A.K.Gopal v. The State of Tamilnadu

2. This writ petition is directed against the order of therespondent Government dated 25.4.2007, by which the respondenthas rejected the claim of the petitioner for payment of freedomfighters pension payable under the State Government Scheme onthe basis that there is no acceptable evidence and thepetitioner has only enclosed old documents. 3. It is the case of the petitioner that he hadparticipated in the freedom movement, especially Quit IndiaMovement and had been imprisoned at Vellore Jail for a periodof one month. After independence, the Government of India,under various schemes framed for the benefit of freedomfighters, has been sanctioning pension amount. The petitionerhaving undergone rigorous imprisonment for a month, is eligiblefor freedom fighters pension under the State Government Scheme.3(a). It is stated that the petitioner applied to therespondent for the grant of State pension, which was receivedby the respondent on 30.1.1982. Along with the saidapplication, the petitioner had also enclosed co-prisonercertificate obtained from Mr.P.S.K. Lakshmipathi Raju,Ex.M.L.A. apart from enclosing the certificates issued by themembers of the High-level Committee for freedom fighterspension. The District Collector and the Tahsildar afterconducting enquiry, directed the petitioner to producecertificates from the High Level Committee nominated by theGovernment. 3(b). It is, thereafter, the petitioner obtainedcertificates from Late Shri.Ma.Po.Sivagnanam, the Chairman,State Advisory Committee and Tmt.Manjupashini. Even afterproduction of the said certificates, nothing happened exceptthe enquiry which was conducted after 14 years viz., on29.8.1996 by the Tahsildar, Tondiarpet. It is stated that theTahsildar has forwarded a report to the Government in favour ofgranting pension to the petitioner. 3(c). The petitioner has earlier filed W.P.No.2169 of 1997against the State and Central Governments for payment ofpension and this Court by order dated 11.12.1997, has directedthe Government to consider the case of the petitioner liberallywithin a period of six months. Thereafter, repeatedrepresentations were made and ultimately, the claim of thepetitioner came to be rejected. It was, against the saidrejection order, the petitioner filed writ petition inW.P.No.10244 of 2000, which came to be disposed of by aDivision Bench on 7.3.2001. In the said judgment of theDivision Bench it was clearly held that in cases where oldjail records are not available, the concerned individuals canproduce co-prisoner's certificate from anyone of two personsnominated for the purpose and on that basis, the Government can https://hcservices.ecourts.gov.in/hcservices/ proceed to consider the claim. Ultimately, the Division Benchhas directed the Government to reconsider the case of thepetitioner and pass orders within a period of four weeks. 3(d). After the Division Bench judgment, the petitionerhas made representation and he has again approached this Courtby filing W.P.No.2229 of 2005, in which, by an order dated5.2.2007, this Court, while eliciting various points to beconsidered for the purpose of granting pension to freedomfighters and also referring to various judgments, directed theGovernment to pass orders on merit in the following words:"6. The grievance of the petitioner isthat in spite of the direction of this Courtin W.P.No.10243 and 10244 of 2000 dated7.3.2001, the Government has not consideredhis representation and no order is passedthereon till date. Since the representationis addressed only to the Chief Minister'sCell and as there is no proof that the sameis forwarded to the respondent, I direct thepetitioner to submit a detailedrepresentation with copies of the requiredcertificates to the respondent herein byregistered post with acknowledgment duealong with copy of this order within twoweeks from the date of receipt of copy ofthis order. The respondent is directed toconsider the same in the light of sanctionof State Freedom Fighters Pension Scheme andpass orders taking note of the decisions ofthis Court reported in 1991 WLR 49(G.Gabriel vs. Government of India), 1994WLR 137 (R.Thangavelu v. Government of India& another) and the judgment of theHonourable Supreme Court, reported in AIR1993 SC 2127 (Mukund Lal Bhandari v. Unionof India), within six weeks from the date ofreceipt of the representation withenclosures from the petitioner."It is, thereafter, the respondent has passed the impugned orderdated 25.4.2007.4. The learned counsel for the petitioner, by placingreliance on various judgments including that of the SupremeCourt in Mukund Lal Bhandari vs. Union Of India [AIR 1993 SC2127] and the Division Bench of this Court in R.Thangavelu vs.Government of India & another [1994 WLR 137] apart fromG.Gabriel vs. Government of India [1991 WLR 49], would contendthat it is only under the Scheme of the Government, two https://hcservices.ecourts.gov.in/hcservices/ certificates issued by Late Shri.Ma.Po.Sivagnanam, theChairman, State Advisory Committee and Tmt.Manjupashini havebeen produced and in spite of the same, the impugned ordercame to be passed stating as if no new documents have beenproduced.5. On the other hand, it is the case of the learnedSpecial Government Pleader that even though it is true that inthis case, the consideration should be liberal, there should besome papers for the Government to pass orders in favour of thepetitioner under the Freedom Fighters Scheme since the paymentis made under the Scheme for the benefit of freedom fighters.6. A reference to the documents filed by the petitioner inthe typed set of papers show that Late Shri.Ma.Po.Sivagnanam,the Chairman, State Advisory Committee, who is undoubtedly afreedom fighter and he has been nominated by the Government forthe purpose of certifying the claims of such freedom fightershas issued the certificate which is in the following terms:jpU/V/nf/nfhghy; be/81 gplhhpnfhapy; bjU.brd;id 600 001 vd;gth; njr tpLjiyg; nghhpy;g';F bfhz;L (1/11/42 Kjy; 30/11/42 tiu) rpiwbrd;whh; vd;gij ehd; mwpntd;/vdnt muR jUk; khdpaj;ij bgw mth; jFjp[a[iltuhfpwhh; vd;W rhd;W jUfpnwd;/"In addition to that, in the certificate issued by the HonoraryGeneral Secretary of Bala Mandir Ms.Manjubhashini, it is alsoclearly stated that the petitioner was involved in Quit IndiaMovement in August, 1942 in the following words:" I certify that Thiru A.K.Gopal, residingat No.16, Pidariar Koil Street, Madras-79,took part in "QUIT INDIA MOVEMENT" held inAugust,1942."In the above said certificates in clear terms it is stated thatbetween 1.11.1942 and 30.11.1942 the petitioner was imprisonedfor having participated in the Quit India Movement. 7. In addition to that, the petitioner has also encloseda certificate from the Tamil Nadu Congress Committee (I)Freedom Fighters Cell dated 14.2.1994, wherein it is statedthat the petitioner participated in the Quit India Movement andarrested and imprisoned. Further, the All India FreedomFighters' Organisation, Tamil Nadu State Committee has alsoissued a certificate dated 1.12.1988 to that effect. In spite https://hcservices.ecourts.gov.in/hcservices/ of these documents which have been produced by the petitioner,who is now stated to have crossed the age of 88 years, therespondent has chosen to reject the claim of the petitioner onthe ground that no acceptable documents are produced. 8. In R.Thangavelu vs. Government of India & another[1994 WLR 137], the Division Bench consisting of D.Raju andAR.Lakshmanan,JJ (as Their Lordships then were) had an occasionto consider the grant of pension under the Freedom Fighters'Pension Rules, 1966. The Division Bench has traced the originof the pension for Freedom Fighters Pension Scheme in the Stateof Tamil Nadu which has been issued by way of variousGovernment Orders from time to time and made a thorough studyabout the same, which is as follows:"13. Pension Scheme to freedom fightersprovided by the Government of Tamil Nadu areas under. The Government of Tamil Nadu fromtime to time commencing from 28.9.1966passed various Government orders conferringthat benefit on the freedom fighters. Thefirst Government Order in the series isG.O.No. 2064, Public (General C) Department,dated 28.9.1966. The freedom fighters whowere sentenced to imprisonment or were heldunder detention for not less than threemonths or who were killed in action or wereawarded capital punishment or died due tofiring or lathi charge on account ofparticipation in the National Movement, thelast campaign of which was launched between1942 and 1944, will be eligible for thebenefit conferred on them under the saidscheme. The Government, accordingly, havesanctioned the benefits under the saidscheme with effect from 1.10.1966 for thegrant of pension to freedom fighters. Rulesrelating to the scheme were also framed.Under the said scheme, the pension payableto each freedom fighter shall be Rs. 50 permensem. The Rules framed by the Governmentwere called as Madras Freedom FightersPension Rules, which came into force from1.10.1966. An 'eligible freedom fighter' hasbeen defined to say, 'a freedom fighterwhose income does not exceed Rs. 100 permensem'. A pension of Rs. 50 per mensemshall also be payable to destitute freedomfighter. A pension as stated in Rule 5, https://hcservices.ecourts.gov.in/hcservices/ shall also be payable to the wife/husbandand minor children of a freedom fighter whois now dead, provided that the total grantpayable in cases where there are two or moreapplicants claiming relationship with adeceased freedom fighter shall be limited toRs. 50 per mensem. The pension shall bepayable till death if the grantee is thefreedom fighter himself or herself, and ifthe grantee is the wife of a freedomfighter, the pension shall be payable tillher death or re-marriage. If the grantee,however, is a minor son, or a minordaughter, the pension shall cease on theson's attaining the age of 18 or on thedaughter's marriage or attaining the age of21, whichever is earlier. The applicationfor pension must be accompanied bycertificates obtained from the JailDepartment as proof for having beensentenced to imprisonment or held underdetention for not less than three months.The procedure in regard to the considerationof application after the receipt of the samefrom a freedom fighter for the grant ofpension has also been considered by theGovernment and necessary rules have beenframed for that purpose.14. The next Government Order in theseries is dated 10.11.1966 issued by theGovernment of Tamil Nadu in Memo. No.FFP/6841/66-3, Public (General C)Department. A reference to the letter dated25.5.1961 received from the Government ofIndia has also been made and the suggestionmade by the Government of India has alsobeen incorporated therein. As per thesuggestion, an Ex. INA personnel whoparticipated in the INA movement will alsobe treated on par with freedom fighters whoparticipated in the national movement, whichled to the country's independence. Thesuggestion given by the Union of India wasaccepted by the Government of Tamil Nadu andthe Government of Tamil Nadu, therefore,decided to extend certain concessions to theEx. INA personnel in the State of Tamil Nadutreating them on par with the freedom https://hcservices.ecourts.gov.in/hcservices/ fighters such as preference in the matter ofemployment in Government service,educational concessions, etc. subject to thefollowing conditions:(i) An Ex. INA person who applies for thegrant of pension shall produce a certificatefrom the All India INA enquiry and reliefcommittee, New Delhi, to the effect that heserved in the INA.(ii) An Ex. INA person who satisfied theother conditions laid down in the G.O. Thirdread above except those relating toimprisonment, detention, etc. and productionof certificate from the Jail Department willbe considered eligible for the grant ofpension.15. The next Government Order in theseries in G.O.Ms. No. 95l, Public (PoliticalPension I) Department, dated 18.5.1981. Inthe said Government Order the Governmenthave reduced the minimum period ofimprisonment/detention/remand specified inRule 4(i) of the Tamil Nadu Freedom FightersPension Rules, 1966, from one month to threeweeks. In G.O.Ms. No. 817, Public (PoliticalPension II) Department, dated 1.4.1980, theGovernment have already reduced the minimumperiod of imprisonment/detention/remand fromthree months to one month, which was furtherreduced to three weeks in this GovernmentOrder. Accordingly, necessary amendments tothe Rules were also directed to be made.16. It appears that the freedomfighters have been frequently representingto the Government that the period of lastcampaign mentioned under the State scheme,may be extended from 1944 to 1947 as in thecase of Central Government Freedom FightersPension Scheme, taking into account thevarious incidents such as the nation-widehartal and agitations conducted against thearrest of Jawaharlal Nehru on the KashmirBorder in 1946, the hartal at Harvey Mills,Madurai agitation by the Army and Air Forcemen against the Britishers as also insupport of the Bombay Naval Mutiny 1946,etc. It appears, they represented to https://hcservices.ecourts.gov.in/hcservices/ Government that pension may also besanctioned to those freedom fighters whowent underground or whose property wasconfiscated or attached or who weredismissed or removed from service on accountof their participation in the freedommovement. The Government, in consultationwith the State Advisory Committeeconstituted for screening Central FreedomFighters Pension applications, directed thatthe following categories of freedom fightersalso be made eligible for grant of pensionunder the Tamil Nadu Freedom Fighters'Pension Rules:(i) Freedom fighters who sufferedimprisonment or were kept inremand/detention for not less than threeweeks or who were killed in action or wereawarded capital punishment or have becomepermanently incapacitated due to firing orlathi charge on account of theirparticipation in the various incidentsincluding those who were imprisoned in whatwas known as the Madurai conspiracy case,that took place in connection with theFreedom Movements during 1945-47.(ii) Members of Army and Air Force whoagitated against the Britishers as also insupport of Bombay Naval Mutiny, 1946, andsuffered imprisonment for three weeks orlost their jobs.(iii) Freedom Fighters who went undergroundor whose property was confiscated/attachedor who were removed/dismissed from serviceon account of their participation in theFreedom Movement, provided that such claimsare supported by Court or other officialdocumentary evidence. The above directionwas given by the Government of Tamil Nadu inG.O.Ms. No. 910, Public (Political PensionII) Department, dated 7.6.1982. It is alsomentioned in that Government Order that thesame will take effect from 15.5.1982. Thepersons whose annual income does not exceedRs. 5,000 may apply to the Chief Secretary,Public (Political Pension) Department,Madras-600009, with a copy to the Collector https://hcservices.ecourts.gov.in/hcservices/ of the District concerns. The last datefixed for receipt of applications is15.9.1982.17. The next Government order in theseries is G.O.Ms. No. 581, Public (PoliticalPension II) Department, dated 11.4.1983, bywhich the Government directed that theexisting annual income ceiling of Rs. 5,000prescribed under Rule 4(ii) of the TamilNadu Freedom Fighters Pension Rules, 1966,as amended, be removed in tow with effectfrom 11.3.1983, from which date the pensionshall be payable to those who becomeeligible on account of this concession. Thefreedom fighters including ex. INA personneland their dependents, who become eligibleconsequent on the removal of the incomeceiling, were also permitted to apply directto the Chief Secretary, Public (PoliticalPension) Department, Madras-600009, in theform already prescribed under the Rules,with a copy marked to the Collector of theDistrict concerned on or before 15.7.1983.18. G.O.Ms. No. 740, Public (PoliticalPension II) Department; dated 4.5.1988refers to the several representationsreceived from the widows of freedom fighterswho have migrated to other Slates in Indiato live with their children consequent onthe demise of their husbands, that they areunable to receive the pension in view of theprovisions, viz. that if the pensionerresides outside Tamil Nadu for more thanthree calendar months he/she is not eligiblefor the receipt of pension. The Governmentof Tamil Nadu considered their request andhave decided to amend Rule 8 of the TamilNadu Freedom Fighters' Pension Rulesproviding for the payment of pension topersons who have migrated to other Statesalso subject to certain conditions. Certainconditions which have been imposed foreligibility to receive pension under thiscategory have also been more fully explainedin paragraphs 2 to 4 of the said GovernmentOrder. https://hcservices.ecourts.gov.in/hcservices/

19. The next Government Order in theseries is G.O.Ms. No. 2015, Public(Political Pension II) Department, dated16.11.1988, wherein the Government of TamilNadu have directed that the applications forthe grant of State Freedom Fighters' Pensionmay be received from persons who are aged 70and above as on 15.10.1988 and who produceco-prisoner's certificate from any one ofthe persons mentioned in the annexure tothat Government Order. Considering the claimof several aged and genuine freedom fighterswho apply for the grant of State FreedomFighters Pension in spite of the fact thatthe last date was over, the Government havedecided to extend the last date and toaccept the co-prisoner's certificates ofex-Legislatures and freedom lighters, whoseintegrity and morality is beyond question,atleast to persons who are sufficientlyaged, as a gesture in connection with the40th Anniversary of India's Independence.The names of persons who are authorised toissue the co-prisoner's certificate havebeen mentioned in the annexure to thatGovernment Order, which is reproducedhereunder:(i) Dr. M.P. Sivagnanam, Madras District-Former Chairman, Legislative Council, StateAdvisory Committee.(ii) Thiru O.V. Alagesan, ChengalpattuDistrict - Former Union Minister.(iii) Thiru C. Subramaniam, Madras District- Former Union Minister for Finance.(iv) Thiru R. Govindaswami, Madras District- Retired Joint Director of RuralDevelopment.(v) Thiru S. Lakshmikanthan Bharathi, MadrasDistrict - retired Assistant DevelopmentCommissioner, Rural Development Department.(vi) Thiru M. S. Selvarajan, ThirunelveliDistrict, Ex. M.L.A.(vii) Thiru Thookumedai Rajagopal, MadrasDistrict (belongs to Tirunelveli formerly)Journalist. https://hcservices.ecourts.gov.in/hcservices/ (viii) Thiru M.S. Viswanathan alias Savi,Madras District, Editor, Savi.(ix) Thiru K. Subramaniam, Madras (belongsto Coimbatore) Freedom Fighter, formerMember, State Advisory Committee,(x) Thiru L. Krishnaswami Bharathi, Madras(belongs to Tirunelveli) freedom fighter.(xi) Tmt. K. Manjubashini, Madras District-Social Worker.(xii) Thiru A.N. Sivaraman, Madras District- formerly Editor, Dinamani.(xiii) Thiru C. Rajavelu, Madras DistrictRetired Director of Translations, formerlyMember, State Advisory Committee.(xiv) Thiru T.R. Ramamirtha Thondaman,Thanjavur District - Ex. M.L.A.(xv) Thiru T.S. Avinasilingam Chettiar,Coimbatore District - Ex. Education Ministerof Tamil Nadu.20. In partial modification of theorders issued in G.O.Ms. No. 2015, Public(Political Pension II) Department, dated16.11.1988, the Government directed inLetter No. 53920/90-1, Public (PoliticalPension II) Department, dated 28.8.1990,that the applications for the grant of StateFreedom Fighters Pension may be received forconsideration from persons who are aged 70and above as on 15.10.1988 and who produceco-prisoner's certificate from any two ofthe persons mentioned in the annexureG.O.Ms. No. 2015, Public (Political PensionII) Department, dated 16.11.1988. However,it is mentioned that the generalcertificates issued by these certifiers willnot be taken as valid evidence for freshsanction of State Freedom Fighters Pension.21. The last Government Order in theseries is G.O.Ms. No. 877, Public (PoliticalPension II) Department, dated 9.8.1992wherein the Government, in recognition ofthe sacrifices made and the patrioticfervour of those who fought for the freedomof the nation have announced among others,many concessions. Accordingly, the https://hcservices.ecourts.gov.in/hcservices/ Government directed that the quantum ofpension now granted to the freedom fighterpensioners including ex. INA personnel andtheir dependents be increased as followswith effect from 1.8.1992.(i) The pension of Rs. 400 per mensem(Rupees four hundred only) now being drawnby the State Freedom Fighters alone beraised to Rs. 1,000 (Rupees one thousandonly) per month.(ii) The Freedom Fighters who are drawingSwadantrata Sainik Samman Pension of Rs. 750per month (Rupees seven hundred and fiftyonly) from the Central Revenue will be paida sum of Rs. 250 (Rupees two hundred andfifty only) from the State funds.(iii) The State pension of Rs. 100 permensem (Rupees one hundred only) now beingdrawn by Freedom Fighters who are in receiptof Central Freedom Fighters' Pension of Rs.750 be raised to Rs. 250 per mensem (Rupeestwo hundred and fifty only).(iv) The pension of Rs. 400 per mensem(Rupees four hundred only) now being drawnby the wives/husbands/minor children ofdeceased State Freedom Fighters Pensionersbe raised to Rs. 500 per mensem (Rupees fivehundred only)"[Emphasis supplied]9. In fact the Division Bench has also taken note of thejudgment in G.Gabriel vs. Government of India [1991 WLR 49]rendered by J.Kanakaraj,J. (as he then was) and by referring tosignificant comments made by the learned Judge on thenecessity of granting pension to freedom fighters at their doorsteps, the Division Bench has quashed the same, which is asfollows:"The rules for the grant of Central Governmentpension and the mode of proof are set out in theFreedom Fighters Pension Scheme, 1972. In asubsequent Press Note this requirement was slightlymodified. I am at a loss to know why the respondentsare denying the claim of the petitioner on purelytechnical grounds. Schemes are introduced by theGovernment not for the purpose of adding feathers totheir cap. Such claims are not for the sake of addingto the record of achievement. These schemes are https://hcservices.ecourts.gov.in/hcservices/ essential to benefit the freedom fighters who hadsuffered for the cause of freedom. To say that thepetitioner has no statutory right and the grant ofpension is gratuitous is most uncharitable. The proofof the pudding is in its eating. This is certainlynot a case where the respondents can take aninflexible attitude and try to interpret the rulestoo strictly. The razor edge interpretation iscertainly not called for in a case like this. It isreally surprising to see as to why the State of TamilNadu should be so anxious to prevent the petitionerfrom getting the pension. Neither the counter affidavits nor the repliesof the respondents give any specific reason as to whythe certificates produced by petitioner should not beaccepted. The certifiers are admittedly persons whoare receiving pension from the Central Government.Necessity of the certifiers being a sittinglegislator or a past legislator has been dispensedwith under the present guidelines. I am, therefore,clearly satisfied that the petitioner is entitled forthe grant of pension by the Central Government underthe Swadantrata Sainik Samman Pension Scheme, 1980.I have already pointed out that in cases likethis one must look into the overall aspect of theclaim and not dissect the requirements of law insuch a manner so as to deny the claim of thepetitioner. It is not as if the petitioner is not afreedom fighter at all. What he lacks according tothe respondents is proof as required by theguidelines prescribed by the Government. I,therefore, set aside the order of the 1st respondentdated 6.11.1989 and direct the 1st respondent togrant pension under the abovesaid scheme from thedate of the petitioner's second application, viz.from 27.5.1979. However, I am not inclined to grantinterest at the rate of 18% as claimed in the writpetition. The payment of arrears to some extent willalleviate the sufferings of the petitioner. Thearrears of pension shall be paid by the 1strespondent on or before 30.4.1991. Further, pensionwill be paid every month in accordance with thescheme."After referring to various judgments on the issue, the DivisionBench has explained the laudable object of the scheme in thefollowing words: https://hcservices.ecourts.gov.in/hcservices/ "36. It is clear from the scheme referred toabove that the Government wanted to grant pension tothe freedom fighters who had suffered imprisonmentfor liberating our nation from the yokes of foreignrule. The object of the scheme appears to be that thepersons who suffered imprisonment during the freedomstruggle should not be left to suffer in their oldage. This pension is granted to freedom fighters andthat class of persons are slowly becoming extinct.Having regard to the above laudable object andpurpose behind the scheme it is but necessary thatthe appropriate Government should adopt a liberalapproach in the matter of grant of pension to thereal freedom fighters. When we say this, it does notmean that when a person makes a claim under thescheme for pension, he should be granted the same asa matter of course. No doubt, the applicant shouldsatisfy the conditions stipulated in the scheme."10. Therefore, what is required for the Government for thepurpose of deciding the eligibility of a person to receivepension is not to make a rowing enquiury about each and everyminute details but to find out prima facie as to whether theperson had participated in the freedom movement. In fact,originally the eligibility was that the person should haveundergone a minimum two years imprisonment which hassubsequently been liberalised by the Government by variousGovernment Orders making it clear that even if it is for threeweeks' time in a genuine case, the grant of pension has to bemade adopting liberal approach. In such view of the matter,the reason adduced by the respondent in the impugned ordercannot be sustained. 11. It is not known as to what sort of new documents thepetitioner who is aged 88 years can produce except those issuedby the eminent persons who have fought for the freedom of thecountry along with the petitioner in or about 1942 and who havebeen nominated for that purpose. Therefore, the finding of therespondent in the impugned order that no new documents havebeen produced has no meaning. As held by the Division Bench,the mere technicality should not stand in the way of renderingsubstantial justice, especially in this case as it is notgratuitous and it is an obligation on the part of theGovernment to make such payment on prima facie conclusion thatthe person is eligible under the Scheme. https://hcservices.ecourts.gov.in/hcservices/

12. In view of the same, the impugned order is set asidewith direction to the respondent to pass orders grantingeligible pension to the petitioner from the date of hisoriginal application viz., 27.1.1982 in accordance with theGovernment Orders of the Government of Tamil Nadu within aperiod of four weeks from the date of receipt of copy of thisorder. The writ petition is ordered accordingly. No costs.Connected miscellaneous petitions are closed.KhSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Secretary to Government State of Tamilnadu Public (Political Pension III) Department, Fort St George, Chennai 9.•1 cc to Mr. J. Ashok, Advocate SR No.9898•1 cc to the Government Pleader, SR No.9693W.P.No.31203/2007SJ(CO)SR/2.4.2009