Smt. Shiv Devi vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1217 Del

JUDGMENT

S.K. Mahajan, J.

1. Rule.

2. With the consent of the parties matter has been heard and disposed of finally.

3. One Pandit Kalicharan had stated to have taken an active part in the freedom movement of this country. Pandit Kalicharan was prosecuted and convicted for this activity and was sentenced to six months rigorous imprisonment. He remained in District Jail, Agra from 16th September, 1930 to 4th January, 1931 and thereafter, he was shifted to Lucknow to serve the remaining sentence.

4. In 1972 the Government of India framed a scheme known as the Freedom Fighters Scheme, 1972. It provided for grant of pension to the freedom fighters and, if they were not alive, to the families of such freedom fighters. In terms of the scheme the freedom fighter for being entitled to the grant of pension must have undergone sentence for a minimum period of not less than six months.

5. Pandit Kalicharan applied for grant of pension under the scheme but before his pension could be sanctioned, he expired on 4th July, 1976. The petitioner, who is the widow of late Pandit Kalicharan, then applied to the respondents for grant of pension under the aforesaid scheme. Along with the application, the petitioner filed certificate from Superintendent, District Jail, Agra certifying that late Pandit Kalicharan was sentenced to six months rigorous imprisonment on 16th September, 1930 and was transferred to Lucknow Camp Jail on 4th January, 1931.

6. No records of Lucknow Camp Jail were available and, consequently, no certificate could be filed by the petitioner to indicate whether Pandit Kalicharan had undergone the remaining sentence in the Camp Jail at Lucknow. The application of the petitioner was rejected by the respondents on the ground that her case did not come under the scheme as the conviction of her husband was not certified. Being aggrieved by the decision of the respondents rejecting the application of the petitioner for the grant of pension, the present petition was filed by the petitioner.

7. The only ground taken in counter affidavit by the respondents for not granting pension to the petitioner is that under the scheme, the petitioner was required to file either the Jail certificate or in case of the non-availability of the record, the petitioner ought to have filed certificates from two prominent freedom fighters who should have undergone imprisonment for almost one year to the effect that the husband of the petitioner had undergone imprisonment for minimum six months. It is submitted that since the petitioner had failed to produce either the record of the Camp Jail, Lucknow, or co-prisoners certificate from two prominent freedom fighters, she was not entitled to pension under the scheme.

8. It is not in dispute that under the Freedom.

Fighters Pension Scheme, a person who had taken part in the freedom movement and served six months imprisonment due to his participation in the freedom struggle, is entitled to pension under the scheme. It is also not denied by the respondents that the husband of the petitioner was sentenced to six months rigorous imprisonment and was confined in Agra Jail from 16th September, 1930 to 4th January, 1931. The respondents have also not denied in the counter affidavit that on 4th January, 1931, the husband of the petitioner was shifted from Agra Jail to Camp Jail, Lucknow. The only dispute raised is that since no record about the husband of the petitioner having undergone the sentence at Camp Jail, Lucknow was available, the petitioner was not entitled to pension. The husband of the petitioner had admittedly undergone more than three months imprisonment in Agra Jail and was then shifted to Camp Jail, Lucknow. In my opinion, therefore, it was the duty of the respondents to trace out the records of the Camp Jail, Lucknow to find out whether the husband of the petitioner had undergone the remaining sentence in Camp Jail, Lucknow. The petitioner need not be penalised for inaction of the respondents in not tracing out their own records. It is not within the power of the petitioner to trace out the records of the Camp Jail, Lucknow to show that the remaining sentence was undergone by her husband in that jail. In the absence of any evidence to the contrary, the presumption is that the husband of the petitioner must have undergone the remaining sentence in Camp Jail, Lucknow as he was sentenced to six months imprisonment.

9. Moreover, the husband of the petitioner was imprisoned in the year 1930-31 and by this time all his co-prisoners must have expired or may not be available for giving the certificate in favor of the petitioner. Petitioner may not even be aware of the names and addresses of those co-prisoners. In my view, therefore, the respondents could not insist upon the production of certificate from two co-prisoners of her husband so as to grant pension to the petitioner.

10. As held by the Supreme Court in `Gurdial Singh v.

Union of India & Others' 2001 (6) SCALE 471, the Freedom Fighters Pension 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 the millions of masses of this country had participated in the freedom struggle without any expectation of grant of any pension at the relevant time. It has also to be kept in mind that in the partition of the country, most of the citizens, who suffered imprisonment were handicapped to get relevant records from the jail, where they had suffered imprisonment. The problem of getting the record is otherwise cumbersome and expensive. The Supreme Court, therefore, observed that 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 rational and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants are supposed to be such persons who have given the best part of their lives for the country. 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 the rival contention of the parties. 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 the persons seeking pension. It 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. 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 and once on the basis of evidence it is probablised 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 favor unless the presumption is rebutted by cogent, reasonable and reliable evidence.

11. The perusal of the record in this case shows that the respondents have approached the problem in a hyper technical manner and have ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. Once it was admitted that the husband of the petitioner had been sentenced to undergo six months imprisonment and was transferred to Camp Jail, Lucknow after spending a period of more than three months in Agra Jail, there was no reason to reject the application for grant of pension unless it was proved by some evidence that the husband of the petitioner did not undergo the remaining sentence in Camp Jail, Lucknow. Once it is admitted that the husband of the petitioner was sentenced to undergo six months imprisonment, presumption is that he must have undergone the sentence unless it is proved to the contrary. No evidence has been produced by the respondents to rebut this presumption. In my view, therefore, there is no case as to why the petitioner, who is the widow of the freedom fighter, should not be awarded pension under the aforesaid scheme.

12. I, accordingly, allow this petition and direct the respondents to grant the freedom fighters pension to the petitioner with effect from the date of her application. The arrears of pension be paid within two months from today. Respondents 1 and 2 will also pay the costs of these proceedings assessed at Rs.10,000/-.