Union Of India Vs. Shri Avtar Singh  Insc 422 (18 July 2006)
Pasayat & Lokeshwar Singh Panta Arijit Pasayat, J.
out of SLP (C) No. 5367 of 2006)
Union of India calls in question legality of the judgment rendered by a
Division Bench of the Punjab and Haryana High Court dismissing
the Letters Patent Appeal filed by it. Learned Single Judge whose order was
assailed before the Division Bench had held that the respondent was entitled to
freedom fighters pension under the Swatantrata Sainik Samman Pension Scheme,
1980 (in short 'scheme').
facts in a nutshell are as follows:-
respondent claimed that he had participated in the freedom struggle of the
country and had suffered imprisonment and was, therefore, entitled to pension
under the scheme. Earlier there was a Freedom Fighter's Pension Scheme, 1972
(hereinafter referred to as the '1972 scheme').
later Scheme was introduced in 1980. Though initially pension was granted to
the respondent, by order dated 18.12.2000, it was indicated on inquiry that the
respondent had indicated two different versions while claiming pension under
the Scheme. In the application accompanied by an affidavit filed before the
State of Punjab, the period of imprisonment was indicated
to be 20.10.1942 to 20.10.1943.
different period i.e. 20.10.1942 to 15.8.1943 was indicated in the application
and the affidavit filed before the Union.
It was also noted that the respondent had accepted the above position to be
correct, but attributed the same to his illiteracy. The pension sanctioned to
him was cancelled and he was directed to refund the amount which had already
been paid to him. A writ petition was filed before the Punjab and Haryana High Court. It was
initially dismissed. The matter was carried before this Court in Civil Appeal
No.8388 of 2001.
the High Court's order was practically unreasoned, this Court directed the High
Court to hear the matter afresh and dispose of the same by a reasoned order.
The matter was heard afresh. The High Court noted the submissions of the
present appellant that one of the persons who had certified the imprisonment of
the respondent as a co-prisoner was black- listed. He had issued certificates
to a large number of persons. Though the High Court accepted that there was
difference in the dates indicated in the two affidavits, it was held to be
inconsequential. Accordingly, direction was given for grant of pension. The
matter was carried in appeal by a Letters Patent Appeal, which as noted above,
support of the appeal, learned counsel for the appellant submitted that the
application filed by the respondent was incomplete. The requirement in law is
that jail certificate is to be filed. In the instant case no such certificate
was filed and on the contrary certificate from a person whose credentials were
doubtful was filed. The jail certificate in support of jail suffering has to be
based on official records of the jail. In case jail certificate is not
available, a certificate called Non-Availability of Records Certificate
(shortly known as NARC) from the concerned authorities has to be filed. Only if
such certificate is filed the Co-prisoners Certificate from two co-prisoners of
the enumerated category can be considered.
the High Court relied on Gurdial Singh vs. Union of India and Ors. (2001(8) SCC
8) to hold that the strict rules of evidence are not to be applied in such
cases, the true parameters to be adopted have been indicated in W.B. Freedom
Fighters' Organisation v. Union of India and Ors. (2004 (7) SCC 716). Since
the authorities on consideration of the material on record held that the
respondent was not entitled to pension, the High Court should not have
interfered in a writ petition, more particularly, when disputed questions of
fact are involved.
counsel for the respondent in response submitted that the requirement in law is
imprisonment for six months. If facts stated in either of the certificates are
taken into account, the period indicated is more than six months. A person who
is practically illiterate and is of advanced age cannot be expected to remember
all the details. The High Court has taken noted of these facts and, therefore,
no interference is called for.
object of the scheme was highlighted by this Court in Mukundlal Bhandari v.
Union of India and Ors. (AIR 1993 SC 2127). The same reads as follows:
object was to honour and where it was necessary also to mitigate the sufferings
of those who had given their all for the country in the hour of its need. In
fact, many of those who do not have sufficient income to maintain themselves
refuse to take benefit of it since they consider it as an affront to the sense
of patriotism with which they plunged in the freedom struggle. The spirit of
the scheme being both to assist and honour the needy and acknowledge the
valuable sacrifices made, it would be contrary to its spirit to convert it into
some kind of a programme of compensation.
that may be the result if the benefit is directed to be given retrospectively
whatever the date the application is made. The Scheme should retain its high
objective with which it was motivated..." Again in Gurdial Singh's case
(supra), this Court observed:
should not be forgotten that the persons intended to be covered by the scheme
have suffered for the country about half a century back and had not expected to
be rewarded for the imprisonment suffered by them. Once the country has decided
to honour such freedom fighters, the bureaucrats entrusted with the job of
examining the cases of such freedom fighters are expected to keep in mind the
purpose and object of the scheme...." We are in respectful agreement with
the view expressed in Mukundlal's and Gurdial Singh's cases (supra). The
genuine freedom fighters deserve to be treated with reverence, respect and honour.
But at the same time it cannot be lost sight of that people who had no role to
play in the freedom struggle should not be permitted to benefit from the
liberal approach required to be adopted in the case of the freedom fighters,
most of whom in the normal course are septuagenarians and octogenarians.
aspects were highlighted in Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. (2005 (7) SCC 605) In W.B.
Freedom Fighters' Organisation's case (supra), it was inter alia observed as
Government of India had announced a scheme known as the Swatantrata Sainik Samman
Pension Scheme, 1980 (hereinafter called "the Scheme") under which
freedom fighters were to receive pension as mentioned in the Scheme. Any person
who had suffered a minimum imprisonment of six months in the mainland jails
before independence or in the case of SC/ST freedom fighter who had suffered
minimum imprisonment for three months is eligible to receive the pension. The
manner of proving claims is as follows:
applicants should furnish the documents indicated below whichever is applicable
in order to prove his claimed sufferings for grant of pension under the Scheme:
from the jail authority, District Magistrate or the State Government concerned,
indicating period of sentence awarded, date of admission, date of release and
reasons for release, a non-availability of records certificate (NARC) from the
authorities concerned along with co-prisoners' certificates (CPC) as under:
co-prisoners' certificates from the freedom fighter pensioners who had a proven
jail suffering of one year Or
co-prisoner's certificate from a sitting MP or MLA or from an ex-MP or an
ex-MLA specifying his jail period and that of the applicant (Annexure I in the
evidence by way of court's/government's orders proclaiming the applicant as an
offender, announcing an award on his head or for his arrest or ordering his
detention. In the absence of such certificates from official records, a
non-availability of records certificate from the authorities concerned along
with a certificate from a prominent freedom fighter who had undergone
imprisonment for a period of at least two years or more." Thus, it is to
be seen that the applicant has to furnish a certificate from the jail
authority, District Magistrate or the State authorities indicating the period
of sentence awarded, date of admission, date of release and reasons for release
and in the absence of such a certificate a non-availability of records
certificate(NARC) along with a co-prisoners' certificate (CPC), namely, two
certificates from freedom fighters who had a proven jail suffering for one year
or one certificate from a sitting MP or MLA or an ex-MP or ex-MLA. In case of
persons having gone underground documentary evidence by way of proclamation of
the applicant as an offender, announcing an award for his arrest or an order of
absence of official record a certificate from a prominent freedom fighter, who
had undergone imprisonment for a period of at least two years, was to be given.
Having heard the
parties, even presuming that the petition was in effect for payment of pension,
we find that it is not possible for this Court to interfere as the Committee
has come to a conclusion on the basis of available material. The decision of
the Committee cannot be said to be perverse or one which no reasonable person
could arrive at. We, therefore, see no reason to interfere." Above being
the position, the High Court was not justified in granting relief to the
respondent-writ petitioner. One of the basic requirements was a certificate to
the effect that the jail records were not available unless jail certificate was
as noted above, was not the case here. On that score the application was
therefore, allow the appeal, set aside the order passed by the learned Single
Judge and the Division Bench.
the pension which has already been paid to the respondent shall not be
recovered. It is made clear that if the respondent files requisite authentic
documents and files a fresh application, the same shall be duly considered,
uninfluenced by the findings recorded in this case on the factual scenario
involved. No costs.