Delhi High Court
Sukhai Thakur vs Uoi And Ors. on 11 April, 2012
Author: Suresh Kait
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11th April, 2012
+ W.P.(C) 2022/2012
SUKHAI THAKUR ..... Petitioner
Through : Mr.C. Mishra, Adv.
versus
UOI AND ORS. ..... Respondents
Through : Ms. Sweety Manchanda, CGSC for R1.
.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the instant petition, the petitioner has sought issuance of writ of
mandamus to direct the respondents to grant the SSS Pension to the
petitioner from the date of application i.e. 15.09.1981 and to quash the
impugned rejection letter dated 14.12.2007.
2. It is further prayed that respondent No. 1 be directed to take the
appropriate action against the erring officer who has exercised the power
malafidely and beyond the Benovent Scheme despite the several orders from
the Apex court and also by various High Courts.
3. On perusal of the impugned letter dated 14.12.2007, the petitioner has
claimed underground suffering during 18.08.1942 to 30 September. He has
submitted a copy of extract of order sheet of GR No. 834/42 and Personal
Knowledge certificate (PKC) of Sh. Yamuna Singh.
4. As per the provisions of the SSS Pension Scheme, 1980, any applicant
who claims underground sufferings is eligible for Samman pension,
provided the following conditions are fulfilled :-
Underground Suffering :- 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 or heard was announced; or
C. one for whose detention, order was issued but not served.
5. It also defines the terms Primary evidence and Secondary evidence,
which reads as follows:-
Primary evidence : Documentary evidence by way of
Court's/Government's orders proclaiming the applicant as an
absconder, announcing an award on his head or for his arrest or
ordering his detention. According to SSS Pension Scheme, 1980,
absconsion on issue of warrant of arrest is not an eligible suffering for
grant of SSS pension, unless the same is followed by the order of
proclaimed offender/or award for arrest on head or detention order.
Secondary evidence: In the absence of primary record-based
evidence, a Non-availability of Records Certificate (NARC) from the
concerned State Government/Union Territory Administration along
with a Personal Knowledge Certificate (PKC) from a prominent
freedom fighter who has proven jail suffering minimum of two years
and who happened to be from the same administrative District can
be submitted as supporting evidence to the claim.
Where records of the relevant period are not available, Non-
availability of Records Certificate (NARC) from the concerned
authority is a mandatory pre-requisite for secondary evidence. The
NARC should not be general or vague, but should conform to the
instructions, inter-alia, require the State Governments to issue on
NARC, only after due verification from all sources. The NARC is
treated valid only when it is furnished by the State Government in the
following manner:-
"All concerned authorities of the State Government who could
have relevant records in respect of the claim of the applicant,
have been consulted and it is confirmed that the official records
of the relevant time are not available.
The claims of Samman pension can be considered by the
Central Government only when these are duly verified and
recommended by the State Governments/Union Territory
Administrations concerned alongwith the basis such recommendation
in accordance with the provisions of the Scheme. As per the Scheme,
the verification and recommendation report of the State
Government/Union Territory Administration is mandatory in view of
the fact that the documents and other evidences of the claims are in
the possession of the State Governments/Union Territory
Administrations and not with the Central Government. However, it is
also to mention that the Central Government has to keep all
documents/reports/evidence in view and to take a decision strictly in
accordance with the eligibility criteria and evidentiary requirements of
the Central Scheme. A positive recommendation of the State
Government is, therefore, not binding on the Central Government (if
the claim does not satisfy the eligibility criteria and evidentiary
requirements prescribed in the Central Scheme).
The respondent/UOI, Ministry of Home Affairs, while rejecting
the application of the petitioner found following
shortcomings/discrepancies, which are reproduced as under:-
(I) He has not furnished record-based primary evidence, duly
verified by the State Government, in support of his claimed
underground suffering. He has submitted a copy of extract of order
sheet of GR No. 834/42 which is not acceptable as the State
Government has not verified the document from official records.
(II) In addition, the document i.e. extract of GR No. 834/42
furnished by the applicant in support of his claimed underground
suffering, does not indicate the exact period of his underground
suffering. It does not indicate whether Sh. Sukhai Thakur absconded
on being (i) a proclaimed offender (ii) one on whom an award for
arrest/head was announced; or (iii) one whose detention order was
issued but not served, which is a mandatory requirement for sanction
of pension under the provisions of the Scheme. It also does not
indicate the parentage of the claimant to ensure the genuineness of the
person. As such, this cannot be accepted as a record based document
for establishing his eligibility for grant of pension.
(III) He has not furnished a valid Non-availability of Records
Certificate (NARC) from the State Government (i.e. the competent
authority), having all ingredients prescribed therefore (as indicated in
para 4 above)
(IV) In the absence of a valid NARC, secondary evidence, i.e.
personal Knowledge Certificates (PKCs) cannot be considered and are
not acceptable. However, a copy of the PKC submitted by him from
Sri Yamuna Singh has been scrutinized. The same is not acceptable as
the certifier has not furnished any record/evidence of his own jail
suffering of minimum two years (i.e., he has furnished no evidence to
establish that he is an eligible certifier) (as indicated in para 4 above).
Further, it is also not acceptable as the certifier is confirming
underground suffering of the applicant for the period when he himself
has stated to have been in jail. This view has even been upheld by the
Hon'ble Patna High Court in CWP No. 10450/2000 in case of Sh.
Hari Nandan Singh Vs. UOI and others vide judgment dated
23.10.2000.
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
evidence 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
freedom fighter who has been granted Samman pension
also grants such certificate for which they cannot be said
to be competent in the facts and circumstances
aforementioned.
(V) State Government has not given its specific
recommendation for grant of Samman pension in his case.
(Earlier recommendation dated 18.02.1993 cannot be treated as
valid since GR could not be verified by the State Government
in its later report).
6 Ld. Counsel for the petitioner has failed to satisfy the court that the
petitioner comes under the provisions of Swatantra Sainik Samman Pension
Scheme, 1980. He has only relied upon the GR No. 834/42, which does not
speak about the suffering of 6 months. Therefore, it does not support the
petitioner. There is no certification from the State Govt. to the effect that
record qua the petitioner not available. Even the certificate of personal
knowledge issued by Sh. Yamuna Singh is irrelevant, because the petitioner
failed to produce the proof of suffering for two years of the above named
person. Therefore, the petitioner neither has primary evidence nor
secondary evidence as per scheme to prove his case.
7. In view of above discussion, I do not find any infirmity or discrepancy
in the impugned order dated 14.12.2007.
8. Accordingly, the petition is hereby dismissed.
9. No order as to costs.
SURESH KAIT, J
APRIL 11, 2012
j/jg
