R.Murugamalai v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.08.2010CORAMTHE HONOURABLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.17403 OF 2009R.Murugamalai... Petitioner VersusUnion of IndiaRep.by its Secretary to Government Ministry of Home AffairsLok Nayak Bhawan,Freedom Fighters' Division,New Delhi – 110 003.... RespondentPRAYER: Writ petition filed under Article 226 of the Constitution ofIndia praying for the issuance of writ of mandamus directing therespondent to grant Freedom Fighters' Pension under the "SWATHANTHIRASAINIK SAMMAN SCHEME" to the petitioner in view of his valid andvigorous participation in the Freedom struggle particularly in QuitIndia Movement, 1942, considering the petitioner's representationsmade to the respondent with the valuable certificates and recordsenclosed with the petitioner's representations. For Petitioner: Mrs.Karthika Ashok For Respondent:Mr.Sivagnanasambandam (CGC) O R D E RThe petitioner is a Freedom Fighter. According to him, anarrest warrant was pending against him during the Quit India Movementand he successfully evaded the arrest. He remained underground from1942 to 1944. He applied for pension under the "SWATHANTHIRA SAINIKSAMMAN PENSION SCHEME, 1980" vide application dated 12.08.1981. Alongwith his application, he enclosed two certificates, one fromMr.A.B.Nagier and another from Mr.A.M.Lakshmanan certifying that thepetitioner remained underground during 1942 to 1944, while theBritish police were trying to arrest him for his active participationin the Gandhian Movement, including the Quit India Movement.Unfortunately, his application was rejected by the respondent by an https://hcservices.ecourts.gov.in/hcservices/ order dated 28.02.1983 on the ground that he failed to produce anyacceptable documentary evidence relating to his suffering. Thepetitioner made a review application dated 01.11.1986, enclosing thecertificate from one Mr.Gangadhara Parasuram certifying that thepetitioner remained underground for about three years, evading thearrest of British police for his activities during the freedomstruggle. However, no order was passed on the review application.This forced the petitioner to approach this Court by filing thepresent present writ petition seeking for a direction to therespondent to grant Freedom Fighters' Pension under the "SWATHANTHIRASAINIK SAMMAN PENSION SCHEME, 1980". 2.Notice of motion was ordered on 25.11.2009. 3.Heard Mrs.Karthika Ashok, learned counsel for thepetitioner and Mr.Sivagnanasambandam, learned counsel for therespondent. 4.The learned counsel for the petitioner submits thatoriginally a Freedom Fighters' Pension Scheme was framed in the year1972. Later, the Scheme was modified into one of SWATHANTHIRA SAINIKSAMMAN PENSION SCHEME, 1980 (shortly "1980 Scheme") and the Scheme isstill in force. According to her, the petitioner is entitled topension under the 1980 Scheme. 5.The learned counsel for the petitioner has brought to mynotice clause 4 of the Scheme, which defines about eligibility of thepersons for pension under the Scheme. Clause 4(b)(2) of theexplanation to clause 4 of the Scheme is relied on by the learnedcounsel for the petitioner to claim pension under the Scheme. As perclause 4(b)(2) of the explanation to clause 4, a person who remainedunderground for more than six months evading arrest from the Britishpolice, is entitled to pension. The learned counsel also relies onclause 9 of the Scheme that deals with as to the evidence required toprove the sufferings of the freedom fighters. In clause 9, theevidence that is required to prove that the freedom fighter remainedunderground, is to produce a certificate from veteran freedom freedomfighter, who had undergone imprisonment for five years or more, ifthe official records relating to the arrest warrant or proclamationthat the freedom fighter was an offender, are not forthcoming due tonon-availability. 6.Citing clause 9 along with clause 4(b)(2) of theexplanation to clause 4 of the Scheme, the learned counsel for thepetitioner submits that the respondent was not correct in rejectingthe application for pension, as the petitioner complied with theconditions stated in clause 9 of the Scheme. It is stated that thepersons, who issued certificates, are in receipt of pension under the https://hcservices.ecourts.gov.in/hcservices/ 1980 Scheme and all of them remained in prison for more than fiveyears. 7.On the other hand, the learned counsel for the respondentsubmits that if the required certificates are produced, therespondent will consider the same, in accordance with the 1980Scheme. In fact, the learned counsel submits that the certificatescould be issued now by the persons, who were imprisoned for two yearsduring freedom struggle and it is not necessary that the personshould have 5 years imprisonment as prescribed in the 1980 Scheme. Itis also stated that a relaxation was made subsequently in thisregard. It is further submitted that if certificates were issued bythe freedom fighter, who underwent imprisonment for more than twoyears and those persons are in receipt of pension, the respondentcould consider the application and pass appropriate orders. 8.The petitioner made an application on 12.08.1981 claimingpension under the 1980 Scheme. In his application, he categoricallystated as follows:"Certificates from Messrs. A.M.Lakshmanan,A.B.Nagier, Freedom Fighters imprisoned for morethan five years and also other certificates fromother Freedom Fighter regarding the applicant'sactivities and participation in the Freedom Struggleare enclosed. The details about the participationof the Applicant in the Freedom Struggle andunderground Movement and in the National StudentsMovement are stated in the above certificates."The certificates issued by Thiru.A.M.Lakshmanan and Thiru.A.B.Nagierare enclosed in the typed set of papers. Both of them categoricallystated that the petitioner remained underground evading arrest fromthe British Police for his active participation in the GandhianMovement, pursuant to the arrest warrant. It has been categoricallystated that the petitioner remained underground during the periodfrom 1942 to 1944. Thiru.A.B.Nagier stated about the period ofimprisonment underwent by him. Thiru.A.B.Nagier stated that he wasarrested for Madurai Tirumalai Naicker Mahal Bomb Case in the year1937 and he was convicted under Sections 4A and 4B of Explosives Actfor six years. It is also stated that on 23.10.1942, he was againimprisoned under Rule 26(5) of Defence of India Rules and he wasdetained in the Central Jail, Vellore for one year. Thiru.A.M.Lakshmanan, stated in his certificate that he was convicted formore than 5 years and he was imprisoned in the Bellary Central Jail.Both of them also gave details about the pension paid by therespondent under the 1980 Scheme. https://hcservices.ecourts.gov.in/hcservices/

9.As rightly contended by the learned counsel for thepetitioner, the petitioner has clearly established his right to claimpension under 1980 Scheme. Clause 4(b)(2) of the explanation toClause 4 of the Scheme is extracted hereunder:"4.WHO IS ELIGIBLE?For the purpose of grant of Samman pensionunder the scheme, a freedom fighter is:-(a) A person who had suffered a minimumimprisonment of six months in the mainland jailsbefore Independence. However, ex-INA personnel willbe eligible for pension if theimprisonment/detention suffered by them was outsideIndia.(b) The minimum period of actual imprisonmentfor eligibility of pension has been reduced to threemonths, in case of women and SC/ST freedom fightersfrom 1-8-1980.EXPLANATION1. Detention under the orders of the competentauthority will be considered as imprisonment. 2.Period of normal remission upto one month willbe treated as part of actual imprisonment. 3.In the case of a trial ending in conviction,under trial period will be counted towards actualimprisonment suffered. 4.Broken period of imprisonment will be totalledup for computing the qualifying period.(b) A person who remained underground for more thansix months provided he was:1. a proclaimed offender; or2. one on whom an award for arrest / head wasannounced:3. one for whose detention order was issued butnot served. "10.In view of the explanation to clause 4 of the Scheme, aperson who remained underground for more than 6 months are alsoentitled to pension under the Scheme. Clause 9 of the Scheme is alsorelevant and the same is extracted hereunder. https://hcservices.ecourts.gov.in/hcservices/ "9.HOW TO PROVE THE CLAIMS (EVIDENCE REQUIRED)The applicant should furnish the documentsindicated below whichever is applicable. (a) IMPRISONMENT / DETENTION ETC.Certificate from the concerned jailauthorities, District Magistrates or the StateGovernment in case of non-availability of suchcertificates co-prisoner certificates from a sittingM.P. or M.L.A. or from an ex-M.P or ex-M.L.Aspecifying the jail period (Annexure-I in theapplication form).(b)REMAINED UNDERGROUND(i) Documentary evidence by way of Court's /Government orders proclaiming the applicant as anoffender, announcing an award on his head, or for hisarrest or ordering his detention. (ii) Certificates from veteran freedomfighters who had themselves undergone imprisonmentfor five years or more if the official records arenot forthcoming due to their non-availability. (c) INTERNMENT OR EXTERNMENT (i) Order of internment or externment or anyother corroboratory documentary evidence. (ii) Certificates from prominent freedomfighters who had themselves undergone imprisonmentfor five years or more if the official records arenot available. (Annexure II in the application).Note: -The Certifier veteran freedom fighters inrespect of underground suffering, internment /externment and the applicant should belong to thesame administrative unit before the reorganisation ofStates and their area of operation must be the same."11.Clause 9(b)(2) that is extracted above makes it clearthat certificates from Thiru.A.M.Nagier and Thiru.A.M.Lakshmanan aresufficient for grant of pension under 1980 scheme. Butunfortunately, the respondent rejected the application of thepetitioner by the order dated 28.02.1983 on the ground that thepetitioner failed to produce any acceptable evidence for his https://hcservices.ecourts.gov.in/hcservices/ sufferings. In my view, this rejection is contrary to clause 9(b)(2)of the 1980 Scheme. 12.The judgment of the Honourable Apex Court in GURDIALSINGH VS. UNION OF INDIA reported in 2001 (8) SCC 8, supports thecase of the petitioner. Para 7 of the judgment is relevant and thesame is extracted hereunder: "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 all forthe country, a liberal and not a technical approachis required to be followed while determining themerits of the case of a person seeking pension underthe Scheme. It should not be forgotten that thepersons intended to be covered by the Scheme hadsuffered for the country about half-a-century backand had not expected to be rewarded for theimprisonment suffered by them. Once the country hasdecided to honour such freedom fighters, thebureaucrats entrusted with the job of examining thecases of such freedom fighters are expected to keepin mind the purpose and object of the Scheme. Thecase of the claimants under this Scheme is requiredto be determined on the basis of the probabilitiesand not on the touchstone of the test of “beyondreasonable doubt”. Once on the basis of the evidenceit is probabilised that the claimant had sufferedimprisonment for the cause of the country and duringthe freedom struggle, a presumption is required tobe drawn in his favour unless the same is rebuttedby cogent, reasonable and reliable evidence."13.The following judgments of this Court relied on by thelearned counsel for the petitioner also supports the claim of thepetitioner. 1) K.APPANRAJ VS. THE SECRETARY TO GOVERNMENT OF INDIA AND OTHERSreported in CDJ 2004 MHC 1492) THE GOVERNMENT OF INDIA VS. T.R.T. THIRUMALAIVASI AND ANOTHERreported in CDJ 2008 MHC 537414.Hence the respondent was not correct in stating that thepetitioner failed to produce any acceptable documentary evidencerelating to his sufferings, when he produced certificates from https://hcservices.ecourts.gov.in/hcservices/ freedom fighters, who are in receipt of pension from the respondent,to the effect that the petitioner was remained underground during1942 to 1944. 15.The petitioner again made a review petition in 1986enclosing another certificate from one Mr.Gangadhara Parasuram. Inthe typed set, a certificate of suffering undergone by Mr.GangadharaParasuram is enclosed at page No.33. As per this certificate, hesuffered actual imprisonment for more than 5 years during the freedomstruggle and was lodged in various jails. The petitioner also statedin the affidavit that he produced certificate from Dr.T.Kannan, afreedom fighter, who was also imprisoned for more than 5 years. Thecertificate of suffering relating to Dr.T.Kannan is enclosed at pageNo.17 of the typed set of papers. He suffered imprisonment for morethan 5 years during the freedom struggle and was lodged in variousjails. It is stated that after 1986, the petitioner made certainrepresentations and there was no response from the respondent andthus he approached this Court. 15.The learned counsel for the petitioner fairly brings tomy notice the note to clause 9 of the Scheme requires that thecertifier veteran freedom fighters in respect of undergroundsuffering should belong to the same administrative union. That is,according to her, both the certifier and the person, who remainedunderground should belong to same District. It is stated that bothThiru.Gangadhara Parasuram and Thiru.A.B.Nagier belonged to the sameDistrict, to which the petitioner belongs. That is all belonged toMadurai District. 16.In any event, note to clause 9 could not be given such arestricted meaning, particularly, the person who remainedunderground, could migrate from one area to another area, in order toevade the arrest of police. Hence, this fact should be taken intoaccount while considering the certificate under clause 9(b)(2) of theScheme. If a certificate by a veteran freedom fighter is issuedstating that the concerned person remained underground during thefreedom struggle, that itself is sufficient to grant pension. In thiscase, the petitioner is now aged 86 years. He participated in thefreedom struggle and remained underground for about three years,evading arrest from British police, as per the certificates given bythe aforesaid four freedom fighters. 17.In these circumstances, the writ petition is disposed ofwith a direction to the respondent to consider the review applicationmade by the petitioner on 01.11.1986 and pass appropriate ordersrelating to grant of pension under SWATHANTHIRA SAINIK SAMMAN PENSIONSCHEME, 1980, in the light of the observations made above, within a https://hcservices.ecourts.gov.in/hcservices/ period of four weeks from the date of receipt of a copy of thisorder. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTKToThe Secretary to Government Government of India Ministry of Home AffairsLok Nayak Bhawan,Freedom Fighters' Division,New Delhi – 110 003.1 cc To Mr.J.Ashok, Advocate, SR.56862W.P.NO.17403 OF 2009BV(CO)sra 06/08/2010