Gangabhishan Jain vs Union Of India (Uoi)
2003 Latest Caselaw 445 Del

JUDGMENT

A.K. Sikri, J.

1. This petition has been filed by the petitioner claiming Swatantrata Sainik Samman Pension (hereinafter referred to as 'S.S.S. Pension' for short). The petitioner claims to be a freedom fighter having participated in the freedom struggle of the country. He claims that on account of his patriotic activities he was arrested and tried under Rule 38(5) of the defense of India Rules, 1939 and a criminal case was registered against him by the Nasik Police and was tried by the Court of District Magistrate, Nasik. In connection with the case he was arrested and put on trial. He underwent imprisonment for 12.10.1943 to 19.2.1944 at Nanded District Jail and subsequently from 20.2.1944 to 25.5.1944 at Nasik Jail. In this manner, according to him, his total period of imprisonment was 7 months and 14 days.

2. It is a matter of record that during 25th Anniversary i.e. Silver Jubilee of Independence, the Government of India introduced a scheme known as Freedom Fighters Pension Scheme, 1972 for grant of pension to Freedom Fighters or their families if they were no more alive, and to the families of martyrs. The scheme commenced from 15.8.1972. The detailed guidelines were issued specifying quantum of pension, persons eligible to get pension and the procedure as per which an individual claiming entitled to get pension can apply para 4 of these guidelines states as to who would be eligible to get the pension which reads as under:

WHO IS ELIGIBLE

For the purpose of grant of Samman Pension under the scheme, a freedom fighter is--(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before independence. However, ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. (b) The minimum period of factual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1.8.1980.

Explanation 1: Detention under the orders of the Competent Authority will be considered as imprisonment.

2. Period of normal remission up to one month will be treated as part of actual imprisonment.

3. In the case of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered.

4. Broken period of imprisonment will be totalled 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, (c) A person interned in his home or externed from his district provided the period of internment/externment was six months or more. (d) A person whose property was confiscated or attached and sold due to participation in the freedom struggle, (e) A person who became permanently incapacitated during firing or lathi-charge, (f) A person who lost his job (Central or State Government) and thus means of livelihood or participation in national movement. A Martyr is a person who died or who was killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British. Para 9 of the Scheme stipulated as to how a person was to prove the claims by submitting required evidence and it makes the following reading:

The applicant should furnish the documents indicated below whichever is applicable, (a) Imprisonment/Detention, etc. Certificate from the concerned jail authorities, District Magistrate or the State Government in case of nonavailability of such certificates co-prisoner certificates from a sitting M.P. or M.L.A. or from an ex-M.P. an ex-M.L.A. Specifying the jail period (Annexure 1 in the application form), (b) Remained Underground: (i) Documentary evidence by way of Court's/Government orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention.

(ii) Certificates from veteran freedom fighter, who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non-availability. (c) Internment or Externment (i) Order of internment or externment or any other corroboratory documentary evidence.

(ii) Certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. (Annexure 1I in the application). Note: The Certifier veteran freedom fighters in respect of underground suffering, internment/externment and the applicant should belong to the same administrative unit before the reorganisation of States and their area of operation must be the same. (d) Loss of Property, Job, etc.. Orders of confiscation and sale of property, orders of dismissal or removal from service.

3. In the year 1980 this scheme was renamed as Swatantrata Sainik Samman Pension Scheme, 1980 after making certain modifications therein and adding some more categories for grant of pension, A person who had undergone imprisonment for a period of six months was eligible to get pension under this scheme.

4. In the year 1989, the petitioner made an application before the Special Judicial Magistrate, District Nanded. By an order dated 21.12.1989 the Special Judicial Magistrate, Nanded held that it was for the offices who were responsible to give the copies of the crime record. After going through the affidavits, he held that the petitioner's period of suffering imprisonment in the Nanded District Jail for a period of 3 months and 7 days be accepted. The petitioner thereafter requested for grant of pension followed by reminders. The case of the petitioner was scrutinised by the Government of Maharashtra and on the basis of available record the same was verified and after scrutiny by the High Power Committee appointed by the Government of Maharashtra, case of the petitioner was recommended by the State Government to the Central Government for grant of pension vide letter dated 15.3.1991.

5. However, the Central Government did not grant pension to the petitioner. He filed CWP No. 1957/94 in this Court. This writ petition was dismissed by the Division Bench of this Court vide order dated 8.5.1995 by observing as under:

"On consideration of the aforesaid provisions of the scheme and also on careful perusal of the documents produced by the petitioner as disclosed from the present writ petition, we find that except for a period of 4 months and 7 days of imprisonment having undergone by the petitioner no other cogent and reliable evidence and/or other documentary evidence as required under the provisions of the scheme could be produced by the petitioner in support of his claim for making himself eligible to receive the benefit of the aforesaid scheme. We are also not in a position to draw a favorable presumption in favor of the petitioner about his imprisonment in Nasik Jail from 20.2.1944, as claimed by the petitioner, in view of the absence of any documentary or other such reliable evidence as laid down under the scheme. In absence of such reliable and cogent primary or corroborative evidence as required under the provisions of the scheme and referred to above, we cannot come to a definite conclusion that the petitioner fulfills the necessary criteria for receipt of grant of such pension. As the criteria and nature of evidence required for claiming such benefit under the scheme are earmarked and well defined, we have no jurisdiction to direct any deviation there from so as to make the petitioner eligible to claim the said benefit. In the result, we have no other option, but to dismiss the writ petition, but without any costs."

6. The petitioner thereafter filed Review Application No. 667/95 seeking review of the aforesaid judgment. This review application was disposed of by order dated 10.5.1996 directing the respondents to reconsider the case of the petitioner in the light of evidence which the petitioner had filed along with review application. The relevant observations in this behalf are as under:

"In view of the fact that reliance is now placed on corroborative evidence and no reply having been filed by the respondents, no other or further direction deserves to be issued except by directing the respondents to reconsider the case of the petitioner in the light of the evidence now sought to be relied in the two affidavits and the earlier evidence adduced and take a fresh decision in the case of the petitioner for pension. Needless to say that the order passed on 8th August, 1995 will not come in the way of the petitioner for grant of pension, in case on the basis of the evidence adduced he is found entitled to pension. The decision will be taken as expeditiously as possible, preferably within a period of four months from today."

7. The case of the petitioner was thus reconsidered by the Government of India and vide letter dated (not legible) the petitioner was communicated that he was not eligible for the said pension.

8. The petitioner challenged this rejection by filing Writ Petition No. 4026/96. This Court vide order dated 14.1.1997 disposed of the said writ petition by directing the respondents to reconsider the case of the petitioner after taking into account the entire evidence produced by the petitioner to justify his claim and the petitioner was directed to appear before the respondent authorities on 27.2.1997 along with his Counsel for the purpose of personal hearing. The petitioner attended this hearing conducted by the Under Secretary Shri S.K. Jain of the Freedom Fighters Cell on 27.2.1997. Thereafter, on the next date i.e. 28.2.1997 the petitioner gave written submissions to Shri S.K. Jain and requested him to expedite the matter.

9. However, when nothing was heard till the end of April, 1997, the petitioner filed present writ petition dated 5.5.1997 for grant of Freedom Fighters Pension under the aforesaid Swatantrata Sainik Samman Pension Scheme.

10. The petitioner states that he fulfills all eligible conditions for grant of pension which would be clear from the following facts:

"(i) There is already a proof for imprisonment for 4 months and 7 days; (ii) The order of the Special Judicial Magistrate accepting the period of imprisonment of 3 months and 7 days in Nasik District Jail; (iii) 2 Affidavits of freedom fighters who are recipient of the freedom fighters pension from the Central Government; (iv) The petitioner is already a recipient of Gaurav Pension from the State Government. (v) The case of the petitioner was recommended by the State Government after his case was scrutinized by the High Power Committee appointed by the State Government."

11. In the counter-affidavit filed on behalf of the respondents; it is explained that the case of the petitioner was initially considered and rejected on 28.8.1991 on the ground that his application was time-barred and that such delayed cases are considered only if they are supported with documentary evidence full from official records and the petitioner was informed accordingly. It is further explained that after the Court passed order in review application directing the respondents to reconsider the case of the petitioner, the case was considered afresh and by speaking order dated 23.7.1996 it was rejected. Again after the directions dated 14.1.1997 were given in CWP No. 4026/96 the petitioner's case was considered and rejected vide order dated 8.7.1997. It is further explained that under the provisions of the scheme those persons who claim pension on the basis of their imprisonment of six months or more should furnish a certificate from the concerned authorities for a minimum period of six months or along with a certificate (NARC) from the State Government, two Co-prisoners Certificates (CPC) from prominent freedom fighters who had suffered at least one year in jail. As per the scheme the petitioner could not substantiate his claimed jail suffering for a minimum period of six months. He did not produce any proof from official records to show that he was either sentenced for six months or detained for six months. The partial evidence produced by him shows that he was imprisoned for 4 months and 7 days only. Hence the stand of the respondent Ministry is fully justified and sustainable. The petitioner has not been able to prove his claimed jail suffering at Nasik (for 3 months and 7 days) by documentary evidence and in the absence of the same it is not possible to accept the contention of the petitioner that he had been imprisoned for a period of 7 months and 14 days. Further, the question of his tendering apology does not arise as it was not proved that whether he was convicted or not. The respondent had considered the entire evidence already produced by the petitioner as well as the further evidence produced after the review petition and Hon'ble Court's order passed thereon vide respondent's letter dated 23.7.1996. The further evidence i.e. two affidavits, in no way, prove his claimed jail suffering of more than six months. He should have produced CPCs.

12. The respondents have also explained that the State Government's recommendations are not acceptable as their report is not based on official records as the petitioner did not fulfill the minimum eligibility criteria as laid down under the scheme. It is further stated that two affidavits filed in favor of the petitioner are personal knowledge certificates and thus are not relevant as secondary evidence in cases based on official records. These cannot substitute co-prisoners certificates.

13. From the facts mentioned above, it is clear that the petitioner has not been able to give any clear and direct evidence in respect of his alleged imprisonment in Nasik Jail. The petitioner can be entitled to pension only if this period is included as without inclusion of this period, the petitioner's imprisonment is less than six months. Therefore, the entire case depends on this fact as to whether the petitioner had suffered imprisonment in Nasik Jail for a period from 20.2.1944 to 25.5.1944 as alleged by him. Learned Counsel for the petitioner was candid in his admission that there was no direct evidence to show that the petitioner had been in Nasik prison during the aforesaid period. His submission was that it was because the original records of the said Jail were not available. However, according to him secondary evidence as well as circumstantial evidence, in such a case, should have been taken into consideration as he submitted that it was a beneficial and benevolent scheme to honour freedom fighters which should be liberally construed and in support of this proposition, he relied upon the judgments of Supreme Court in the cases of Surja and Ors. v. Union of India and Anr., ; Gurdial Singh v. Union of India and Ors., , as well as Division Bench judgment of this Court in the case of Ganga Bai v. Union of India 59 (1995) DLT 609.

14. Learned Counsel for the respondents on the other hand contended that in order to get freedom fighter's pension, it was for the petitioner to prove his imprisonment for at least six months. As the petitioner had failed to prove the same, he was not entitled to this pension. His submission was that liberal consideration of such a scheme would not mean that the provisions of the scheme are to be given go-bye and even if a person is not able to comply with the conditions stated in the scheme, he is to be given the pension.

15. I have heard both the parties and considered their submissions and had also summoned the records and gone through the same.

16. From the sequence of events disclosed above, it would be seen that the petition CWP No. 1057/94 filed by the petitioner for grant of pension was initially rejected by the Division Bench of this Court by detailed speaking order. Relevant portion of the said judgment is already extracted above. In that case Division Bench observed that in order to get the pension, a person has to prove that he has suffered minimum imprisonment of six months in the mainland jails before independence. For this purpose, as per the scheme, a Certificate has to be produced from the concerned Jail Authorities, District Magistrate or the State Government and in case of non-availability of any such Certificate, a Certificate from co-prisoners or from sitting members of Parliament or MLA or Ex-MP. or Ex-MLA specifying the jail periods could also be produced. When the claim is based on one being connected with underground activity, it is laid down that the claimant has to produce in support of his claim documentary evidence by way of Court's/Government orders proclaiming an award on his head or for his arrest or for ordering his detention. If however, such official records are not available or forthcoming due to their nonavailability, certificates from veteran freedom fighters who themselves have undergone imprisonment for 2 years or more are to be annexed in support of the claim. It is further laid down that a certifying veteran freedom fighter in respect of underground suffering internment, externment and the claimant should belong to the same administrative unit before the reorganisation of State and their area of operation must be the same. In case the claim is based on the basis of suffering for internment or externment or any other corroborative documentary evidence is to be submitted in support of such claim and in case such evidence is not available then certificates from veteran freedom fighters who have undergone 2 years imprisonment is to be produced. It was after considering these provisions and perusing the documents produced by the petitioner, the Division Bench came to the conclusion that except for a period of 4 months and 7 days of imprisonment having undergone by the petitioner no other cogent and reliable evidence and/or other documentary evidence as required under the provisions of the scheme could be produced by the petitioner in support of his claim for making himself eligible to receive the benefit of the aforesaid scheme. The Division Bench specifically stated that it was not in a position to draw a favorable presumption in favor of the petitioner about his imprisonment in Nasik Jail from 20.2.1944 as claimed by him. In these circumstances, this petition was dismissed. No doubt the petitioner filed Review Petition seeking review of the aforesaid judgment. However, review was sought only on the ground that by way of corroborative evidence two affidavits those of Rai Sahib and Sopan who are in receipt of pension under the scheme which could not be filed earlier were filed along with the said review application. It was because of this evidence produced by the petitioner that order dated 10.5.1996 was passed in the review application directing the respondents to re-consider the case of the petitioner in the light of evidence which was now sought to be relied in the form of two affidavits along with earlier evidence adduced by him. Thus on the basis of evidence produced by the petitioner earlier along with the writ petition, this Court was of the view that the petitioner had not been able to satisfy that he was eligible to get the pension. What is the evidential value of that two affidavits, is the question, as this is the only additional evidence now relied upon by the petitioner. As mentioned above, in the counter-affidavit filed by the respondents, it is stated that these two affidavits are personal knowledge certificates and, therefore, could not be relied upon inasmuch as requirement of the scheme is to produce co-prisoners certificates. While rejecting the case of the the petitioner for grant of pension vide communication dated 8.7.1997, this aspect is dealt with by the respondents in the following manner; "In support of your claim of jail sufferings, you have produced additional evidences by way of affidavits from two freedom fighters which are personal knowledge certificates. In respect of claims based on jail sufferings, the secondary evidence required is co-prisoners' certificates from eligible certifiers with provenjail suffering of one year. The affidavit from freedom fighters submitted by you as additional evidence in support of your claim are, therefore, not acceptable under the provisions of the pension scheme. Thus, your claim to jail sufferings for the minimum required period of six months is not proved by the evidence produced by you, in support of your claim.

As you have not been able to produce co-prisoners certificates from two eligible certifiers with proven jail sufferings of one year and who were your co-prisoners, in Distt. Jail Nasik you are not eligible for grant of pension in terms of the provisions of the pension scheme your case has accordingly been rejected."

17. I have already reproduced above the requirements of the scheme. As per the scheme, in order to establish that an applicant had undergone imprisonment, primary evidence required is certificate from the concerned jail authorities, District Magistrate or the State Government. In case of non-availability of such certificate, secondary evidence in the form of certificate from co-prisoners or from sitting members of Parliament or MLA or an Ex-M.P. is also permissible. The petitioner has not been able to produce the certificate either from co-prisoner or from sitting members of Parliament or MLA or Ex-M.P.. Therefore, it is clear that the petitioner has not been able to substantiate his claim in accordance with the requirements of the scheme. In these circumstances, it cannot be said that order dated 8.7.1997 passed by the respondents suffers from any irregularity or illegality. When scheme very categorically postulates the manner in which the claim has to be established, this Court cannot go beyond those parameters and direct the respondents to allow a person pension by accepting whatever mode of evidence such person produces whether admissible in terms of scheme or not. Insofar as recommendation of the State Government is concerned, scheme clearly provides that the Central Government would not consider the case without such recommendation. That does not mean that once recommendation is made by the State Government, Central Government would act thereupon mechanically and grant pension. Had that been, so provisions would have been to the effect that on the recommendation of the State Government, Central Government would grant the pension. However, scheme instead of providing this, requires the claim to be established by producing documentary evidence of the nature specified therein and it is for the Central Government to satisfy itself as to whether a particular applicant has produced the required evidence or not.

18. As the petitioner has not been able to substantiate the claim in accordance with the scheme, I am afraid, no relief can be granted to the petitioner. This writ petition is thus dismissed.

No costs.