Union Of India (Uoi) vs Mahender Singh
2006 Latest Caselaw 175 Del

JUDGMENT

Markandeya Katju, C.J.

1. This Appeal has been filed against the judgment of the learned Single Judge dated 24.11.2003.

2. Heard counsels for the parties and perused the record.

3. The writ Petitioner has alleged that he is a freedom fighter who sacrificed his studies to take part in the freedom struggle and had taken active part in the 1942 agitation and was forced to remain an absconder from 20th August 1942 till September 1946, i.e., for more than four years as he was made an accused in case G.R. 985 of 1942 and in Mokama P.S. case No. 259 (8) 1942 titled State v. Mahender Singh and Ors., relating to incidents of burning and damaging of a post office, railway line, etc. at Mokama during the freedom struggle.

4. It is alleged in the writ petition that the petitioner made an application for Freedom Fighters Pension on 7.9.1981 and the Government of Bihar then made a detailed enquiry and after completion of all formalities placed the matter before the Advisory Board on 12/13 December 1995, which recommended for release of pension to the petitioner with effect from 01.08.1980. Since no order was passed on the said application the petitioner sent a letter dated 9.4.1997 to the Respondent No. 1 for immediate release of pension and made several further requests but to no avail.

5. A counter-affidavit was filed in the writ petition by the respondents. In paragraph 3 of the same, it is stated that in 1972 the 25th Anniversary of Independence, the Government of India introduced a Scheme known as Freedom Fighters' Pension Scheme, 1972 for grant of Freedom Fighters' Pension to freedom fighters and their families, if they were no more alive. Pension was admissible to those freedom fighters whose annual income was less than Rs.5,000/- and who had suffered imprisonment/abscondence/ internment / externment for at least six months by an executive order of the then Government in connection with the freedom struggle. The type of evidence required in support of the sufferings in connection with the freedom struggle was also laid down in this Scheme. With effect from 1.8.1980, the Swatantrata Sainik Samman Pension Scheme, 1980 came into existence and the Freedom Fighters' Pension Scheme, 1972 ceased to exist. Under this Scheme, the income ceiling was removed and the minimum jail suffering for the purpose of eligibility for pension was reduced from six months to three months in the case of women freedom fighters and SC/ST freedom fighters. In other matters, the 1972 Scheme was followed.

6. In paragraph 4 of the counter-affidavit it is stated that the petitioner applied for Swatantrata Sainik Samman Pension Scheme on 7.3.1981 claiming underground suffering from 1942 to 1946. In support of his claim he submitted an affidavit from one S. P. Singh, an alleged freedom fighter from Muzaffarpur District, Bihar, indicating that the petitioner remained underground from August 1942 to July 1945. The case of the petitioner was examined and rejected vide letter dated 30.7.1986, Annexure R-I to the counter-affidavit, for the reason that he had not produced any acceptable documentary evidence of his remaining underground. The State Government on the basis of the negative report of the State Advisory Committee dated 24.5.1994 recommended to the Central Government to reject the petitioner's application vide Annexure R-II to the counter-affidavit.

7. Subsequently, the petitioner submitted a Non-Availability of Record Certificate, along with the Personal Knowledge Certificate of one Jagdish Singh, Patna. The claim of the petitioner was again examined and rejected vide letter dated 26.3.1996, Annexure R-III and the State Government again vide letter dated 9.4.1997 recommended that his application be rejected. The D.M. Patna, vide letter dated 15.2.1997 Annexure R-IV sent along with the recommendation of the State Government indicated that the petitioner was not able to produce any papers relating to his alleged abscondence in connection with the freedom struggle in which he claimed his involvement and, therefore, it was not possible to get the Non-Availability of Record Certificate verified from the District Record. Hence he recommended the application to be rejected. While the petitioner's case was under consideration he filed writ petition No. 1248/98 in this Court and this Court vide judgment dated 26.3.1998 allowed the petitioner to withdraw the petition but permitting him to make a representation. His representation was examined and was rejected by a speaking order dated 17.12.1998.

8. In paragraph 11 of the counter-affidavit it is stated that:-

With regard to averments made in para 15 of the Writ Petition, it is submitted that the petitioner in his application dated 7.3.1981 had merely indicated that he remained underground from 1942 to 1946. He did not indicate the details of the case in which he had to go underground. He applied for copy of the record of the G.R. No. 985/42, Mokama Thana Case No. 259(8) 42 from SDO, Barh, Patna on 1.7.1995. It was indicated by the District authorities that the record of the period are not available with them. The said Non-Availability of Records Certificate (NARC) did not indicate the date of disposal of the case as well the relevant provisions of IPC. Thus, it is not clear whether the said case, if any, was related to freedom struggle and what was the duration of the claimed suffering of the petitioner. DM, Patna in her verification report had indicted that as the petitioner had failed to produce any relevant document, the case deserved to be rejected. This respondent had given an opportunity to the petitioner to furnish name of two co-accused in the same case who are presently getting pension on the basis of GR No. 985/42 and date of disposal of this case. These details were sought so as the case of the petitioner could be decided on a similar precedence, if any and to check whether the period of claimed suffering of the petitioner was for a minimum period of six months or not.

Further, the Personal Knowledge Certificate (PKC) of Shri Jagdish Singh is not acceptable as the certificate, as is evident from his own certificate was in jail for most of the period of the claimed suffering of the petitioners. Thus, it could not be possible for him to verify the period as well reasons of the claimed suffering of the petitioner based on his personal knowledge. As regards acceptability of Personal Knowledge Certificate (PKC) of the certifier, Hon'ble Patna High Court has in CWJC No. 10450/2000 in the case of Hari Nandan Singh v. The Union of India vide their judgment dated 23.10.2000 (Annexure F-V) that a freedom fighter cannot issue a personal knowledge certificate in favor of another person for the period when he himself was in jail. Relevant observation of the Court are as follows:-

This Court fails to appreciate as to how such a certificate could be granted by Sri Sahdeo Singh when during most of the said period he was himself in jail custody as is evident from his own certificate quoted above. This, in my opinion, shows that the scheme for the grant of Samman Pension is being completely misused so much so that even the freedom fighter who has been granted Samman Pension also grants such certificate fro which they cannot be said to be competent in the facts and circumstances aforementioned.

As regard the recommendation of the State Advisory Committee and the State Government, it is submitted that the same is necessary but is not binding on this respondent. Hon'ble High Court of Patna in CWJC No. 8665/97 in the case of Kishori Singh v. UOI and Ors. vide judgment dated 8.1.1999 (Annexure RVI) has held that:

The recommendation is sent to the Central Government for consideration and not for granting pension. In other words the recommendation of the State Government is not final or conclusive. It is for the authority of the Central Government granting such pension to make further scrutiny in the matter and take final decision.

9. From the facts stated above, it is clear that the petitioner's claim was considered by the concerned authorities, who found that he had not produced satisfactory evidence to establish that he was entitled to freedom fighters pension. We cannot interfere with this finding of fact of the concerned authority.

10. In State of Maharashtra and Ors. v. Raghunath Gajanan Waingankar 2004 (6) SCC 584, the Supreme Court observed as follows:-

7. It is true that in Gurdial Singh case this Court has emphasized the need for dealing with the claim of freedom fighters with sympathy dispensing with the need for standard of proof based on the test of 'beyond reasonable doubt and the approach should be to uphold the entitlement by applying the principle of probability so as to honour and to mitigate the sufferings of the freedom fighters. However, the observations of this Court in Mukund Lal Bhandari case cannot be lost sight of and given a complete go-by wherein this Court has very clearly directed that:-

6. As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is function of the Government to do so. We would, therefore, direct accordingly.

The High Court exercising writ jurisdiction does not sit in judgment over the decision of the State Government like an appellate authority. Ordinarily, the High Court exercising writ jurisdiction cannot enter into re-appreciation of evidence and reverse the findings arrived at by the State Government unless they be perverse or be such as no reasonable man acting reasonably could have arrived at. If the High Court found that the decision arrived at by the State Government was flawed in any way then the High Court should have, after laying down the necessary principles or guidelines or issuing directions, directed the State Government to reconsider the case of the respondent. In no case, the High Court could have in exercise of its writ jurisdiction relaxed the need for full satisfaction of the necessary requirements on the fulfilllment of which alone the respondent's entitlement to the release of freedom fighters pension depended.

11.Thus it is well settled that the High Court cannot sit in appeal over the decision of the concerned authorities and the Court cannot scrutinize the documents which according to the petitioner proved their genuineness of their case. This is the function of the Government and not of the Court.

12. A similar view was taken in Union of India v. R. V. Swamy , in which the Supreme Court observed that where the Government after considering the evidence found that there was no proof of the facts which entitled the applicant to get freedom fighters pension, the High Court could not, placing reliance on other material, direct the freedom fighters' pension to be granted.

13. Similar view was taken in Mukund Lal Bhandari and Ors. v. Union of India and Ors. 1993 Suppl. (3) SCC 2.

14. In Bhaurao Dagdu Paralkar v. State of Maharashtra and Ors. the Supreme Court observed:-

When one talks of freedom fighters the normal image that comes to one's mind is a person who suffered physically and mentally for unshackling the chains of foreign rule in our country. The normal reaction when one sees such person is one of reverence, regard and respect. The brave and courageous deeds of these persons are a distinctive part of India's fight for freedom. Many persons lost their lives, many were injured and a large number of such persons had languished in jails for various periods. The common thread which must have passed through the minds of these people is their sole objective to see that their motherland has a government of its own, free from foreign rule. But these images get shattered when one hears that with a view to gain financially, vague documents have been made. It is a sad claims of participation in the freedom movement have been made. It is a sad reflection on the moral values of the citizens of our country that a large number of cases have surfaced where it has been established that people who were not even born when the freedom fight was on or the country got independence or were toddlers when the country got independence have applied for and managed to get Sammanpatra', pensionary and other allied benefits. The appeals at hand deal with such allegations. This is 'Asamman' (disrespect) to the whole country and such dishonourable ventures have to be dealt with sternness to send out a message that they are not freedom fighters, but are trailors sullying the name of freedom fight.

15. Thus, the Supreme Court has noted that a lot of fraud has been practiced in respect of claims for freedom fighters pension, and this Court certainly should not be party to such a fraud. The case of the petitioner was considered and it was found that he has not proved that he was entitled to get pension. It is not for this Court to sit in appeal over the said decision.

16. In our opinion, the learned Single Judge has practically sat in appeal over the decision of the Government which he ought not to have done. In para 9 of his judgment, the learned Single Judge observed:-

There is sufficient probability from the evidence on record that the petitioner went underground and proclaimed offender

17. Thus the learned Single Judge has acted as a Court of first appeal and has re-appreciated the evidence on record, which he could not validly do. In the circumstances, the Appeal is allowed and the impugned judgment of the learned Single Judge is set aside and the Writ Petition is dismissed.