Shri Satish Chandra Mishra vs Union Of India & Ors.
2009 Latest Caselaw 2358 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     WPC No. 9362/2004


                Judgment reserved on: 21.04.2009
                Judgment delivered on: 30.05.2009

%

Shri Satish Chandra Mishra                          ...... Petitioner
                               Through: Mr. I.C. Mishra, Advocate

                      versus

Union of India & Ors.                        ..... Respondent
                               Through: Ms. Saroj Bidawat, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.      Whether the Reporters of local papers may               Yes
        be allowed to see the judgment?

2.      To be referred to Reporter or not?                      Yes

3.      Whether the judgment should be reported                 Yes
        in the Digest?

KAILASH GAMBHIR, J.

*

1. By way of this writ petition, the petitioner Sh. Satish Chandra

Mishra seeks directions for setting aside rejection Order dated

23.7.2001, denying the Swatantrata Sainik Pension to the petitioner,

passed by the respondent no.2. The petitioner has also sought

directions against the respondents for grant of pension as per SSS

Pension Scheme 1980.

2. The facts as set out in the petition are as under:

The petitioner is a senior citizen. He had participated in Quit India

Movement i.e. also known by August Movement, 1942 and due to

participation in that movement a criminal case was registered against

the petitioner and his colleagues as G.R. No. 75/42 dated 20.08.42

titled as Emperor versus Hira Singh and others and the petitioner was

named accused in the above mentioned case, but the petitioner was

not arrested at the place of occurrence and absconded. An NBW was

issued against the petitioner, despite that the petitioner was not

arrested. Proceedings under Sections 82-83 Cr.P.C. took place against

the petitioner and declared P.O. Upto December, 1943 the petitioner

was underground due to apprehension of arrest by the English

Government and the petitioner was active and he had been working for

the freedom of India along with his other colleagues. The petitioner

applied for Swatantra Sainik Samman Pension Scheme 1980-81 in the

office of respondent Nos. 2 and 3. State of Bihar/respondent No. 3

recommended the name of the petitioner for grant of S.S.S. Pension

after due consideration and verification but still the respondent No. 2

had rejected the application of the petitioner. Aggrieved with the said

actions of the respondents, present petition has been filed by the

petitioner

3. The contention of counsel for the petitioner was that the Freedom

Fighter Scheme was introduced by the Govt. of India in 1972 in which

the normal eligibility fixed for grant of pension was six month

imprisonment while participating in Freedom Movement and the same

was relaxed under S.S.S. Pension Scheme, 1980-81. The counsel

urged that the said 1980-81 scheme also provided for those freedom

fighters who had absconded due to registration of a criminal case.

Under this scheme petitioner had applied for grant of S.S.S. Pension

being an absconder and accordingly mentioned the same in his

application and the same was also certified by the prominent freedom

fighters who were his colleagues as required under the said scheme.

The counsel maintained that the petitioner did not mention the

criminal case number as at the time of filing the said application under

the scheme he could not recollect it but later upon his remembering

the same, which was also confirmed by his friend Hira Singh, a certified

copy of the same was applied for but no records were available for the

same and this fact is admitted by both, the petitioner and Hira Singh,

by way of affidavit. The counsel urged that upon the receipt of the

verification report of the case bearing GR No. 75/1942, the respondent

no. 2 vide letter no. 525/General dated 29/11/1995 revealed that the

said records were destroyed on 24/12/1949; the case started in 1942

and culminated on 20/3/1943 and Hira Prasad Singh was the main

accused therein. The counsel submitted that the application of the

appellant was rejected by the respondent no. 2 vide orders dated

23/7/2001 on the ground that the petitioner did not submit sufficient

documents to prove his undergrounding upon the case having been

registered against him. It was also stated by the respondent no.2 that

the application made by the petitioner was an after thought and the

fact that the petitioner did not mention the criminal case number in the

application led to an adverse inference and thus the conditions

mentioned in the S.S.S. Pension Scheme were not fulfilled by the

petitioner. The counsel contended that the said act of rejection of the

application of the petitioner is unconstitutional and violative of

principles of equality enshrined in Art. 14 of the Constitution and the

respondent did not consider the documents submitted by the

petitioner in their true spirit. The counsel also averred that the

petitioner himself met the respondent no. 2 on 11/8/2001 and gave an

application for reconsideration but no action has been taken on the

said application and therefore, petitioner was forced to send a legal

notice dated 26/4/2004 to respondent no. 1. The counsel relied on

following judgments in support of his contentions:

1. Mukund Lal Bhandari & Ors. Vs. UOI & Ors. - AIR 1993 SC

2127;

2. Smt. Subhadrabai vs. UOI - 86 (2000) DLT 678; and

3. Kachru vs. UOI - 2001 (I) AD (Delhi) 364

4. Per contra counsel for respondent no. 1 submitted that to prove

underground sufferings, the scheme itself mentions the primary and

secondary evidences, which are relevant and should be adduced by

the applicants. The counsel maintained that The claim of underground

suffering is considered subject to furnishing of the following evidence:-

(i) Documentary evidence by way of Court‟s /Govt.‟s orders

proclaiming the applicant as an absconder, announcing an award

on his head or for his arrest or ordering his detention. OR

(ii) Where records of the relevant period are not available, a non-

availability of records certificate (NARC) from the concerned

State/Union territory Administration along with a Personal

Knowledge Certificate (PKC) from a prominent freedom fighter

who has proven jail suffering of a minimum two years and who

happened to be from the same administrative unit.

5. The counsel averred that the petitioner neither submitted the

NBW‟s issued against him and nor even the NARC, which was issued to

him as per the reports. The counsel further urged that mere production

of the report and affidavits by fellow freedom-fighters is not sufficient

to avail benefits under the scheme. The counsel also contended that

the case bearing GR No. 75/42 bore the name of Sh. Hira Prasad Singh

and the contention of the petitioner that he falls in the category of

„others‟ is of no assistance, as it is well settled that a person cannot

claim parity on being in the category of „others‟. The counsel relied on

judgment in Mukund Lal Bhandari & Ors. Vs. UOI & Ors. - AIR 1993 SC

2127, in support of her contentions.

6. I have heard counsel for the parties and perused the record.

7. During the Silver Jubilee year of Independence a Central Scheme

for grant of pension to freedom fighters and their eligible dependents

(Where freedom fighters have already expired) was introduced by

Government of India with effect from 15.08.1972. In 1980, the

Scheme was liberalized and renamed as "Swatantrata Sainik Samman

Pension Scheme, 1980" (the Scheme) and made effective from

01.08.1980.

8. All the persons who participated in the freedom movement in

some way or the other are not eligible for Samman Pension. Only

following category of freedom fighters are eligible for the Samman

Pension under the Scheme subject to furnishing of the specified

evidences:-

Eligible dependents of martyrs: - A martyr is a person who died or

who was killed in action or in detention or was awarded capital

punishment due to participation in the freedom struggle of India.

Relevant documents from official records and newspapers of the

relevant time are considered as evidences in such cases.

Imprisonment :- A person who had suffered minimum imprisonment

of six months (3 months in case of women, SC/ST freedom fighters) on

account of participation in freedom struggle subject to furnishing of the

following evidences:-

(a) Imprisonment/detention certificate from the concerned jail

authority, District Magistrate or the State Govt. indicating the period of

sentence awarded, date of admission, date of release, facts of the case

and reasons for release.

(b) In case records of the relevant period are not available, the

secondary evidences in the form of 2 co-prisoner certificates (CPC)

from freedom fighters who have proven jail suffering of minimum 1

year and who were with the applicant in the jail could be considered

provided the State Government/Union Territory Administration

concerned, after due verification of the claim and its genuineness,

certifies that documentary evidences from the official records in

support of the claimed sufferings were not available. In case the

certifier happens to be a sitting or Ex. M.P./ M.L.A., only one certificate

in place of the two is required.

Underground: - A person who on account of his participation in

freedom struggle remained underground for more than six months

provided he was;

A. a proclaimed offender; or

B. One on whom an award for arrest was announced; or

C. one for whose detention, order was issued but not served.

Internment/Externment: - A person who, on account of

participation in the freedom struggle, was interned in his home or

externed from his district for a minimum period of 6 months is eligible

subject to furnishing of order of internment or externment issued by

the competent authority, from official records. In absence of the official

records, NARC from the State Govt./ UT Administration concerned,

along with a certificate from prominent freedom fighter, who had

proven jail sufferings of at least two years; who belonged to the same

administrative unit and whose area of operation was same as that of

the applicant, should be furnished.

Loss of property: - A person whose property was confiscated or

attached and sold due to participation in the freedom struggle is

eligible subject to furnishing of orders of confiscation and sale of

property, provided that the persons whose property was restored are

not eligible for Samman Pension.

Permanent incapacitation :- A person who on account of

participation in freedom struggle, became permanently incapacitated

during firing or lathi charge subject to furnishing of:-

(a) certificate from the District Magistrate stating that permanent

incapacitation was done by bullet injury/lathi charge sustained during

participation in the National Freedom Struggle and

(b) Medical certificate from the Civil Surgeon in support of the

handicap.

Loss of Government Job: - A person who lost his Govt. job for

participation in freedom struggle is eligible subject to furnishing of

orders of dismissal or removal from service. However, persons who

were reinstated in service before expiry of two years from their

dismissal or removal from service and were in receipt of benefits or

pay and allowances are not eligible for pension.

Canning/Flogging/Whipping: - A person who was awarded the

punishment of 10 strokes of caning/flogging/whipping due to his

participation in freedom struggle is eligible subject to furnishing of

copies of orders passed by the competent authority from official

records.

9. As regards, power of judicial review exercised by this Court

under Art. 226 of the Constitution of India, Hon'ble Supreme Court in

the case of Union of India Vs Mohan Singh and others. (JT

1996(8) S.C.341) has held -

"This Court in Mukand Lal Bhandari and others Vs. Union of India and others. [(1993) SUPP. 3 SCC 2 (para 6)] had held, as regards the sufficiency of the proof, that he 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 the function of the Government to do so. We would, therefore, direct accordingly."

10. The issue again came up before the Apex Court in the case of

Union of India Vs. R.V.Swamy Air 1997 SC 2069. Hon'ble

Supreme Court, after considering the issue at length, held -

"In this case, the evidence does indicate that there is no proof of any warrant issued against the respondent as a proclaimed offender nor is there any evidence of actual proof indicating actual sentence." ( para7)

"Under these circumstances, the reliance on the certificate issued by the persons mentioned in the judgement of the High Court is a matter of appreciation of evidence." ( para 8)

"In view of the above consideration, it being a pure appreciation of evidence, the High Court was not justified in directing grant of freedom fighter pension to the respondent." ( para 10)

"Of late, large number of cases have been coming up quite frequently for grant of Freedom Fighter Pension on the basis of the certificate issued by some pensions with status of freedom fighters and are by and large not found to be acceptable to the Government of India. Since several matters are coming up to this Court, It is for the Government of India to re-consider the matter and to lay down appropriate clear guidelines for the so called freedom fighters who issued certificates to persons who come forward for Freedom Fighters Pension. Learned Counsel for the respondent has stated that since the State Government has recommended the case of deceased - respondent for grant of Freedom Fighter Pension, the respondent widow may be given liberty to approach the State government in that behalf. Liberty is given to her to approach the State Government. It is for the State Government to consider the application according to their guidelines and dispose it of on merits." ( para 11)

11. Therefore, while making judicial review of administrative decision,

the court is not supposed to sit as Appellate Authority, and substitute

its own findings in place of findings recorded by the authorities. As is

often said, the court while making judicial review has to see the

correctness or otherwise of the decision making process and not the

correctness of the decision itself. Where the court finds that there were

materials available before the authority, on the basis of which the

impugned decision could be arrived at, it is not supposed to go in to

the question of adequacy of the material.

12. In the instant case, the petitioner applied for SSS pension under

the 1980-81 Scheme in the office of respondent Nos. 2 & 3. Shri Ranjan

Kumar Gupta on behalf of respondent No. 3 gave his statement by way

of affidavit admitting that the petitioner claimed pension based on

underground suffering during freedom movement from August, 1942

to December, 1943 and in support of his claim petitioner produced

certificate of the non-availability of Court record issued from Deoghar

record room and personnel knowledge certificate of Shri Dhokal Mahte

and Shri Parmanand Singh. He also stated that the matter of the

petitioner was put up before the meeting of District committee held on

15/16.10.92 and the said committee recommended his case for

pension and accordingly, same was put up before the State Advisory

Committee held on 20/21.8.1993. Since his case was recommended by

State Advisory Committee for pension, therefore, certificate issued by

State Government was sent to Government of India vide letter No.

1827 dated 28.6.1994. Surprisingly, the Government of India vide

order dated 23.7.2001 rejected the claim of the petitioner. The said

order is reproduced as under:-

"To,

Satish Chandra Mishra S/o Late Braj Mohan Mishra Village Mishra Jamua Post SangramLodia, P.S. Jasidih Dist. Deoghar Jharkhand

In the matter of

Subject: Swatantra Sainik Samman Pension

Sir, I hgave to say on the above mentioned subject matter regarding or application dated 11/04/2002 after consideration I have been directed to communicate you that due to below menionted reasons your grant of S.S.S. Pension cannot be possible because

1. That you have not mentioned in your application about your under ground suffering period. You have submitted an affidavit in support of your underground suffering in June, 1993 after 13 years in that you have mentioned the underground suffering from August, 1942 to December, 1943 whichis after thought.

2. That you have not claimed as an accused in GR No. 7542.

3. That Shri Bhuvneshwar Pandey has not mentioned the reason of your absconding in his personal knowledge certificate as per N.A.R.C. of GR 7542 it had registered agasint Hira Singh and there is no account about participation of other accused on this basis your participation is not proved after all case was disposed of on 20/03/43.

4. As per provisions of S.S. Pension Scheme 1980 anybody may be suffered as an absconder 6 months or more being participant of freedom struggle because (a) he was

proclaimed offender (b) prize was announce for his arrest/death or (c) warrant was issued but not served. You have not submitted any Government authentic documents in ministry which proved that your 6 months or more under ground suffering.

Yours faithfully Sd/-

Virendra Kumar Under Secretary Govt. of India"

13. According to the SSS Pension Scheme, to prove underground

suffering the applicant has to furnish following documents as

evidence:-

"(i) Documentary evidence by way of Court‟s /Govt.‟s orders proclaiming the applicant as an absconder, announcing an award on his head or for his arrest or ordering his detention. OR

(ii) Where records of the relevant period are not available, a non-availability of records certificate (NARC) from the concerned State/Union territory Administration along with a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be from the same administrative unit."

14. The petitioner had furnished non-availability record certificate

(NARC) and also Personal Knowledge Certificate (PKC) of Shri Dhokhal

Mahte and Shri Parmanand Singh, both were veteran freedom fighters.

Clearly, the petitioner fulfilled the aforesaid second condition.

15. It is no more res integra that the standard of proof required in

cases relating to SSS Pension is not to be proved beyond reasonable

doubt and mere preponderance of probabilities is sufficient. In this

regard in Gurdial Singh vs. UOI (2001) 8 SCC 8, the Hon‟ble Apex

Court observed as under:-

"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."

16. The ground of rejection given in the order dated 23.7.2001 of

Government of India that there is nothing to prove involvement of the

petitioner in case bearing GR No. 7542, I feel that the certificates of

HIra Singh, Shri Dhokhal Mahte and Shri Parmanand Singh are

sufficient to prove that the petitioner was involved in case bearing No.

GR No. 7542. Furthermore, the verification report dated 29.11.1995 is

also material. Also, the petitioner need not prove his case beyond

reasonable doubt as discussed above & all that is required by the

Government is to see that the factum of eligibility is proved by

preponderance of probabilities.

17. Another ground for rejection was that the petitioner took 13 years

to submit an affidavit in support of his claim that he underwent an

underground suffering from August, 1942 to December, 1943. It is a

matter of common knowledge that those persons who participated in

freedom struggle have now grown old, the present petitioner, who

participated in quit India Movement of 1942 is of 90 years of age. We

cannot expect such persons to remember minutely everything. In this

regard, the Hon‟ble Apex Court has in Mukund Lal Bhandari & Ors

vs UOI & Ors. AIR 1993 SC 2127 in para 4 has observed as under:-

"4. As regards the contention that the petitioners had filed their applications after the date prescribed in that behalf, we are afraid that the Government stand is not justifiable. It is common knowledge that those who participated in the freedom struggle either at the national level or in the erstwhile Nizam State, are scattered all over the country and most of them may even be inhabiting the remotest parts of the rural areas. What is more, almost all of them must have now grown pretty old, if they are alive. Where the freedom fighters are not alive and their widows and the unmarried daughters have to prefer claims, the position may still be worse with regard to their

knowledge of the prescribed date. What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it ill behoves the Government to raise pleas of limitation against such claims. In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependants and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes. The Scheme has rightly been renamed in 1985 as the Swatantra Sainik Samman Pension Scheme to accord with its object. We, therefore, cannot countenance the plea of the Government that the claimants would only be entitled to the benefit of the Scheme if they made applications before a particular date notwithstanding that in fact they had suffered the imprisonment and made the sacrifices and were thus otherwise qualified to receive the benefit. We are, therefore, of the view that whatever the date on which the claimants make the applications, the benefit should be made available to them. The date prescribed in any past or future notice inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid time-limit.

Coming now to the last contention advanced on behalf of the Government, viz., that the benefit of the Scheme should be extended only from the date the claimant produces the required proof of his eligibility to the pension, we are of the view that this contention can be accepted only partially. There have been cases, as in the present case, where some of the claimants had made their applications but either without the necessary documentary proof or with insufficient proof. It is unreasonable to expect that the freedom fighters and their dependents, would be readily in possession of the required documents. In the very nature of things, such documents have to be secured either from the jail records or from persons who have been named in the Scheme to certify the eligibility. Thus the claimants have to rely upon third parties. The records are also quite old. They are bound to take their own time to be available. It is, therefore, unrealistic to expect that the claimants would be in a position to produce documents within a fixed time-limit. What is necessary in matters of such claims is to ascertain the factum of the eligibility. The point of time when it is ascertained, is unimportant. The prescription of a rigid time-limit for the proof of the entitlement in the very nature of things is demeaning to the object of the Scheme. We are, therefore, of the view that neither the date of the application nor the date on which the required proof is furnished should make any difference to the entitlement of the benefit under the Scheme. Hence, once the application is made, even if it is unaccompanied by the requisite eligibility data, the date on which it is made should be accepted as the date of the preferment of the claim whatever the date on which the proof of eligibility is furnished."

18. In view of the observations made by the Supreme Court in the

aforesaid case it is manifest that the delay in submission of evidence

etc. regarding the claim is no ground for rejection of their claim.

19. Be that as it may, even an ordinary prudent man would know that

in the absence of any Court record to prove the petitioner having

suffered underground sufferance, only his colleagues and

contemporaries could have helped him in remembering it. Thus delay

is no ground for rejection.

20. On considering the aforesaid discussion and the factual scenario

of the present case and also considering that respondent No. 3 had

recommended and certified the petitioner for SSS Pension, I do not find

any reason for the UOI to decline petitioners request for SSS Pension.

21. Today as we freely move around in our country without anyone

questioning or imposing any kinds of restrictions on us we feel satisfied

and contended. But this satisfaction is due to the efforts made by our

freedom fighters to free our country from the British rule. It is because

of our freedom fighters that today we are enjoying our freedom. Their

satyagrahas, sacrifices, and tortures have resulted in the freedom that

we enjoy today in our motherland India. Free India is a gift to each one

of us from these freedom fighters. As a mark of respect and to pay are

gratitude to them the Govt. started the SSS Pension scheme. But cases

like the present one show the apathy and pithiness of our Govt. on one

hand it launches SSS Pension Scheme and on the other hand it

arbitrarily denies the same to such freedom fighters who are eligible

for it. The govt. should not deal with such matters in an arbitrary and

shabby manner. These freedom fighters who now are very aged should

not be made to run from pillar to post for grant of SSS Pension for

which they are eligible. The govt. should be little more considerate

and thoughtful while dealing with such cases.

22. In view of the above discussion, the rejection order dated

23.7.2001 passed by respondent No. 1 UOI is set aside. The

respondent No. 1 is directed to grant SSS Pension to the petitioner

from the date of the application i.e. 3.2.1981 within two months from

today.

23. In view of the above discussions, the present petition is allowed

with aforesaid directions.

May 30, 2009                              KAILASH GAMBHIR, J.