West Bengal Freedom
Fighters' Organization Vs. Union of India & Ors [2004] Insc 472 (20 August 2004)
S. N. Variava & G. P.
Mathur S. N. Variava, J.
By this Writ Petition, under Article 32 of the Constitution of India, the
Petitioners seek the following relief:
"To issue Writ/Order/Direction to the State Government to send reports
about the freedom fighters to the Union Government to expedite payment of
Freedom Fighters Pension from the commencement of the Scheme from 1.8.80 to the
petitioner organization being the freedom fighters." This Petition has
been filed by the Association whose members claim to be freedom fighters.
The 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 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:
"The applicants should furnish the documents indicated below whichever
is applicable in order to prove his claimed sufferings for grant of pension
under the Scheme.
(A) IMPRISONMENT/DETENTION :- Certificate from the concerned jail authority,
District Magistrate or the State Government, indicating period of sentence
awarded, date of admission, date of release and reasons for release, a
Non-availability of Records Certificate (NARC) from the concerned authorities
alongwith co-prisoners' Certificates (CPC) as under :- i) Two Co-prisoners'
Certificates from the freedom fighter pensioners who had a proven jail
suffering of one year.
or ii) One Co-prisoners' Certificate from a sitting MP or MLC or from an
ex-MP or an ex-MLA specifying his jail period and that of the applicant
(Annexure-I in the application form).
(B) Documentary 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 concerned authorities
alongwith 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
detention. In the 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.
All the members of the Petitioner Association had applied for pension. It is
their case that their applications were not being processed and that the State
Government was not doing anything.
This Court, by its Order dated 12th October, 2001, directed the State of West
Bengal to appoint a State Advisory Committee, if not already appointed, and
further directed the Committee to verify the cases of the members of the
Petitioner Association and communicate its opinion to this Court.
The State of West Bengal filed an affidavit on 4th February, 2002 wherein it was set out that the State Advisory Committee had considered the cases of all
and had rejected all the applications.
This Court by its Order dated 15th February, 2002 directed the State
Government to file a better affidavit giving full particulars regarding
verification. The State Government therefore filed another affidavit dated 22nd March, 2002 along with which they annexed a copy of the minutes of the meeting of the
State Advisory Committee, wherein it was, inter alia, recorded that the Verification
Report from DIG, IB/SP, DIB of the relevant districts had been obtained. It was
also observed that from the records available their claims were not
corroborated and that the applicants had not submitted official records as
required under the Scheme and had also not submitted NARCs as required under
the Scheme. It was stated that for these reasons the applications had been
rejected.
By an Order dated 20th November, 2003, this Court asked the Committee to
supply details in respect of each applicant which lead to the rejection of his
claim. Pursuant to this direction, an affidavit dated 6th January, 2004 has been filed. Along with this affidavit a chart giving the names of the
applicants, their claim, the report which was seen and the views of the
Committee have been set out. From this chart it is to be seen that except for a
very small number of applicants all the other applicants claim to have gone
underground. It is also clear that none of the applicants has produced
documents as required by the Scheme. All of them only relied on certificates
from co-freedom fighters without having produced NARCs as required under the
Scheme.
The above mentioned Orders of this Court and the Affidavits which have been
filed, in effect, work out the Writ Petition.
As the State Government and the State Advisory Committee have now opined
that none of the applicants was eligible no question arises of sending any
report to the Central Government for payment of pension.
Faced with this situation, it was submitted that in a matter like this the
Court should not look at technicalities but must look at the substances of the
Petition. It was submitted that the substances of the Petition was that pension
as per the Scheme be paid to the freedom fighters. It was submitted that this
Court has been passing the above mentioned Orders with this intention. It was
submitted that, from the Affidavits which have been filed, it was clear that
the Governments themselves were stating that no jail records were available in
any of these cases and that the Committee had been only looking at some record
maintained by the Intelligence Bureau. It was submitted that that was not a
record contemplated by this Scheme and these were all cases where the official
records were not available and therefore the certificates of Co-freedom
Fighters should have been accepted.
Reliance was placed upon the case of Chaitnya Charan Das vs. State of West
Bengal reported in AIR 1995 Calcutta 336, wherein this Scheme was under
consideration. In this case it was directed by the Calcutta High Court that an
Advisory Committee be set up by the State Government for looking into the
applications. It was further directed that once the Government was satisfied
about the genuineness and bonafide of a claim then payment had to be made.
It was further directed that such payment must be paid with interest at the
rate of 9% p.a. from the date of filing of the application. It was also noted
that the State Government and the Central Government were aware that in many
cases records were not available. It was held that in cases where the record
was not available claim of the applicant supported by a personal knowledge
certificate of a co- prisoner cannot be and should not be lightly disbelieved.
Reliance was also placed upon the case of Gurdial Singh vs. Union of India
reported in (2001) 8 SCC 8. In this case the applications had been accepted and
pension had been granted with effect from 29th April, 1998 instead of date of application i.e. 13th March, 1973. The applicant filed a Writ Petition
seeking pension from the date of his application. The Government then issued a
show-cause notice as to why his pension be not cancelled. In spite of his reply
the Government proceeded to cancel its earlier Order granting pension.
This was challenged by the applicant. Before this Court the Government tried
to justify cancellation by showing minor discrepancies and contradictions in
the application. In this context, this Court held as follows:
"7. 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
the Scheme had 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 touchstone 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.
8. We have noticed with disgust that the respondent authorities have adopted
a hypertechnical 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 closed mind, completely ignoring the verdict of this Court in
Mukund Lal Bhandari case (1993 Supp (3) SCC 2). We further feel that after
granting the pension to the appellant, the respondents were not justified in
rejecting 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." Strong reliance was placed
upon the above mentioned observations of this Court and it was submitted that a
sympathic approach must be adopted in such cases. It was submitted that the
object being to honour and mitigate sufferings of those who had given their all
for the country, a liberal and not a technical approach should be taken. It was
submitted that once the Scheme had been announced with the intention of
honouring the freedom fighters the object and purpose of the Scheme must be
kept in mind and the case of the claimants under the Scheme must be determined
on the basis of the probabilities and not on the basis of a test of beyond
reasonable doubt.
On the other hand, Mr. P. P. Malhotra, learned ASG appearing for the Union of
India, and Mr. Janaranjan Das, learned counsel appearing for the State of West
Bengal submitted that this was not a case where records were not available.
It was submitted that, in this case, the State Government had appointed a
statutory Advisory Committee which had looked into all the applications. It was
submitted that the applicants have not complied with the provisions of the
Scheme inasmuch as they have not submitted the relevant documents. It was
submitted that all the applicants have given certificates from co-prisoner
without producing NARCs. It was pointed out that in most of the cases the
applicants claim to have gone undergone and yet certificate has been given by a
prisoner who was himself supposed to have been in jail. It was pointed out that
the Government has noticed large scale fraud in claiming pension and has,
therefore, laid down strict guidelines which have been followed by the Advisory
Committee.
Reliance was placed upon the case of Mukund Lal Bhandari vs. Union of India
reported in (1993) Supp. (3) SCC 2, wherein it has been held that the scheme
mentions documents which are required to be produced before the Government. It
has been held that it is not for Courts to scrutinize the documents. It is held
that it is for the Government to scrutinize the documents and pronounce upon
their genuineness.
Reliance was also placed upon the case of Union of India vs. Mohan Singh
reported in (1996) 10 SCC 351. In this case also the applications had been made
only supported by a certificate from a MLA and a co-prisoner. The Government
found the certificate to be insufficient to sustain the claim. The High Court,
however, held that the certificates were sufficient and directed payment of
pension.
Setting aside the Judgment of the High Court, this Court noted the
observations in Mukund Lal Bhandari's case (supra) and held that it was not for
the High Court to embark upon the appreciation of the evidence. It was held
that once the Government concludes that the documents are not sufficient the
High Court cannot interfere.
Our attention is also drawn to an unreported Order of this Court dated 24th
September, 2003 in Civil Appeal No. 1850 of 1999.
In this case, an application had been made under this very Scheme.
There was no jail record and only an affidavit of a person who had visited
him in jail and a certificate from the Head Master of a school had been
submitted. This Court taking note of the observations in Mukund Lal Bhandari's
case (supra) held that proof as required under the Scheme had to be submitted.
It was held that if proof as required under the Scheme was not submitted
benefit could not be granted.
Reliance was also placed upon the case of State of Maharashtra vs. Raghunath
Gajanan reported in 2004 (6) SCALE 478, wherein it has again been reiterated
that it is for the Government to be satisfied regarding genuineness of the
claim and that the Court cannot sit in judgment over the decision of the State
Government like an Appellate Authority. It has been held that the Court cannot,
while exercising writ jurisdiction, enter into a re-appreciation of evidence
and/or reverse findings arrived at by the State Government, unless they be
perverse or be such as no reasonable man acting reasonably could arrive at. In
this case, the Court noted the observations Gurdial Singh's case (supra) and
held that the observations in Gurdial Singh's case (supra) do not negate the
standards laid down in Mukund Lal Bhandari's case (supra) and that those
standards continue to apply.
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.
We, however, record the statement of Mr. Janaranjan Das, learned counsel
appearing for the State of West Bengal, that as per the recent policy decision
of the Central Government all applications of persons who claim to have been
interned, in jails in territories which are now in Bangladesh, will be
forwarded to the Central Government for their consideration.
Accordingly, the Writ Petition stands dismissed. There will be no order as
to costs.
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