G.Kalyanasundaram... v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.03.2009CORAMTHE HONOURABLE Mr. JUSTICE S.NAGAMUTHUWrit Petition No.9740 of 2008 andM.P.Nos.1 & 2 of 2008 G.Kalyanasundaram... Petitioner Vs.1.Union of India, represented byThe Secretary to Government of India,Ministry of Home Affairs Freedom Fighters,Division I Floor, Lok Nayak Bhavan,New Delhi.2.The Under Secretary to Government of India,Ministry of Home Affairs,Griah Mantralaya,Freedom Fighters Division,Lok Nayak Bhavan,New Delhi – 11.3.The Secretary to GovernmentPublic Department (PP-1),Fort St. George,Chennai – 600 009.... Respondents Writ petition has been filed under Article 226 of TheConstitution of India to issue a Writ of Certiorarified Mandamuscalling for the records of the second respondent in F.No.29/41/2005-FF (INA), Government of India/Bharat Sarkat, Ministry of Home Affairsdated 07.02.2006 and quash the same as null and void and against theprinciple of natural justice and consequently direct the respondentsherein to sanction the pension of Swantantrata Sainik Samman PensionScheme 1980 with reference to the representation dated 09.03.2006pending before the first respondent. For Petitioner : Mr.G.ThangavelFor R.3 : Mrs.Malarvizhi Udhayakumar Special Government PleaderFor R.1 & 2 : Mr.Devadass, CGC https://hcservices.ecourts.gov.in/hcservices/ O R D E RAn octogenarian, a freedom fighter, whose request for pension,under the "Swantantrata Sainik Samman Pension Scheme 1980", has beenrejected by the Central Government, is before this Court with thiswrit petition, challenging the same.2.The Government of India, during the silver jubilee year ofindependence, introduced a pension scheme known as "SwantantrataSainik Samman Pension Scheme 1980" for freedom fighters w.e.f15.08.1972. A freedom fighter who claims jail sufferings for sixmonths or more, is eligible for grant of the said pension onproduction of the following evidence:-"Imprisonment Suffering:(a) Primary evidence:- Imprisonment/detentioncertificate from the concerned jail authority,District Magistrate or the State Governmentindicating the period of sentence awarded, date ofadmission, date of release, facts of the case andreasons for release.(b)In case official records of the relevantperiod are not available, the secondary evidencein the form of 2 co-prisoner certificate (CPC)from Central Freedom Fighter Pensioners who haveproven jail suffering for a minimum of one yearand who were with the applicant in the same jail,could be considered provided the StatementGovernment/Union Territory Administrationconcerned, after due verification of the claim andits genuineness, certifies that documentaryevidence from official recorded in support of theclaimed sufferings were not available. In case thecertifier happens to be a sitting or Ex MP/MLA,only one certificate in place of the two isrequired. IN the case of persons belonging to INAcategory, only one CPC is required."3.The petitioner claims that he served in the Indian NationalArmy during the freedom struggle between the year 1943 and 1945. Hewas arrested by English Force in Singapore and he was imprisoned inthe 'Biddari Detention Camp' for the period from 15th August 1945 tothe end of February 1946. One Mr.Kuppusamy, a similar freedom fighterand a member of Indian National Army was also imprisoned in the sameprison along with the petitioner between 15th August 1945 to 20th April1946. Indisputably, the petitioner was granted freedom fighterpension by the Government of Tamil Nadu accepting the claim made bythe petitioner in the year *1997 onwards. While so, seeking pension https://hcservices.ecourts.gov.in/hcservices/ under the above Central Government scheme, the petitioner made anapplication. The District Collector, Thiruvarur District, submitted areport to the State Government along with the report of the Districtlevel Screening Committee recommending for pension to the petitionerunder the central Scheme. The said reports conclude that thepetitioner is a freedom fighter and he was imprisoned for more thansix months during the freedom struggle. Based on the said report ofthe District Collector dated 03.10.2005, in letterNo.Na.Ka.24397/2005 H.3, the Government of Tamil Nadu recommended tothe Government of India to consider the request of the petitioner forsanction of 'Swantantrata Sainik Samman Pension'. The petitioner hadalso submitted an affidavit of the co-prisoner, Mr.Kuppusamy, whereinMr.Kuppusamy had stated that the petitioner was imprisoned along withhim during the freedom struggle between 15th August 1945 and the endof February 1946. One Mr.Rethinasamy, yet another co-prisoner withthe petitioner, has also sworn an affidavit. 4.On considering the recommendation of the State Government andthe above documents, the first respondent by his proceedings inF.No.29/41/2005-FF (INA) Government of India/Bharat Sarkar Ministryof Home Affairs dated 07.02.2006 rejected the claim of thepetitioner. The petitioner challenges the same in this writ petition.5.A perusal of the impugned order would go to show that the claimof the petitioner was rejected since the Certifier namely,Mr.Kuppusamy had undergone imprisonment only for seven months andso, his certificate cannot be considered as according to the Scheme,such Certifier should have undergone imprisonment for a period of oneyear or more. 6.The learned counsel for the petitioner would submit that thesaid stand taken by the first respondent is against the very objectof the scheme. According to him, the claim of a freedom fightercannot be rejected on such a technical ground instead, thecertificate issued by the co-prisoner in the instant case should havebeen accepted by the first respondent. He would further submit thatwhen the State Government has granted freedom fighters pensionholding that the petitioner is a freedom fighter, it is not at allfair on the part of the respondents to reject the claim of thepetitioner.7.A detailed counter has been filed by the respondents 1 and 2,wherein, inter alia, reiterating the stand that the petitioner's casewas rejected because the Certifier does not satisfy the requirementof the Scheme namely, minimum imprisonment of one year during freedomstruggle.8.I have considered the rival submissions. https://hcservices.ecourts.gov.in/hcservices/

9.In Gurdial Singh v. Union of India (2001 (8) SCC 8), theHon'ble Supreme Court while dealing with an identical situation, inrespect of a claim of the freedom fighter under the Scheme inparagraph Nos.6 & 7 has held as follows:-"The Scheme was introduced with the object ofproviding grant of pension to living freedomfighters and their families and to the families ofmartyrs. Millions of masses of the country hadparticipated in the freedom struggle without anyexpectation of grant of any Scheme at the relevanttime. Moreover, in the partition of the countrymost of the citizens who suffered imprisonmentwere handicapped to get the relevant record fromthe jails where they had suffered imprisonment.The problem of getting the record from a foreigncountry is very cumbersome and expensive.Therefore, in appreciating the Scheme for thebenefit of freedom fighters a rational and not atechnical approach is required to be adopted. Itis also to be kept in mind that the claimantsunder the Scheme are supposed to be such personswho had given the best part of their life for thecountry.The standard of proof required in such casesis not such standard which is required in acriminal case or in a case adjudicated upon rivalcontentions or evidence of the parties. The caseof the claimants under the Scheme is required tobe determined on the basis of the probabilitiesand not on the touchstone of the test of "beyondreasonable doubt". Once on the basis of theevidence it is probabilised that the claimant hadsuffered imprisonment for the cause of the countryand during the freedom struggle, a presumption isrequired to be drawn in his favour unless the sameis rebutted by cogent, reasonable and reliableevidence."10.Following the said judgment, a learned single Judge of thisCourt in K.Appanraj v. The Secretary to Government of India & Others(2004 Writ L.R 606) has held as follows:-"7.The standard of proof required in suchcases is not such standard which is required in acriminal case or in a case adjudicated upon rivalcontentions or evidence of the parties. As theobject of the Scheme is to honour and to mitigatethe sufferings of those who had given their allfor the country, a liberal and not a technical https://hcservices.ecourts.gov.in/hcservices/ approach is required to be followed whiledetermining the merits of the case of a personseeking pension under the Scheme. It should not beforgotten that the persons intended to be coveredby the Scheme had suffered for the country abouthalf-a-century back and had not expected to berewarded for the imprisonment suffered by them.Once the country has decided to honour suchfreedom fighters, the bureaucrats entrusted withthe job of examining the cases of such freedomfighters are expected to keep in mind the purposeand object of the Scheme. The case of theclaimants under this Scheme is required to bedetermined on the basis of the probabilities andnot on the touchstone of the test of "beyondreasonable doubt". Once on the basis of theevidence it is probabilised that the claimant hadsuffered imprisonment for the cause of the countryand during the freedom struggle, a presumption isrequired to be drawn in his favour unless the sameis rebutted by cogent, reasonable and reliableevidence."11.Applying the principles laid down by the Hon'ble Supreme Courtand followed by this Court in the above judgments, if the facts ofthe present case are analysed, I am of the view that the rejection ofthe claim of the petitioner is not at all correct. As observed by theHon'ble Supreme Court, if the object of the Scheme providing grant ofpension to the freedom fighters is kept in mind, certainly it wouldemerge that demanding a certificate from a co-prisoner who hascompleted at least one year of imprisonment would not be rational atall. At this length of time, it would be impossible for thepetitioner to search for some other co-prisoner who would havecompleted one year of imprisonment. Demanding such a certificate,which is impossible, cannot be countenanced at all. Admittedly,Mr.Kuppusamy, the Certifier has been granted pension under the Schemeby the Government of India accepting his claim that he was imprisonedduring freedom struggle. When that be so, hardly, I find any reasonto disbelieve the statement of such a respectable freedom fighter,who fought for the freedom of this great nation. Treating a freedomfighter who is now an octogenarian in a different manner directinghim to run from pillar to post for a certificate from a co-prisonerwho was imprisoned for more than one year would be only belittlingthe great services rendered for the freedom of this country. Grantingpension to a freedom fighter is the privilege of the Government tohonour the freedom fighter and such honour should be extendedvoluntarily without relying on unnecessary technicalities.12.Indisputedly, accepting the claim of the petitioner, the StateGovernment has granted freedom fighters pension to the petitioner https://hcservices.ecourts.gov.in/hcservices/ vide pension order dated *9.4.1997. A Division Bench of this Court inR.Thangavelu v. The Government of India, rep. by its Secretary,Ministry of Home Affairs and another (1994 Writ L.W 137) afterconsidering various Schemes of the Central and State Government, hasformulated guidelines to be considered while granting pension. Suchguide lines are thus:-"The Government should also take intoaccount the book published by them under thetitle "Who is Who" containing the names offreedom fighters and act upon the same. Equally,when once the Central Government grants thepension after satisfying themselves about thefulfillment of the conditions stipulated in theScheme, it will not be fair for the StateGovernment to reject the claim of the StatePension. Similarly, if the State Governmentgrants pension to a freedom fighter, the sameshould be accepted by the Central Government andno further proof should be insisted upon. Inother words, once either the State Government orthe Central Government grants pension to aparticular freedom fighter, he must automaticallyget the other pension either under the State orunder the Central Government scheme without anyfurther enquiry, on the claimants satisfying theguidelines, and the Government cannot reject theclaim summarily that he is not a freedom fighterat all. Further, when once Tamara Patra has beengranted recognising the valuable servicesrendered during freedom struggle, the concernedGovernment should automatically grant pensionwithout any further enquiry or proof."13.Following the above judgment, the Hon'ble Mr.JusticeP.Sathasivam, (as he then was) in W.P.No.36113 of 2003 by order dated29.12.2003, while allowing the writ petition, directing the CentralGovernment to grant pension under the Central Scheme has observed asfollows:-"7.Among the conditions, it is relevant tonote that if the State Government grants pensionto a freedom fighter, the same should be acceptedby the Central Government and no further proofshould be insisted upon. The said decision of theDivision Bench has become final. As a matter offact, based on the Division Bench decision,several orders have been passed by this Courtdirecting both Central and State Governments topass orders in accordance with the guidelines https://hcservices.ecourts.gov.in/hcservices/ prescribed above. The said decision is directlyapplicable to the case of the petitioner."14.As I have already stated, the petitioner was granted freedomfighters pension by the State Government as early as in the year*1997 itself. When that be so, as held by the Division Bench of thisCourt and later on followed in many judgments of this Court, therespondent is bound to pay pension to the petitioner under the Schemewithout insisting for any other certificate from a co-prisoner whowas imprisoned for more than one year or more as the certificateissued by Mr.Kuppusamy would be suffice.15.Admittedly, the Scheme has been given effect from 15.08.1972.Though the claim was made by the petitioner on 12.12.1994, he is notable to get the pension so far due reliance on technicalities by theCentral Government. The Hon'ble Supreme Court in Gurdial Singh v.Union of India (cited supra) while directing the Central Governmentto grant pension has held that it should be from the date of filingof the writ petition and not from the date coming into force of theScheme. Further, the Hon'ble Supreme Court has directed payment ofinterest @ 12% p.a. Following the same, in my considered opinion, inthe case on hand, the petitioner would be entitled for pension fromthe date of his application namely on 12.12.1994 with interest @ 12%p.a.16.In the result, the writ petition is allowed and therespondents are directed to pay 'Swantantrata Sainik Samman Pension'under the "Swantantrata Sainik Samman Pension Scheme 1980" to thepetitioner with effect from 12.12.1994. with interest @ 12% p.a. Nocosts. Consequently, connected miscellaneous petitions are closed. Sd/Asst.Registrar19.3.2009*Corrected as per order of this Court dt.25.3.09made in W.P.No.9740/08sd/- Assistant Registrar26.03.2009/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ jbmTo1.The Secretary to Government of India, / To be substitutedMinistry of Home Affairs Freedom Fighters,/ to the order Division I Floor, Lok Nayak Bhavan, / already despatchedNew Delhi. / on 24.03.20092.The Under Secretary to Government of India,/Ministry of Home Affairs,/Griah Mantralaya,/Freedom Fighters Division,/Lok Nayak Bhavan,/New Delhi – 11./3.The Secretary to Government/Public Department (PP-1),/Fort St. George,/Chennai – 600 009./1 cc To Mr.G.Thangavel, Advocate, SR.96421 cc To The Government Pleader, SR.7988 W.P.No.9740 of 2008SGL(CO)SRA(19/03/2009)SRA(30/03/2009)