Union of India Vs. R.V. Swamy @ R. Vellaichamy [1997] INSC 359 (31 March
1997)
K.
RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
O R D
E R Substitution allowed.
Leave
granted. We have heard learned counsel on both sides.
This
appeal by special leave arises from the judgment of the High Court of Madras,
made on 3.1.1996 in writ petition No.11957/94. The High Court, on appreciation
of evidence, has observed in paragraph 9 of the judgment as under:
"
I have carefully considered the submissions of learned counsel for the
petitioner and the respondents.
Admittedly,
the petitioner was sanctioned freedom fighters pension by the state Government.
Five prominent Freedom Fighters have given certificates who were eligible to
give such certificates under the very scheme and nothing is stated to discredit
these certificates. In view of the certificates produced by the petitioner
though the records for the relevant period of 1942-43 were not available since
they were destroyed, the certificated given by the prominent freedom fighters
are to be accepted. Added to this, the claim of the petitioner also finds place
in the book published by the Government of Tamil Nadu and it further supports
the claim of the petitioner that he suffered imprisonment for a period of two
months in Alipuram Jail. The report of the collector of Madurai that no record as to arrest warrant
is available or that the arrest warrant was issued against the petitioner
cannot be taken as conclusive because there is nothing to show that as to what
is the basis for such a statement. If it were to be a certificate issued bu the
authorities or the Court which had issued arrest different matter.
At any
rate, even the same collector recommended for the sanction of Central Pension
to the petitioner. Even on earlier occasion, the state Government had
recommended for grant of central Freedom Fighters pension to the petitioner as
can be seen from the letter dated 22.1.1982 addressed to the first respondent.
Thus, having regard to overall thus, having regard to overall circumstances of
the case and the materials placed on record, I am of the opinion that the
petitioner is entitled to grant of pension under the SSS pension scheme of the
central Government.
Having
regard to the fact that the petitioner has been struggling to get pension from
14.12.1981 and the petitioner made an application to the first respondent for
the third time and in view of the fact that this court remanded the case of the
first respondent did not consider the claim of the petitioner, having regard to
the guidelines and directions given in Thangavela vs. The Government of India
(1994(1) MLJ 622), I do not think that it is appropriate to direct the first
respondent again to consider the case of the petitioner. In view of the
materials placed on record, the petitioner is entitled to get the pension
sought for." The High Court directed grant of pension to R.V. Swamy @ R. vellaichamy
who has expired. The legal representatives have been brought on record for
grant of pension under the central Freedom Fighters pension scheme postulates
as under:
"4.
Who is eligible:
For
the purpose of grant of Samman Pension under the scheme, a freedom fighter is:
(a) A
pensioner who had suffered a minimum imprisonment of six moths in the mainland
jails before Independence. However, ex-INA personnel will be
eligible of pension if the imprisonment/detention suffered by them was outside India.
(b)
The minimum period of actual imprisonment of eligibility of pension has been
reduced to three months, in case of women and SC/ST freedom fighters form
1.8.1980.
IN
Explanation:4. Broken period of imprisonment will be totaled up for computing
the qualifying period.
(b) A
person who remained underground for more than six months provided he was :
1. A
proclaimed offender; or
2. One
on whom an award for arrest/head was announced; or
3. One
for whose detention order was issued but not served." The question,
therefore, is: whether the view taken by the High Court is correct in law ? This
Court in Mukund Lal Bhandari & Ors. vs. Union
of India & Ors. {1993 Supp.(3) at 5] held thus:
"
As regards the sufficiency of the proof, the 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
petitioner, they had produced in support of their claim an pronounce upon their
genuineness. It is the function of the Government to do so. we would,
therefore, direct accordingly." In Union
of India vs. Mohan Singh & Ors. [(1966)
10 SCC 351] the High court directed the Government to consider the case of the
respondent therein for grant of Freedom Fighter Pension. The respondents
therein relied upon a certificate of co-prisoner and an MLA and sought pension
on that basis.
The
Government considered the certificate and found the same as not acceptable.
When the second writ petition was admitted on the ground that the certificate
of MLA was sufficient proof, This court following the judgment in Mukund Lal Bhandari's
case has held in paragraph 5, as extracted earlier.
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 .
Under these
circumstance the reliance on the certificate issued by the persons mentioned in
the judgment of the High Court is matter of appreciation of evidence.
The
question is: whether the High court is right in appreciating the evidence and
to conclude that the respondent is freedom fighter to claim Freedom Fighter
pension. The Government, in fact, has considered that evidence and stated as
under:
"In
compliance of the above direction of the Hon'ble High Court your case has again
been re- examined. It is, However, regretted that it has not been possible to
granted that it ha not been possible to grant you pension for the following reasons
:
(i)
The Government of Tamil Nadu has reported that no warrant of arrest was issued
against you and no other acceptable documentary evidence was available in proof
of your claimed underground suffering for more than six months.
(ii)
No jail record for the claimed imprisonment period from 2nd week of September
1941, to Ist week of November, 1941 has been furnished.
(iii)
Since no warrant of arrest etc. was issued against you as reported by the state
Government.
The
certificates from S/Shri P.S. Lakshmipathy Raju, A.B. Nagier and Dr. T. khannan
D. Ramakrishnan, I, Mayandi Bharati and A.K. Sonnamurthu are not acceptable,
because for sanction of pension person should have remained underground against
some executive of the Government before issue of arrest etc.
(iv)
The non-availability of record certificate with reference to issue of warrant
of arrest etc.
against
you as submitted by you, has been issued in 1988 wherein you did not mention
the specific detail of case No. etc. in your application for issue of warrant
etc. Since earlier in 1985 state Government have already intimated that no
arrest warrant etc. was issued against you. In view of these circumstances NARC
cannot be accepted." 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.
Of
late, large number of cases have been coming up quit frequently for grant of
Freedom Fighter pension on the basis of the certificates issued by some persons
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 dawn
appropriate clear guidelines for the so-called freedom fighter who issue
certificated to persons who come forward for Freedom Fighter pension. Learned
counsel for the respondent Fighter pension. Learned counsel for the respondent
has stated that since the state Government has recommended the case of the
deceased-respondent-window may be given liberty to approach the state
Government in that behalf. Liberty is
given to her to approach 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 The appeal is
accordingly allowed. No costs.
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