The Government of India v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.12.2008CORAMTHE HONOURABLE MR. JUSTICE D.MURUGESAN andTHE HONOURABLE MR. JUSTICE M.SATHYANARAYANANWrit Appeal No.2016 of 2003andW.A.M.P.No.2847 of 2003The Government of India,rep. by its Secretary,Ministry of Home Affairs,Freedom Fighters Division,New Delhi-3.... AppellantVs.1.T.R.T.Thirumalaivasi2.The Government of Tamil Nadu rep. by its Secretary, Public (Political Division) Department, Fort St. George, Chennai 600 009.... RespondentsWrit Appeal under Clause 15 of Letters Patent, praying to setaside the Order dated 25.02.2002 made in W.P.No. 16636 of 1999 filedunder article 226 of the Constitution of India to issue a writ ofcertiorarified mandamus to call for the records pertaining to theorder dated 11.1.99 of the first respondent and to quash the same andconsequently directing the 1st respondent to grant pension underSwathantra Sainik Pension Scheme 1980 to the petitioner from11.3.1982 onwards.For Appellant : Mrs.R.Maheswari Senior Central Govt. Standing Counsel For Respondents: Mr.K.V.Sundararajan (for R1)JUDGEMENT(Judgement of the Court was delivered by D.MURUGESAN, J.)This writ appeal is directed against the order dated25.02.2002 passed by the learned single Judge directing the CentralGovernment to grant the pension to the first respondent herein underthe Swathantrata Sainik Samman Pension Scheme, 1980 (hereinafterreferred to as "the Scheme, 1980) from 11.03.1982 onwards, at the https://hcservices.ecourts.gov.in/hcservices/ instance of the Ministry of Home Affairs, Government of India,represented by its Secretary.2. The issue raised in this writ appeal is, Whether the first respondent –Mr.T.R.T.Thirumalaivasi, is entitled to the pensionunder the Scheme, 1980 on the ground that he hadsuffered minimum imprisonment of 6 months on accountof his participation in freedom struggle?3. The claim of the first respondent for pension was on thebasis that he under went imprisonment from 01.11.1942 to 29.04.1943in Central Jail, Vellore on account of his participation in QuitIndia Revolutionary Movement. In support of the said claim, he reliedupon the free fighters' pension order No.12169, dated 21.09.1983issued by the Under Secretary to Government, Public (Political PensionIV) Department, Freedom Fighters' Pension Form IV Department, grantingfreedom fighters' pension under the scheme evolved by the StateGovernment of Tamil Nadu. In addition to the above, he also reliedupon the co-prisoner certificates issued by (1)Mr.P.S.K.lakshmipathiraj, Ex. M.L.A., (2)Mrs.Lakshmanan MDV, (3)Mr.Rajaram Naidu, Ex. Minister and (4) Mr.MayandiBharathi. The saidcertificates issued by the above respective freedom fighters woulddisclose that the first respondent had suffered imprisonment duringthe period between 01.11.1942 and 29.04.1943 in Central Jail, Velloreon account of his participation in Quit India Revolutionary Movement.However, the request of the first respondent for payment of pensionwas rejected by the appellant by order dated 11.01.1999 on thefollowing grounds:(1) The State Government of Tamil Nadu hasnot duly verified and recommended the case forgrant of pension in respect of your (firstrespondent herein) claimed imprisonmentsuffering/underground suffering.(2) Your (first respondent in the writappeal) claimed underground suffering after releasefrom prison should be against warrant orarrest/proclamation order/or award on head asrequired under the Scheme.(3) You (first respondent in the writappeal) have stated that after release from jailyou were being shadowed by the Special Branch CIDand you were compelled to go undergroundimmediately after your release from jail. In thisconnection it is stated here that even if the CIDtried to arrest you, you have not attached andadduced documentary evidence to prove/show thereason of your being wanted by them. If suchrecords of the period are not available, you havenot attached the non-availability of RecordCertificate duly verified by the State Governmentas required in the Scheme. https://hcservices.ecourts.gov.in/hcservices/

4. While the said order was questioned in W.P.No. 16636 of1999, the learned single Judge had accepted the claim of the firstrespondent and held that he is entitled to freedom fighters' pensionin terms of the Scheme, 1980, as he had produced sufficient evidenceto show that he had suffered imprisonment for six months on account ofhis participation in the freedom struggle.5. Mrs.R.Maheswari, learned Senior Central Government StandingCounsel, in challenging to the above would submit that when the orderof the Central Government was made on the ground that there was noevidence to show that the first respondent had suffered imprisonmentfor six months on account of his participation in the freedomstruggle, the learned single Judge ought not to have re-appreciatedthe said evidence and come to a different conclusion. She wouldfurther submit placing reliance upon the judgements of the Apex Courtreported in Mukund Lal Bhandari v. Union of India, 1993 Supp. (3) SCC2 and Union of India v. Mohan Singh and others, 1996 (1) SCC 351, thatwhen the Scheme itself mentions the documentary evidence which arerequired to be produced before the Government and the Government afterscrutiny of the documents had come to the conclusion that there are noproof, the Court could not scrutinise the documents to find outsufficiency of proof. The learned single Judge, is therefore, hadcommitted error in re-appreciating the evidence. 6. We have heard Mr.K.V.Sundarrajan, learned counsel appearingfor the first respondent as well on the above.7. The objects of the pension Scheme has been well stated bythe Apex Court in Gurudial Singh v. Union of India, (2001) 8 SCC 8 inpara (6) & (7) and the same are reproduced hereunder:-"6. The Scheme was introduced with the object ofproviding grant of pension to living freedom fighters andtheir families and to the families of martyrs. It has tobe kept in mind that millions of masses of this countryhad participated in the freedom struggle without anyexpectation of grant of any scheme at the relevant time.It has also to be kept in mind that in the partition ofthe country most of the citizens who sufferedimprisonment were handicapped to get the relevant recordfrom the jails where they had suffered imprisonment. Theproblem of getting the record from a foreign country isvery cumbersome and expensive. Keeping in mind the objectof the Scheme, the authorities concerned are requiredthat in appreciating the Scheme for the benefit offreedom fighters a rational and not a technical approachis required to be adopted. It has also to be kept in mindthat the claimants of the Scheme are supposed to be suchpersons who had given the best part of their life for thecountry. This Court in Mukund Lal Bhandari case, 1993Supp (3) SCC 2, observed :“The object in making the said relaxation wasnot to reward or compensate the sacrifices made in https://hcservices.ecourts.gov.in/hcservices/ the freedom struggle. The object was to honour andwhere it was necessary, also to mitigate thesufferings of those who had given their all for thecountry in the hour of its need. In fact, many ofthose who do not have sufficient income to maintainthemselves refuse to take benefit of it, since theyconsider it as an affront to the sense ofpatriotism with which they plunged in the freedomstruggle. The spirit of the Scheme being both toassist and honour the needy and acknowledge thevaluable sacrifices made, it would be contrary toits spirit to convert it into some kind of aprogramme of compensation. Yet that may be theresult if the benefit is directed to be givenretrospectively whatever the date the applicationis made. The Scheme should retain its highobjective with which it was motivated. It shouldnot further be forgotten that now its benefit ismade available irrespective of the income limit.Secondly, and this is equally important to note,since we are by this decision making the benefit ofthe Scheme available irrespective of the date onwhich the application is made, it would not beadvisable to extend the benefit retrospectively.Lastly, the pension under the present Scheme is notthe only benefit made available to the freedomfighters or their dependants. The preference inemployment, allotment of accommodation and inadmission to schools and colleges to their kith andkin etc. are also the other benefits which havebeen made available to them for quite sometimenow.” The Court categorically mentioned that thepension under the Scheme should be made payablefrom the date on which the application is madewhether it is accompanied by necessary proof ofeligibility or not.7. The standard of proof required in such cases is notsuch standard which is required in a criminal case or ina case adjudicated upon rival contentions or evidence ofthe parties. As the object of the Scheme is to honourand to mitigate the sufferings of those who had giventheir all for the country, a liberal and not a technicalapproach is required to be followed while determiningthe merits of the case of a person seeking pension underthe Scheme. It should not be forgotten that the personsintended to be covered by the Scheme had suffered forthe country about half-a-century back and had notexpected to be rewarded for the imprisonment suffered bythem. Once the country has decided to honour suchfreedom fighters, the bureaucrats entrusted with the job https://hcservices.ecourts.gov.in/hcservices/ of examining the cases of such freedom fighters areexpected to keep in mind the purpose and object of theScheme. The case of the claimants under this Scheme isrequired to be determined on the basis of theprobabilities and not on the touchstone of the test of“beyond reasonable doubt”. Once on the basis of theevidence it is probabilised that the claimant hadsuffered imprisonment for the cause of the country andduring the freedom struggle, a presumption is requiredto be drawn in his favour unless the same is rebutted bycogent, reasonable and reliable evidence."8. The Scheme relating to eligibility of pensionare as follows:-2.2 Imprisonment:- A person who had sufferedminimum imprisonment of six months (3 months, in caseof women, SC/ST freedom fighters) on account ofparticipation in freedom struggle subject tofurnishing of the following evidences:- (a) Imprisonment / detention certificatefrom the concerned jail authority, District magistrateor the State Government indicating the period ofsentence awarded, date of admission, date of release,facts of the case and reasons for release.(b) In case records of the relevant period arenot available, secondary evidences in the form of 2co-prisoner Certificates (CPC) from freedom figherswho have proven jail suffering of minimum 1 year andwho were with the applicant in the jail could beconsidered provided the State Government/UnionTerritory Administration concerned, after dueverification of the claim and its genuineness,certifies that documentary evidences from theofficial records in support of the claimed sufferingswere not available. In case the certifier happens tobe a sitting or Ex. M.P./M.L.A., only one certificatein place of the two is required.2.3. Underground:- A person who on account ofhis participation in freedom struggle remainedunderground for more than six months provided he was;A. a proclaimed offender; orB. one on whom an award for arrest wasannounced; orC. one for whose detention, order was issuedbut not served.Explanation: Voluntary underground suffering or self-exile suffering for party work under command of theparty leaders, are not covered as eligible sufferingsfor pension under the Central Scheme.The claim of underground suffering isconsidered subject to furnishing of the followingevidence:- https://hcservices.ecourts.gov.in/hcservices/ (a) Documentary evidence by way ofCourt's/Government's orders proclaiming the applicantas an absconder, announcing an award on his head orfor his arrest or ordering his detention.(b) In case records of the relevant period arenot available, secondary evidences in the form of aPersonal Knowledge Certificate from a prominentfreedom fighter who has proven jail suffering of aminim two years and who happened to be from the sameadministrative unit could be considered provided theState Government/Union Territory Administrationconcerned, after due verification of the claim and itsgenuineness, certifies that documentary evidences fromthe official records in support of the claimedsufferings were not available. 9. A person, who had suffered minimum imprisonment of 6months on account of his participation in freedom struggle is entitledto pension scheme, subject to furnishing imprisonment/detentioncertificate from the concerned jail authority, District Magistrate orthe State Government indicating the period of sentence awarded, dateof admission, date of release, facts of the case and reasons forrelease and in case of non-availability of records of the relevantperiod, he is entitled to secondary evidence in the form of 2 co-prisoner certificates from freedom fighters who have proven jailsuffering of minimum 1 year and who were with the applicant in jail.It is the specific stand of the District Magistrate/District Collectorthat the records relating to the period in question are not available.Hence, the first respondent is entitled to produce secondary evidence.Accordingly, he had produced Co-prisoner Certificates from thefollowing freedom fighters: (1) Mr.P.S.K.Lakshmipathiraj,Ex.M.L.A., (2) Mrs.Lakshmanan MDV, (3) Mr.Rajaram Naidu, Ex. Minister and (4) Mr.Mayandi Bharathi10. The appellant had not disputed the co-prisonercertificates from freedom fighters, who have suffered imprisonment formore than one year on account of their participation in freedomstruggle. It is not question of re-appreciation of evidence, whenthose certificates have not been disputed by the appellant and thereis nothing to indicate in the impugned order that the certificatescannot be relied upon. The appellant had rejected the request of thefirst respondent for pension under the Scheme, 1980 on three groundsas already extracted above.11. Insofar as the first ground is concerned, it is observedby the appellant that the State Government has not duly verified andrecommended the case for grant of pension in respect of claimedimprisonment suffering/underground suffering. In this context, we mayusefully refer the communication of the Deputy Secretary toGovernment, Government of Tamil Nadu, Public Department, Secretariat,Madras to Deputy Secretary to Government of India, Ministry of Home https://hcservices.ecourts.gov.in/hcservices/ Affairs, Freedom Fighters Division, New Delhi, dated 13.07.2005,wherein it is stated that the first respondent had produced co-prisoner certificate issued by Thiru.P.S.K.Lakshmipathy Raju and onthe recommendation of State Advisory Committee, he was sanctionedfreedom fighters pension. Therefore, the one of the grounds forrejection of the request made by the first respondent for freedomfighters pension under the Scheme, 1980 that the State Government hasnot duly verified and recommended the case for grant of pension inrespect of the first respondent's claimed imprisonment suffering isfactually in correct.12. As regards the other two grounds are concerned, we arenot inclined to consider the request of the first respondent for grantof pension under the Scheme viz. Clause 2.2 of the basic provisions ofthe Scheme, relating to underground suffering, as we proposed toconsider his claim only on the basis of Clause 2.2 of the basicprovisions of the Scheme, 1980. As we have found that the reasonstated by the appellant for rejection of the request of the firstrespondent for grant of pension under the Scheme, is factuallyincorrect, in the wake of the four co-prisoner certificates, which arenot even disputed by the appellant, the first respondent is entitledto the pension in terms of Clause 2.2. of the basic provisions ofthe Scheme, 1980. Therefore, the two judgements relied upon by thelearned Senior Central Government Standing Counsel for the appellanthave no application to the facts of the present case, as we are notcalled upon to go into the sufficiency of evidence. Since those fourco-prisoner certificates have not been considered by the appellantwhile passing the impugned order, the question of re-appreciating theevidence would not arise in this case. 13. As we have already discussed supra, the first respondenthad applied for grant of pension in terms of Clause 2.2 of the basicprovisions of the Scheme, 1980. On account of non availability ofrecords, he had produced secondary evidence in the form of four co-prisoner certificates from freedom fighters who have underwent formore than one year of imprisonment on account of their participationin freedom struggle and the were not discarded by the appellant, ascould be seen from the impugned order. The first respondent istherefore, entitled to pension as claimed.14. For the reasons discussed above, we do not find anyinfirmity in the order dated 25.02.2002 made in W.P.No.16636 of 1999and the writ appeal is dismissed. No costs. Consequently, connectedmiscellaneous petition is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kmk https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary, Government of India, Ministry of Home Affairs, Freedom Fighters Division, New Delhi-3.2.The Secretary, Government of Tamil Nadu, Public (Political Division) Department, Secretariat, Fort St. George, Chennai 600 009.1 cc to Mr.K.V.Sundararajan,Advocate,SR.676921 cc to Mrs.R.Maheswari,SR.67618Writ Appeal No. 2016 OF 2003NTK(CO)EM/12.12.08