Full Text
JUDGMENT
Through: Mr. I.C. Mishra, Advocate
Through: Ms. Saroj Bidawat, Advocate
1. Whether the Reporters of local papers may Yes be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest? KAILASH GAMBHIR, J. *
1. By way of this writ petition, the petitioner Sh. Satish Chandra Mishra seeks directions for setting aside rejection Order dated 2009:DHC:2413 23.7.2001, denying the Swatantrata Sainik Pension to the petitioner, passed by the respondent no.2. The petitioner has also sought directions against the respondents for grant of pension as per SSS Pension Scheme 1980.
2. The facts as set out in the petition are as under: The petitioner is a senior citizen. He had participated in Quit India Movement i.e. also known by August Movement, 1942 and due to participation in that movement a criminal case was registered against the petitioner and his colleagues as G.R. No. 75/42 dated 20.08.42 titled as Emperor versus Hira Singh and others and the petitioner was named accused in the above mentioned case, but the petitioner was not arrested at the place of occurrence and absconded. An NBW was issued against the petitioner, despite that the petitioner was not arrested. Proceedings under Sections 82-83 Cr.P.C. took place against the petitioner and declared P.O. Upto December, 1943 the petitioner was underground due to apprehension of arrest by the English Government and the petitioner was active and he had been working for the freedom of India along with his other colleagues. The petitioner applied for Swatantra Sainik Samman Pension Scheme 1980-81 in the office of respondent Nos. 2 and 3. State of Bihar/respondent No. 3 recommended the name of the petitioner for grant of S.S.S. Pension after due consideration and verification but still the respondent No. 2 had rejected the application of the petitioner. Aggrieved with the said actions of the respondents, present petition has been filed by the petitioner
3. The contention of counsel for the petitioner was that the Freedom Fighter Scheme was introduced by the Govt. of India in 1972 in which the normal eligibility fixed for grant of pension was six month imprisonment while participating in Freedom Movement and the same was relaxed under S.S.S. Pension Scheme, 1980-81. The counsel urged that the said 1980-81 scheme also provided for those freedom fighters who had absconded due to registration of a criminal case. Under this scheme petitioner had applied for grant of S.S.S. Pension being an absconder and accordingly mentioned the same in his application and the same was also certified by the prominent freedom fighters who were his colleagues as required under the said scheme. The counsel maintained that the petitioner did not mention the criminal case number as at the time of filing the said application under the scheme he could not recollect it but later upon his remembering the same, which was also confirmed by his friend Hira Singh, a certified copy of the same was applied for but no records were available for the same and this fact is admitted by both, the petitioner and Hira Singh, by way of affidavit. The counsel urged that upon the receipt of the verification report of the case bearing GR No. 75/1942, the respondent no. 2 vide letter no. 525/General dated 29/11/1995 revealed that the said records were destroyed on 24/12/1949; the case started in 1942 and culminated on 20/3/1943 and Hira Prasad Singh was the main accused therein. The counsel submitted that the application of the appellant was rejected by the respondent no. 2 vide orders dated 23/7/2001 on the ground that the petitioner did not submit sufficient documents to prove his undergrounding upon the case having been registered against him. It was also stated by the respondent no.2 that the application made by the petitioner was an after thought and the fact that the petitioner did not mention the criminal case number in the application led to an adverse inference and thus the conditions mentioned in the S.S.S. Pension Scheme were not fulfilled by the petitioner. The counsel contended that the said act of rejection of the application of the petitioner is unconstitutional and violative of principles of equality enshrined in Art. 14 of the Constitution and the respondent did not consider the documents submitted by the petitioner in their true spirit. The counsel also averred that the petitioner himself met the respondent no. 2 on 11/8/2001 and gave an application for reconsideration but no action has been taken on the said application and therefore, petitioner was forced to send a legal notice dated 26/4/2004 to respondent no. 1. The counsel relied on following judgments in support of his contentions:
1. Mukund Lal Bhandari & Ors. Vs. UOI & Ors. – AIR 1993 SC 2127;
2. Smt. Subhadrabai vs. UOI – 86 (2000) DLT 678; and
3. Kachru vs. UOI – 2001 (I) AD (Delhi) 364
4. Per contra counsel for respondent no. 1 submitted that to prove underground sufferings, the scheme itself mentions the primary and secondary evidences, which are relevant and should be adduced by the applicants. The counsel maintained that The claim of underground suffering is considered subject to furnishing of the following evidence:-
(i) Documentary evidence by way of Court‟s /Govt.‟s 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 nonavailability 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.
5. The counsel averred that the petitioner neither submitted the NBW‟s issued against him and nor even the NARC, which was issued to him as per the reports. The counsel further urged that mere production of the report and affidavits by fellow freedom-fighters is not sufficient to avail benefits under the scheme. The counsel also contended that the case bearing GR No. 75/42 bore the name of Sh. Hira Prasad Singh and the contention of the petitioner that he falls in the category of „others‟ is of no assistance, as it is well settled that a person cannot claim parity on being in the category of „others‟. The counsel relied on judgment in Mukund Lal Bhandari & Ors. Vs. UOI & Ors. – AIR 1993 SC 2127, in support of her contentions.
6. I have heard counsel for the parties and perused the record.
7. During the Silver Jubilee year of Independence a Central Scheme for grant of pension to freedom fighters and their eligible dependents (Where freedom fighters have already expired) was introduced by Government of India with effect from 15.08.1972. In 1980, the Scheme was liberalized and renamed as “Swatantrata Sainik Samman Pension Scheme, 1980” (the Scheme) and made effective from 01.08.1980.
8. All the persons who participated in the freedom movement in some way or the other are not eligible for Samman Pension. Only following category of freedom fighters are eligible for the Samman Pension under the Scheme subject to furnishing of the specified evidences:- Eligible dependents of martyrs: - A martyr is a person who died or who was killed in action or in detention or was awarded capital punishment due to participation in the freedom struggle of India. Relevant documents from official records and newspapers of the relevant time are considered as evidences in such cases. Imprisonment:- A person who had suffered minimum imprisonment of six months (3 months in case of women, SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidences:- (a) Imprisonment/detention certificate from the concerned jail authority, District Magistrate or the State Govt. indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release. (b) In case records of the relevant period are not available, the secondary evidences in the form of 2 co-prisoner certificates (CPC) from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting or Ex. M.P./ M.L.A., only one certificate in place of the two is required. Underground: - A person who on account of his participation in freedom struggle remained underground for more than six months provided he was;
9. As regards, power of judicial review exercised by this Court under Art. 226 of the Constitution of India, Hon'ble Supreme Court in the case of Union of India Vs Mohan Singh and others. (JT 1996(8) S.C.341) has held - "This Court in Mukand Lal Bhandari and others Vs. Union of India and others. [(1993) SUPP. 3 SCC 2 (para 6)] had held, as regards the sufficiency of the proof, that he Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners they had produced in support of their claim, and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly."
10. The issue again came up before the Apex Court in the case of Union of India Vs. R.V.Swamy Air 1997 SC 2069. Hon'ble Supreme Court, after considering the issue at length, held - "In this case, the evidence does indicate that there is no proof of any warrant issued against the respondent as a proclaimed offender nor is there any evidence of actual proof indicating actual sentence." ( para[7]) "Under these circumstances, the reliance on the certificate issued by the persons mentioned in the judgement of the High Court is a matter of appreciation of evidence." ( para 8) "In view of the above consideration, it being a pure appreciation of evidence, the High Court was not justified in directing grant of freedom fighter pension to the respondent." ( para 10) "Of late, large number of cases have been coming up quite frequently for grant of Freedom Fighter Pension on the basis of the certificate issued by some pensions with status of freedom fighters and are by and large not found to be acceptable to the Government of India. Since several matters are coming up to this Court, It is for the Government of India to re-consider the matter and to lay down appropriate clear guidelines for the so called freedom fighters who issued certificates to persons who come forward for Freedom Fighters Pension. Learned Counsel for the respondent has stated that since the State Government has recommended the case of deceased - respondent for grant of Freedom Fighter Pension, the respondent widow may be given liberty to approach the State government in that behalf. Liberty is given to her to approach the State Government. It is for the State Government to consider the application according to their guidelines and dispose it of on merits." ( para 11)
11. Therefore, while making judicial review of administrative decision, the court is not supposed to sit as Appellate Authority, and substitute its own findings in place of findings recorded by the authorities. As is often said, the court while making judicial review has to see the correctness or otherwise of the decision making process and not the correctness of the decision itself. Where the court finds that there were materials available before the authority, on the basis of which the impugned decision could be arrived at, it is not supposed to go in to the question of adequacy of the material.
12. In the instant case, the petitioner applied for SSS pension under the 1980-81 Scheme in the office of respondent Nos. 2 & 3. Shri Ranjan Kumar Gupta on behalf of respondent No. 3 gave his statement by way of affidavit admitting that the petitioner claimed pension based on underground suffering during freedom movement from August, 1942 to December, 1943 and in support of his claim petitioner produced certificate of the non-availability of Court record issued from Deoghar record room and personnel knowledge certificate of Shri Dhokal Mahte and Shri Parmanand Singh. He also stated that the matter of the petitioner was put up before the meeting of District committee held on 15/16.10.92 and the said committee recommended his case for pension and accordingly, same was put up before the State Advisory Committee held on 20/21.8.1993. Since his case was recommended by State Advisory Committee for pension, therefore, certificate issued by State Government was sent to Government of India vide letter NO. 1827 dated 28.6.1994. Surprisingly, the Government of India vide order dated 23.7.2001 rejected the claim of the petitioner. The said order is reproduced as under:- “To, Satish Chandra Mishra S/o Late Braj Mohan Mishra Village Mishra Jamua Post SangramLodia, P.S. Jasidih Dist. Deoghar Jharkhand In the matter of Subject: Swatantra Sainik Samman Pension Sir, I hgave to say on the above mentioned subject matter regarding or application dated 11/04/2002 after consideration I have been directed to communicate you that due to below menionted reasons your grant of S.S.S. Pension cannot be possible because
1. That you have not mentioned in your application about your under ground suffering period. You have submitted an affidavit in support of your underground suffering in June, 1993 after 13 years in that you have mentioned the underground suffering from August, 1942 to December, 1943 whichis after thought.
2. That you have not claimed as an accused in GR No. 7542.
3. That Shri Bhuvneshwar Pandey has not mentioned the reason of your absconding in his personal knowledge certificate as per N.A.R.C. of GR 7542 it had registered agasint Hira Singh and there is no account about participation of other accused on this basis your participation is not proved after all case was disposed of on 20/03/43.
4. As per provisions of S.S. Pension Scheme 1980 anybody may be suffered as an absconder 6 months or more being participant of freedom struggle because (a) he was proclaimed offender (b) prize was announce for his arrest/death or (c) warrant was issued but not served. You have not submitted any Government authentic documents in ministry which proved that your 6 months or more under ground suffering. Yours faithfully Sd/- Virendra Kumar Under Secretary Govt. of India”
13. According to the SSS Pension Scheme, to prove underground suffering the applicant has to furnish following documents as evidence:- “(i) Documentary evidence by way of Court‟s /Govt.‟s 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.”
14. The petitioner had furnished non-availability record certificate (NARC) and also Personal Knowledge Certificate (PKC) of Shri Dhokhal Mahte and Shri Parmanand Singh, both were veteran freedom fighters. Clearly, the petitioner fulfilled the aforesaid second condition.
15. It is no more res integra that the standard of proof required in cases relating to SSS Pension is not to be proved beyond reasonable doubt and mere preponderance of probabilities is sufficient. In this regard in Gurdial Singh vs. UOI (2001) 8 SCC 8, the Hon‟ble Apex Court observed as under:-
16. The ground of rejection given in the order dated 23.7.2001 of Government of India that there is nothing to prove involvement of the petitioner in case bearing GR No. 7542, I feel that the certificates of HIra Singh, Shri Dhokhal Mahte and Shri Parmanand Singh are sufficient to prove that the petitioner was involved in case bearing No. GR No. 7542. Furthermore, the verification report dated 29.11.1995 is also material. Also, the petitioner need not prove his case beyond reasonable doubt as discussed above & all that is required by the Government is to see that the factum of eligibility is proved by preponderance of probabilities.
17. Another ground for rejection was that the petitioner took 13 years to submit an affidavit in support of his claim that he underwent an underground suffering from August, 1942 to December, 1943. It is a matter of common knowledge that those persons who participated in freedom struggle have now grown old, the present petitioner, who participated in quit India Movement of 1942 is of 90 years of age. We cannot expect such persons to remember minutely everything. In this regard, the Hon‟ble Apex Court has in Mukund Lal Bhandari & Ors vs UOI & Ors. AIR 1993 SC 2127 in para 4 has observed as under:-
18. In view of the observations made by the Supreme Court in the aforesaid case it is manifest that the delay in submission of evidence etc. regarding the claim is no ground for rejection of their claim.
19. Be that as it may, even an ordinary prudent man would know that in the absence of any Court record to prove the petitioner having suffered underground sufferance, only his colleagues and contemporaries could have helped him in remembering it. Thus delay is no ground for rejection.
20. On considering the aforesaid discussion and the factual scenario of the present case and also considering that respondent No. 3 had recommended and certified the petitioner for SSS Pension, I do not find any reason for the UOI to decline petitioners request for SSS Pension.
21. Today as we freely move around in our country without anyone questioning or imposing any kinds of restrictions on us we feel satisfied and contended. But this satisfaction is due to the efforts made by our freedom fighters to free our country from the British rule. It is because of our freedom fighters that today we are enjoying our freedom. Their satyagrahas, sacrifices, and tortures have resulted in the freedom that we enjoy today in our motherland India. Free India is a gift to each one of us from these freedom fighters. As a mark of respect and to pay are gratitude to them the Govt. started the SSS Pension scheme. But cases like the present one show the apathy and pithiness of our Govt. on one hand it launches SSS Pension Scheme and on the other hand it arbitrarily denies the same to such freedom fighters who are eligible for it. The govt. should not deal with such matters in an arbitrary and shabby manner. These freedom fighters who now are very aged should not be made to run from pillar to post for grant of SSS Pension for which they are eligible. The govt. should be little more considerate and thoughtful while dealing with such cases.
22. In view of the above discussion, the rejection order dated 23.7.2001 passed by respondent No. 1 UOI is set aside. The respondent No. 1 is directed to grant SSS Pension to the petitioner from the date of the application i.e. 3.2.1981 within two months from today.
23. In view of the above discussions, the present petition is allowed with aforesaid directions. May 30, 2009 KAILASH GAMBHIR, J.