bench of Madras High Court (Madurai Bench) in the matter of The Government of Tamil Nadu & Anr. vs. Krishnasamy in WA (MD) No.351/2018 and submits that the present petition deserves to be allowed in light of facts of the case as also on the basis of aforesaid judgments, which are akin to the present case. 7. On the other hand, learned State counsel submits that on the basis of averments made by counsel for the petitioner himself, the husband of the petitioner was minor aged about 12 years at the time of freedom fighting movement from the year 1942-43, 8 as such, he cannot be considered as Freedom Fighter. There are insufficient documents, from which, it cannot be presumed that the husband of the petitioner was a Freedom Fighter. As such, there is no illegality in refusing to grant Central Pension to the husband of the petitioner. The documents appended with the petition does not reveal that the husband of the petitioner was a Freedom Fighter and his name is recommended for reward by the concerned Police. From the petition as framed by the petitioner, no relief can be granted to the petitioner, as, by the efflux of time also, the reliefs as claimed by the petitioner has become redundant. The petition is devoid of merits and the same is liable to be dismissed. 8. I have heard learned counsel for the petitioner, learned State counsel as well as counsel for the respondent- Union of India. I have also perused the documents annexed with the petition with utmost circumspection. 9. The Division Bench of Madras High Court (Madurai Bench) in the matter of The Government of Tamil Nadu & Anr. (Supra) has held in paras 3 & 5, which read as under:- 3.Admittedly, the Freedom Fighters Pension 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 9 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 concerned authorities 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. 5. In yet another case in State of Madhya Pradesh Vs. Devkinandan Maheshwari, the Supreme Court recognised a boy of 12 years who had gone underground for participating in the freedom movement as a "Freedom fighter" and directed the authorities to grant freedom fighters pension to him. 10. The Delhi High Court in the matter of Union Of India & Anr. (Supra) has held in paras 23, 24 & 25, which read as under:- “23. The argument on behalf of the appellant that Sh. Bhagirath Jha could not have issued a valid certificate in favour of the appellant as he himself was undergoing imprisonment from 1942 to 1946 and cannot be the sole ground rejecting the claim of the respondent for grant of freedom fighters pension 10 as there is no reason to doubt the certificate produced on record on behalf of Sh. Bhagirath Jha. 24. In the present case, the respondent fulfills the conditions as stated in the SSSP Scheme for the grant of pension and it is also a settled proposition of law that the court shall not adopt a hyper- technical approach while dealing with the case of freedom fighter and that the basic objective of the scheme is to honour and benefit the kith and kin of the freedom fighters. In the case of Gurdial Singh v. Union of India reported in (2001) 8 SCC 8, the court has placed reliance in the case of Mukund Lal Bhandari v. Union of India [1993 Supp (3) SCC 2] and held that:- 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 exception 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 the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in 11 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) 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. 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 12 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 of 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." 25. Having regard to the aforesaid law and the facts and circumstances of the present case, it is observed by this court that the necessary condition required to grant pension under the SSSP Scheme stands fulfilled and the discrepancies as adhered by the appellant cannot be held to be material which could be made a premise for depriving the 13 respondent of his right to get pension. The standard of proof required in such cases is not as required in criminal cases and once on the basis of evidence it is probable that the respondent had suffered imprisonment during freedom struggle, a presumption is required to be drawn in his favour.” 11. Before delving into the contentions raised by the counsels for the parties, it is relevant to produce and peruse the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as SSSP Scheme) issued by the Government of India in the year 1980. The SSSP Scheme is a Central Government Scheme for the grant of pension to Freedom Fighters and their families from Central Revenues which was introduced by the Government of India to extend the benefit of pension to all the Freedom Fighters as a token of respect to them. The Scheme clearly specifies the persons who are eligible for the purpose of grant of pension under the Scheme. The Scheme lays down the eligibility of the persons who can claim pension under the Act. Relevant paras of the Scheme is re-produced hereinbelow:- "2.3 Underground:- A person who on account of his participation in freedom struggle remained underground for more than six months provided he was; A. a proclaimed offender; or B. one on whom an award for arrest was announced; or 14 C. one for whose detention, order was issued but not served. Explanation: Voluntary underground suffering or self-exile suffering for party work under command of the party leaders, are not covered as eligible sufferings for pension under the Central Scheme. The claim of underground suffering is considered subject to furnishing of the following evidence:- (i) Documentary evidence by way of Courts/Govts orders proclaiming the applicant as an absconder, announcing an award on his head or for his arrest or ordering his detention. Or (ii) Where records of the relevant period are not available, a non-availability of records certificate (NARC) from the concerned State/Union territory Administration along with a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be from the same administrative unit." As per Swatantrata Sainik Samman Pension Scheme, 1980, the claim of "Underground Suffering" is considered subject to furnishing of the following evidence:- "(i) Primary evidence: Documentary evidence by way of court's/Government's order proclaiming the applicant as an absconder, announcing an award on his head or for his arrest 15 or ordering his detention. Absconsion on issue of warrant of arrest is not an eligible suffering for grant of SSS pension, unless the same is followed by the order of proclaimed offender/or award for arrest on head or detention order. (ii) Secondary evidence: In the absence of primary record-based evidence, a non-availability of Records Certificate (NARC) from the con Non- Availabilityvernment/Union Territory Administration along with a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum of two years and who happened to be from the same administrative District can be submitted as supporting evidence to the claim." Where primary evidence viz. records of the relevant period are not available, 'Non-' Availability of Record Certificate (NARC)' from the concerned authority, in the form of secondary evidence becomes a pre- requisite for claiming "underground suffering". 12. The SSSP Scheme, 1980 is a document based Scheme and the documents required for eligibility for Samman Pension as mentioned in the Scheme are to be produced by the applicant in support of his claimed suffering, duly verified and recommended by the concerned State Government. Reading of the above mentioned clause as per the SSSP Scheme shows that for a person to be eligible for pension under the Scheme, he should have remained underground for the period of more than six 16 months during the freedom struggle for the reason of being Proclaimed Offender or one on whom an award for arrest on his head was announced or one for whose detention, order was issued but not served. In order to prove the same, the Scheme further requires 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 and in the absence of such primary evidence, a Non Availability of Records Certificate (NARC) is required to be produced from the concerned State Government/Union Territory Administration, along with a Personal Knowledge Certificate (PKC) from a Freedom Fighter who has proven jail suffering for a minimum period of two years belonging to the same Administrative District. If the said conditions are not complied with, then the Central Government shall not consider a claim for such pension. 13. After perusal of the record and considering the submissions advanced by the petitioner, it seems that there is no dispute infact that the husband of the petitioner was a Freedom Fighter and was involved in the various freedom fighting activities. It is also not disputed by the respondents that the husband of the petitioner was not a member of ‘Hindustan Red Army’. It seems that the husband of the petitioner had participated in the freedom fight movement, when he was in Class 7 and was aged about 12 17 years. Though, he was a minor but due to his active participation in the freedom fight movement, he was kept behind bars for several occasions on 21.01.1943 ; he was also a Member of ‘Hindustan Red Army’ and he along with other Freedom Fighters unfurled Indian National Flag, at Nagpur Secretariat, whereby has got injuries in lathi charge, due to strict Police actions and also he was remained underground for the period from 20.08.1942 to 03.03.1943. 14. All these goes to show that the husband of the petitioner namely Late Shri Surendra Sharma had actively participated in the Freedom Fight Movement and his active participation has been confirmed by the Members of the Movement, to whom the husband of the petitioner was associated. The fact that the husband of the petitioner was minor at the time of Movement, as such, the husband of the petitioner is required to be considered as the Freedom Fighter, the same issue has been dealt by The Government of Tamil Nadu & Anr. (Supra) and a similar issue has also been decided by the Hon’ble Supreme Court in the matter of State of Madhya Pradesh vs. Devkinandan Maheshwari reported in AIR 2003 SC 1136 wherein a boy of 12 years who had gone underground for participating in the freedom movement as a Freedom Fighter and the Court directed the respondent authorities to grant Freedom Fighters Pension to him. As such, the ground raised by the respondent authorities for 18 denying Freedom Fighters Pension to the husband of the petitioner fails and I am fortified with the judgments passed by the Hon’ble Supreme Court as well as by the Madras High Court & Delhi High Court that minor Freedom Fighters can also be entitled to get Freedom Fighters Pension. 15. So far as the proof regarding freedom fight is concerned, as discussed above, there are ample documents in the shape of evidence which can be relied on and from the perusal of these documents as well as the certificates issued by the persons who were associated along with the husband of the petitioner in the said freedom fight movement, this Court do not found any good ground to deny the Freedom Fighter’s Pension to the husband of the petitioner and accordingly, this Court finds that the husband of the petitioner namely Late Shri Surendra Sharma was a Freedom Fighter and he was entitled to get the Freedom Fighter’s Pension as per MP Swatantra Sangram Sainik Samman Nidhi Niyam, 1972. It is important to mention the fact here that Late Shri Surendra Sharma himself has filed an application for grant of Freedom Fighter’s Pension, however, during his lifetime, it cannot be given on the basis of one or another reasons mentioned by the respondent authorities in order to deny his pension and now, the wife of the Freedom Fighter is seeking the same. 19 16. Therefore, looking to the overall facts and circumstances of the case, this Court is of the opinion that the petitioner is entitled to get the Freedom Fighters Pension on behalf of her husband Late Shri Surendra Sharma. Accordingly, the respondent authorities are directed to grant said pension to the petitioner on behalf of her husband Late Shri Surendra Sharma and the exercise to this effect be done within a period of 3 months.
Arguments
3. It has been submitted by learned counsel for the petitioner that the husband of the petitioner namely Late Shri Surendra Sharma, was a Freedom Fighter and has taken active part during the freedom fight struggle, as also, he participated in the “Quit India Movement” along with other participants namely Shri Maganlal Bagdi, Shyam Narayan Kashmiri & Shyamlal Nai. The husband of the petitioner happens to be a member of ‘Hindustan Red Army’ who were very active against the British Government. Due to their activities, the British Government has declared rewards for their arrest and those rewards were recorded in Sessions Trial No.37/1944 in the record-sheet dated 4 10.08.1942. The Co-Freedom Fighter namely Maganlal Bagdi has also issued a certificate in this respect vide circular dated 20.01.1983 stating that the late husband of the petitioner namely Surendra Sharma was an active member during the freedom fighting movement. The husband of the petitioner along with other Freedom Fighters have unfurled Tricolour on the Secretariat Building at Nagpur (the capital of the then C.P. and Barar). 4. It is stated that due to aforesaid acts and also due to the police activities, the husband of the petitioner had gone underground for a period of about one year commencing from 20.08.1942 to 03.03.1943. This fact had been confirmed by another Freedom Fighter namely Shri Satya Narayan Sharma, The Government of Madhya Pradesh also published a book known as ‘The Freedom Fighters of Madhya Pradesh’ in which Part-III relates to activities of the freedom fighters of Raipur, Bilaspur and Bastar Division. In the said book, in the categorical terms, it has been written that at the age of 12, 13 & 14 years, several minors have participated in the freedom fight. All the aforesaid goes to show that the husband of the petitioner was a Freedom Fighter and he actively participated in the Freedom Fight Movement and Quit India Movement. He was a member of ‘Hindustan Red Army’ and as such, he is entitled to get benefit of Central Pension granted to Freedom Fighters. The erstwhile 5 State of Madhya Pradesh has taken a decision vide letter dated F1-309/94/1/13 dated 13.05.1997 by which the Collector, Raipur was directed to issue an Identity Card in the name of husband of the petitioner and he was further directed to include the name of the husband of the petitioner in the list of Freedom Fighters maintained in the Collectorate, Raipur, M.P. (Now C.G.). The then State of Madhya Pradesh has considered the husband of the petitioner as “Freedom Fighter” under Rule-1(b)(viii) of the MP Swatantra Sangram Sainik Samman Nidhi Niyam, 1972. In light of the aforesaid letter, the concerned Collector had included the name of the husband of the petitioner at Serial No.191/121 in the District list of Freedom Fighters and vide its letter dated 19.11.1997, recommended the name of the husband of the petitioner for grant of Central Pension. The husband of the petitioner has also tried his level best to get the said pension and has moved an application duly recommended by Shri Maganlal Bagdi, the credential of whom was never in dispute. Since, there was sufficient proof in respect of husband of the petitioner for entitling him for grant of Freedom Fighters Pension (Samman Nidhi), as such, he was waiting for grant of the same during the aforesaid period and has moved an application to the effect way back in the year 1984 duly recommended by other Freedom Fighters like Shri Maganlal Bagdi. 5. It is further submitted that the application so submitted was 6 rejected and the Central Government informed that in the letter of reward issued by Superintendent of Police Nagpur, the name of the husband of the petitioner does not find place. However, the authorities have failed to consider this fact that as the husband of the petitioner was minor at that time, aged about 12 years, it would be not possible for the authorities to include his name in the reward list. However, upon representation filed by the husband of the petitioner way back on 23.10.2001, in which he has made averments as how husband of the petitioner is entitled for Central Pension, the application was recommended by the then Minister of the State for Chemicals and Fertilizers, however, when it has not been given to the husband of the petitioner, the husband of the petitioner has filed a writ petition
Decision
17. Accordingly, the writ petition stands allowed. Sd/- (Amitendra Kishore Prasad) Judge Vishakha