Gurdial
Singh Vs. Union of India & Ors [2001] Insc 507
(25 September 2001)
M.B.
Shah & R.P. Sethi. Sethi,J.
Leave
granted.
The
appellant who claims to be a freedom fighter states to have been subjected to
harassment and embarrassment by the respondent Authorities for his fault of
preferring claim for the grant of pension under the scheme known as Freedom
Fighters Pension Scheme, 1972 (hereinafter referred to as "the
Scheme"). After he succeeded, with the assistance of judicial process, in
obtaining an order for the grant of pension at the rate of Rs.3000/- per month
with effect from 29th April, 1998 (Annexure P-1), he was deprived of the same
allegedly for his fault of again approaching the court for the grant of
aforesaid pension with effect from the date of his application in terms of the
mandate of this Court in Mukund Lal Bhandari & Ors. vs. Union of India & Ors. [1993 Suppl. (3) SCC 2]. The
respondent-Union of India not only cancelled the pension sanctioned in favour
of the appellant but also directed the recovery of the amounts paid to him in
pursuance to the earlier orders passed in his favour. His petition for redressal
of grievances was dismissed by the High Court vide the impugned order,
allegedly on the ground of there being disputed questions of fact.
The
facts emerging from the documents filed with this appeal are that the
appellant, claiming to be a freedom fighter, preferred a claim for the grant of
pension vide his letter dated 13.3.1973. In support of his claim, the appellant
produced a copy of the driving licence issued in Thailand. It is pertinent at this stage to note that the appellant
had claimed to be a driver in the Indian National Army (hereinafter referred to
as "INA") raised by Netaji Subhash Chander Bose. As no action was
taken, he sent a reminder on 20.8.1974 to the Secretary, Ministry of Home
Affairs, Government of India. In response to the information sought to be
furnished in terms of the letter of the respondent dated 7th September, 1974, the appellant sent the requisite proforma
on 9.2.1975. On 11.2.1977, the appellant also sent his personal affidavit
mentioning the names of the detention camps in Bangkok and Singapore where he was kept as INA prisoner
of war for more than six months. He also sent two affidavits of the co-prisoners
who were also detained in the said prison, besides furnishing of photostat copy
of the INA driving licence No.13/1206. The appellant despatched, in original,
the certificate issued in his favour by Captain Bishan Singh Sanghai of INA
regarding his training in weapon in 4th company of the INA. Despite furnishing
of all information, his case was rejected by the Director, Ministry of Home
Affairs on 7.4.1995 (Vide Annexure P- 7). As despite service of notice he was
not granted the relief, the appellant was forced to file a Writ Petition
No.12350 of 1996 in the High Court which was disposed of by setting aside the
impugned order (Annexure P-7) with a direction to the respondents to re-decide
his case in the light of the documents produced in the High Court.
Thereafter
he appeared before the concerned authorities. The Government of Punjab vide its
order dated 29th April, 1998 accorded the grant of provisional 'Swatantrata Samman
Pension' to the appellant at the rate of Rs.1500/- per month w.e.f. 25.4.1998 (Annexure
P-9). It was mentioned in the aforesaid order that the pension will be for the
life time of the recipient and would be in addition to the pension, if any,
sanctioned by the Central Government. The Central Government vide its order
dated 22nd May, 1998 (Annexure P-10) also conveyed to
the appellant the sanction of the President to grant him provisional pension at
the rate of Rs.3000/- per month with effect from 29.4.1998.
It was
provided that the pension shall be for the life time of the recipient and be in
addition to the pension, if any, sanctioned by the State Government.
Not
satisfied with the grant of pension with effect from 29.4.1998, instead of from
the date of the application i.e. 12.3.1973, the appellant filed Writ Petition
No.12863 of 1999. The aforesaid writ petition was allowed with directions to
the respondents to consider the appellant's case for grant of pension from the
date of his application in the light of the observations made in the order of
the court and decide his claim within two months. Instead of granting relief to
the appellant for the grant of pension with effect from the date of his
application, the respondents issued a show cause notice on 23rd February, 2000
calling upon him to show cause as to why his pension be not cancelled. He filed
his detailed reply on 6th
March, 2000 and the
Government of India on 1.11.2000 cancelled its earlier order by which the
appellant was granted pension with effect from 29.4.1998.
Justifying
their action, the respondents have filed counter affidavit stating therein that
as discrepancies and contradictions were found in the claim of the appellant,
the order granting him pension was cancelled. The respondents further submitted
that pension had earlier been wrongly granted to the appellant. The
discrepancies and contradictions noticed by the authorities have been detailed
as hereunder:
"(a)
He indicated in his application that he joined Indian National Army in Sept
1942. It is a historical fact that Indian National Army headed by Netaji came into
existence only in Jul/August in 1943, when civilians were also admitted to it.
(b)
Regarding his claim of being the personal driver of Netaji he subsequently
clarified that he is an illiterate person and the typist had included
"personal driver" by mistake. However, he did not clarify as to why
he repeated the same mistake in a Press Interview appearing in "The
Tribune" dated 10.9.96.
(c)
His claim that before joining Indian National Army he was working with the PWD
Department Government of Malaya in 1937. This claim does not appear to be
correct, as he was only 15 yrs of wage at the time.
(d) He
enclosed his original driving licence issued at Bangkok on which "INDIAN NATIONAL ARMY" was found to be
inserted later and his photograph on it was also appeared to have been fixed
later. A Driving Licence is issued for the qualification of the school of
driving and not for participation in a particular orgnisation.
(e) He
submitted two photographs in support of his claim, which show him wearing Khaki
uniform and standing besides a Malayan vehicle. He also produced a medal.
These
cannot be considered proof of his suffering of the kind and the period
recognized by Swatantrata Sainik Samman Pension Scheme. The copy of the
Swatantrata Sainik Samman Pension Scheme is annexed as Annexure R-1." The
scheme was introduced with the object of providing grant of pension to living
freedom fighters and their families and to the families of martyrs. It has to
be kept in mind that millions of masses of this country had participated in the
freedom struggle without any expection of grant of any scheme at the relevant
time. It has also to be kept in mind that in the partition of the country most
of citizens who suffered imprisonment were handicapped to get the relevant
record from the jails where they had suffered imprisonment. The problem of
getting the record from the foreign country is very cumbersome and expensive.
Keeping in mind the object of the scheme, the concerned authorities are
required that in appreciating the scheme for the benefit of freedom fighters a
rationale and not a technical approach is required to be adopted. It has also
to be kept in mind that the claimants of the scheme are supposed to be such
persons who had given the best part of their life for the country. This Court
in Mukand Lal Bhandari's case(supra) observed:
"The
object in making the said relaxation was not to reward or compensate the
sacrifices made in the freedom struggle.
The
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. Yet 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. It should not further be forgotten that now its benefit is made
available irrespective of the income limit.
Secondly,
and this is equally important to note, since we are by this decision making the
benefit of the scheme available irrespective of the date on which the
application is made, it would not be advisable to extend the benefit
retrospectively. Lastly, the pension under the present Scheme is not the only
benefit made available to the freedom fighters or their dependents. The
preference in employment, allotment of accommodation and in admission to schools
and colleges of their kith and kin etc., are also the other benefits which have
been made available to them for quite sometime now." The court
categorically mentioned that the pension under the scheme should be made
payable from the date on which the application is made whether it is
accompanied by necessary proof of eligibility or not.
The
standard of proof required in such cases is not such standard which is required
in a criminal case or in a case adjudicated upon rival contentions or evidence
of the parties. As the object of the scheme is to honour and to mitigate the
sufferings of those who had given their all for the country, a liberal and not
a technical approach is required to be followed while determining the merits of
the case of a person seeking pension under the scheme. It should not be
forgotten that the persons intended to be covered by 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. The case of the claimants under this scheme is required to be
determined on the basis of the probabilities and not on the touch-stone of the
test of 'beyond reasonable doubt'. Once on the basis of the evidence it is probabilised
that the claimant had suffered imprisonment for the cause of the country and
during the freedom struggle, a presumption is required to be drawn in his favour
unless the same is rebutted by cogent, reasonable and reliable evidence.
We
have noticed with disgust that the respondent Authorities have adopted a
hyper-technical approach while dealing with the case of a freedom fighter and
ignored the basic principles/objectives of the scheme intended to give the
benefit to the sufferers in the freedom movement. The contradictions and
discrepancies, as noticed hereinabove, cannot be held to be material which
could be made the basis of depriving the appellant of his right to get the
pension. The case of the appellant has been disposed of by ignoring the mandate
of law and the Scheme. The impugned order also appears to have been passed with
a biased and close mind completely ignoring the verdict of this Court in Mukund
Lal Bhandari's case. We further feel that after granting the pension to the
appellant, the respondents were not justified to reject his claim on the basis
of material which already existed, justifying the grant of pension in his favour.
The appellant has, unnecessarily, been dragged to litigation for no fault of
his.
The
High Court has completely ignored its earlier judgments in CWP No.3790 of 1994
entitled Mohan Singh vs. Union of India decided on 1.6.1995 and CWP 14442 of
1995 decided on 11.12.1995.
We are
satisfied that the order of the respondent Authorities impugned before the High
Court (Annexure P-14) dated 1.11.2000 is liable to be set aside and the
appellant entitled to the grant of relief of pension. However, keeping in view
the lapse of time and peculiar circumstances of the case, we are not inclined
to grant him the pension with effect from 12.3.1973 as claimed and feel that
the ends of justice would be met if the appellant is granted pension with
effect from March, 1996 when he was forced to file Writ Petition No.12350 of
1996.
Accordingly
the appeal is allowed by setting aside the order of the High Court impugned in
this appeal and the order of the respondents dated 1.11.2000 (Annexure P-14).
The appellant is held entitled to the grant of pension by the State of Punjab
and the Union Government as determined vide Annexures P-9 and P-10 but with
effect from March, 1996. The arrears shall be calculated and paid to the
appellant positively within a period of six weeks from today, failing which he
is held entitled to interest at the rate of 12% per annum from March, 1996 till
the date, arrears are actually paid. The appellant is also held entitled to the
payment of costs quantified at Rs.5,000/- ......................J.
(M.B.
SHAH) ......................J.
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