Brahma Dutt Mishra vs Union Of India (Uoi)
2004 Latest Caselaw 717 Del

JUDGMENT

T.S. Thakur, J.

1. Swatantrata Sainik Samman Pension Scheme introduced by the Government of India intended to provide pension to freedom fighters and their families. The spirit underlying the scheme was to honour those who had participated in the freedom struggle and made sacrifices for the liberation of the country from foreign rule. It was also intended to mitigate in some measure the sufferings of those who had given everything that they had when the country required the same. Claims for payment of pension under the scheme when filed were at times looked at with a sense of cynsism by powers that be in the bureaucracy. Proof regarding satisfaction of the conditions subject to which the pension could be sanctioned was demanded and the evidence furnished by the claimant weighed the golden scales in the process of arriving at a conclusion whether the person concerned was or was not a freedom fighter. In Gurdial Singh v. Union of India & Ors. , the Supreme Court dispelled the impression that the standard of proof required in such cases was the same as was required in criminal cases or in cases involving adjudication of rival contentions. The court held that claims for payment of pension under the scheme had to be determined on the basis of probabilities and not upon proof beyond reasonable doubt. The following passage from the said decision cleared the mist surrounding the determination and award of pension to the claimants under the scheme:-

"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 favor unless the same is rebutted by cogent, reasonable and reliable evidence."

2. The petitioner in the present case is also one of the claimants for the grant of pension under the scheme aforementioned. Upon consideration, the Government of India had in terms of a communication dated January 1, 1975 rejected the claim on the ground that he was not covered by the scheme as he had not spent 6 months in jail - a requirement which was essential for declaring him as a freedom fighter. On receipt of the said communication, the petitioner filed a representation inter alia pointing out that the requirement of undergoing imprisonment for six months was not mandatory so long as the claimant had been sentenced to imprisonment of six months or more. This representation, it appears, was not considered by the Government of India forcing the petitioner to file CW 444/1996 for a mandamus directing the Government to consider the same and to communicate the result of the consideration to him. A.D. Singh J., as His Lordship then was, allowed the said petition by an order dated 12th March, 1996 and by a mandamus directed the respondents to consider the representation made by the petitioner in the light of the decision of the Supreme Court in Surja & Ors. v. Union of India & Ors. . Nearly two years after the said direction was issued, the Government of India passed an order on 3rd March, 1997 provisionally sanctioning a sum of Rs.1500/- towards pension under the scheme in favor of the petitioner. The order stated that the grant of pension was subject to verification report of the State Government as regards the eligibility of the petitioner and was liable to be cancelled or modified if it was found that the sanction had been wrongly granted or that it was granted on the basis of information that was false. The petitioner, accordingly started receiving the amount of pension @ Rs.1500/- per month till he received a notice in October 2000 calling upon him to show cause why the sanction of the pension in his favor be not cancelled and the amount paid to him recovered. It was pointed out that petitioners' incarceration in the jail was limited to four months only as against six months stipulated under the scheme. The petitioner, it appears, submitted his reply to the said show cause notice placing heavy reliance upon the decision of the Supreme Court in Surja's case (supra) in which their lordships had, while interpreting the scheme, held that what was important was that the person concerned should have been convicted and ordered to suffer imprisonment for more than six months and not that he had actually undergone the sentence awarded to him. Convicts who were enlarged from the jail without claiming any remission even before the expiry of the period for which they were sentenced also were entitled to the benefit of pension. The ratio of the decision is found in the following passage extracted from the said decision :-

"Freedom Fighters' Pension Scheme of 1972 was renamed as "Swatantrata Sainik Samman Pension Scheme 1980". The brochure published by the Union of India indicates : " A person who had suffered a minimum imprisonment for six months in the main jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension." It has already been indicated that each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months. The petitioners' assertion that they did not claim remission has not been doubted or disputed. In the facts of the case, it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond six months remission had been granted and they were let off earlier would not take away their right to earn pension. Learned Attorney General appearing for the respondents has accepted this construction of the entitlement clause."

3. The Government of India did not, however, find favor with the representation filed by the petitioner with the result that the pension sanctioned in his favor was recalled in terms of an order dated 30th May, 2001 with the direction that the amount drawn by the petitioner should be recovered from him together with interest. One of the main reasons which the Government advanced in support of its decision was that the period of actual suffering in the jail undergone by the petitioner was limited to a period of four months only as confirmed by the State Government which was not, according to the Government, sufficient to entitle him for payment of pension under the scheme. The decision of the Supreme Court in Surja's Case (supra) did not prove of any benefit to the petitioner in the light of a subsequent decision delivered by their lordships in Union of India & Ors. v. Manohar Lal Azad (CA No. 6210/2000 disposed on 2nd November, 2000), in which the Court held that the entitlement of a freedom fighter for payment of pension under the Swatantrata Sainik Samman Pension Scheme would arise only in case the claimant had actually undergone suffering in jail for a period of six months or more. The decision in Surja's case (supra) was held to have been delivered in the peculiar circumstances of that case. The following passage from the said judgment, is in this connection instructive :-

"From the above observation it is clear that on the peculiar facts of that case it was held that each of the petitioners therein satisfied the condition for earning the benefit of pension. We are unable to read that judgment as laying down that where a person has been sentenced to imprisonment for six months or more but if he comes out within a month or so, for whatever reason, without serving his sentence, he will still be a freedom fighter within the meaning of the scheme and eligible for the Samman pension. To say so, in our opinion, would amount to giving a go-by to the definition of the expression 'freedom fighter' and substituting a new eligibility criteria for the scheme enlarging its scope which is not only impermissible but also contrary to the spirit of the scheme framed on the basis of the material and keeping in mind the class of the political sufferers who would be the beneficiaries of the Samman Pension Scheme."

4. Consequent upon the order passed by the Government, the authorities appear to have initiated action for recovery of the amount paid to the petitioner towards pension up to the time the payment was stopped. Aggrieved by the order passed by the Government and the recovery proceedings initiated against him, the petitioner has filed the present writ petition.

5. Appearing for the petitioner, Mr. Vohra made a two-fold submission in support of the petition. Firstly, he contended that although the petitioner had suffered a jail term only for a period of four months or so, his conviction and sentence for more than six months sufficiently satisfied the requirements of the scheme entitling him to claim the pension payable there under. The decision of the Supreme Court in Surja's case (supra), was according to the learned counsel, directly on the point and could be followed by this court to declare the petitioner entitled to the relief prayed for by him. Secondly, he argued that even if the view taken in Surja's case (supra) was held to have been overruled by the Supreme Court in Manohar Lal Azad's case, the fact that the petitioner had participated in the freedom struggle and had been sentenced to more than six months imprisonment and the fact that he had actually undergone sentence for a period of about four months was sufficient to entitle him to claim that he was a bona fide claimant. Payment made towards pension could not therefore be recovered from him. He submitted that the petitioner was nearly 94 years old who had utilised the amount paid to him for his subsistence and for medical treatment and that the recovery of the said amount at this stage of his life would not only cause him great humiliation and frustration but would result in the ignominy of his limited assets being attached and sold in public auction. Since the petitioner had not been guilty of any misrepresentation of facts, the amount received by him could not be recovered by the respondents.

6. On behalf of the respondents, it was, on the other hand, contended that the decision in Surja's case (supra) having been overruled by implication and its ratio having been confined to the peculiar facts of that case, the petitioner was not entitled to the grant of any pension under the scheme in the light of the law declared in Manohar Lal Azad's case. In so far as the recovery of the amount received by the petitioner was concerned, it was submitted that since the amount was not legally payable to him, there was no legal or other justification for allowing the petitioner to retain the same. Reliance in support of that proposition was placed by the learned counsel for the respondents on the decisions of the Supreme Court in Union of India & Ors. v. Sujatha Vedachalam & Anr. and Comptroller & Auditor General of India & Ors. v. Farid Sattar .

7. The scheme formulated by the Government is for the benefit of the freedom fighters and those who had worked with the ex-Indian National Army. Clause (a) of para 4 of the scheme defined the expression of "Freedom Fighter" as under:-

"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."

8. In Manohar Lal Azad's case, their lordships while interpreting the above definition held that incarceration in jail for a period of six months was essential for anyone to claim the benefit under the scheme. Conviction and sentence for a period of six months or more was not according to the said decision sufficient if the same was not accompanied by actual serving of that sentence. The said decision holds the field even today as no later decision taking a contrary view or following the contrary view taken in Surja's case (supra) was brought to my notice by learned counsel for the parties, I have, therefore, no option but to follow the said decision in preference to the view taken in Surja's case and hold that even when the petitioner may have been a freedom fighter as generally understood in common parlance or even when petitioner had been sentenced and made to suffer imprisonment in jail for a period of four months, he was not eligible for any benefit under the scheme as the sentence actually undergone by him was short by two months of what was the bare minimum prescribed for that purpose. The view taken by the Central Government that the petitioner is not entitled to the pension under the scheme, therefore, does not in my opinion suffer from any error to warrant interference from this court.

9. That, however, is not the end of the matter. The alternative submission made on behalf of the petitioner raises an issue which cannot be lightly brushed aside or rejected out of hand. The material facts in this connection are not in dispute. The fact that the petitioner was sentenced to more than six months imprisonment and had actually undergone jail sentence for four months has been duly certified by the State Government authorities. That the sentence in question was under the defense of India Rules which were used to suppress the freedom movement in the country was also not in dispute. That the petitioner had not made any misrepresentation regarding his entitlement for the grant of pension is also evident from the record. That the petitioner is towards the evening of his life being over 94 years of age is also common ground. The question then is whether recovery of the amount paid pursuant to an order passed by the Government of India at a time when the legal position as settled by Surja's case (supra) held the field would be justified, having regard to the considerations of equity, fairness and good conscience and the purpose underlying the scheme. My answer to that question is in the negative. I say so for three precise reasons. The first and the foremost is that the petitioner is one of those who had participated in the freedom struggle, suffered the humiliation of a trial and sentence followed by incarceration in jail. His sacrifice may not be sufficient to entitle him to pension under a scheme framed for such freedom fighters but that does not mean that the petitioner was not one of those who had participated in the movement and suffered at the hands of the foreign rulers. The second and equally weighty consideration why the proposed recovery proceedings would be unfair and unjust is the fact that having found him entitled to pension, no matter on a provisional basis, it is implicit that the petitioner would have arranged his life and affairs in a manner which he may not have done had he known that the amount being received by him could one day be recovered from him together with interest. There was implicit in the grant and in the payment of the pension, a representation that the same is due to him and can therefore be utilised. A legitimate expectation that the amount paid to him will not be recovered from him can be said to have arisen in the facts and circumstances of the case. Superadded to the above is the fact that the petitioner is already touching 94 years and is, therefore, living through the evening of his life. In the absence of any material to show that the petitioner is possessed of assets and means that would enable him to repay the amount received by him, it would be an irony of sorts to see the property of a freedom fighter being attached and sold in public auction to recover from him an amount which is by no means fabulous.

10. The decisions of the Supreme Court in Union of India & Ors. v. Sujatha Vedachalam & Anr. and Comptroller & Auditor General of India & Ors. v. Farid Sattar do not, in my opinion, support the contention urged on behalf of the respondents that the recovery should not be interfered with. Those decisions were delivered in cases where the emoluments of employees were refixed but the refixation was subsequently found to be erroneous resulting in an excess payment to the employees. It was in those circumstances that their lordships permitted the recovery of the excess amount from the future emoluments of the employee in installments. The present is not, however, a comparable situation. The petitioner is not a Govt. employee nor is there any opportunity for the respondents to recover the amount paid to him from out of the emoluments that he may be receiving. The only option for the respondents is to attach and sell the property of the petitioner which is not the same thing as recovery from the salary of an employee who is serving his employer. That apart the decision of the Supreme Court in Shyam Babu Verma v. Union of India takes a different view even in relation to recovery of the excess amount received by a public servant where such excess is not paid to him on account of any misrepresentation of which he is guilty. The Court observed :-

"Although we have held that the petitioners were entitled only to the pay scale of Rs.330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs.330-560 but as they have received the scale of Rs.330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same."

11. In the result, this petition succeeds and is hereby allowed but only in part and to the extent that the amount already paid to the petitioner shall not be recovered from him. The impugned order issued by the Government of India to the extent it directs such recovery to be made shall stand quashed leaving the parties to bear their own costs.

12. In the peculiar facts and circumstances of the case, the costs of Rs.3,000/- imposed upon the respondents for non-filing of a counter-affidavit shall stand waived and the order made in that regard recalled.