Delhi High Court

Darsna Devi vs Union Of India & Others on 14 February, 2013

Author: Valmiki J. Mehta

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P.(C) No.3651/2010

%                                                          February 14, 2013

      DARSNA DEVI                                           ..... Petitioner
                                Through:   Mr. J.S.Manhas, Adv.


                       versus



      UNION OF INDIA & OTHERS              ..... Respondents
                    Through: Mr. Sunil Kumar, Adv. for R-1.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           Though this writ petition is filed by a widow claiming pension

in the Freedom Fighter Pension Scheme, as the facts stated by me here-in-

after will show that, Courts have to take indeed strict view in certain matters

so that fraudulent claims are not entertained and judicial time is not wasted.

These strong observations are being made at the outset in view of the facts

of the present case.

2.           The facts of the case are that the petitioner is a widow of late

WP(C) No.3651/2010                                                 Page 1 of 10
 Nk. Kanshi Ram. As per the case as stated in the petition, the husband of the

petitioner is stated to have joined the army in Dogra Regiment on 5.1.1937.

Nk. Kanshi Ram as per the petitioner was said to have been taken as a

prisoner of war by Japanese and he was detained as a prisoner of war from

1942 to 1944. The further pleading in the petition is that the petitioner

served with INA alongwith one Hari Singh and Khusi Ram who gave

affidavits dated 13.5.1981 that Nk. Kanshi Ram was a freedom fighter in

INA. Nk. Kanshi Ram as per the petitioner is said to have joined the Indian

Army after the Second World War and he retired from Army on 21.7.1956.

Nk. Kanshi Ram is said to have applied for Freedom Fighter Pension under

the 1972 Scheme to which it is said that no response was received and

thereafter a fresh application was made in 1981 which was rejected on

24.8.1982. Nk. Kanshi Ram thereafter died on 10.11.1995 and petitioner

who is his widow had again sent an application for Freedom Fighter Pension

on 17.8.2009. The application of the petitioner was rejected on 9.12.2009

and thereafter the present writ petition has been filed in the year 2010.

3.           On a reading of the petition filed by the petitioner herself, the

following admitted facts emerge:-

     i) The application of 1972 by Nk. Kanshi Ram was not allowed till

WP(C) No.3651/2010                                               Page 2 of 10
      1982, and therefore obviously Nk. Kanshi Ram knew that the same was

     rejected.

     ii) Nk.Kanshi Ram again applied for the Freedom Fighter Pension on

     13.5.1981 and which was specifically rejected on 24.8.1982, i.e about 27

     years before filing the present petition.

     iii) Nk. Kanshi Ram died about 13 years after rejection of his application

     in 1982 viz. on 10.1.1995.

     vi) The petitioner filed another application about 14 years after the death

     of Nk. Kanshi Ram for Freedom Fighter Pension on 17.8.2009, though

     she knew that both the earlier applications of 1972 and 1982 were

     rejected.

4.               Therefore, the present petition has been filed 27 years after Nk.

Kanshi Ram‟s second application was rejected in the year 1982 and 14 years

after the death of Nk. Kanshi Ram himself.           In view of the facts stated

above, the following paragraphs of the counter affidavit filed by the

respondent are relevant and they read as under:-

                 "03. BRIEF FACTS OF THE CASE:

                 Shri Kanshi Ram, husband of the petitioner had
                 submitted his application for freedom fighter pension
                 date 23.8.1972 (received on 30.8.1972) claiming that he
                 had joined INA and fought against the British and
WP(C) No.3651/2010                                                 Page 3 of 10
             remained in jail and under detention for more than a year
            at different palces i.e. Vidhadhari, Nusen, Changi, Cola
            Lumpur, Jiggar Gacha.          He did not furnish any
            documentary evidence. On 6.9.1973 he was asked to
            produce attested copies of discharge certificate and letters
            issued by Army Records Office giving financial aid on
            account of restoration of forfeited pay, allowances etc. if
            he was Ex-INA. ON 4.10.1973 he submitted an attested
            copy of the Discharge Certificate (i.e. Certificate of
            Service) dated 2 March 1956 (Annexure R/3) which
            shoes that he was enrolled in the Indian Amy on 5.1.1937
            and discharged on 21.7.1956, he was granted medals
            including Indian Independence Medal (this medal was
            granted to those who were in Army service on the date of
            independence i.e. on 15.8.1947). There was no break in
            his service i.e. he was not discharged in 1946 or 1947 as
            was the normal case with the INA members. After
            considering his case he was informed on 4.7.1974 that it
            is not possible to sanction pension as there is no proof of
            dismissal/discharge from the Indian Army due to INA
            activities. His case was also considered by the Punjab
            State INA Committee under the Chairmanship of
            Gen. Mohan Singh of 1st INA in April 1975 which also
            found Shri Kanshi Ram 'Not Eligible' under the
            Government of India Scheme.

                   His another application dated 13.5.1981 was
            received on 24.5.1981 alongwith a typed and unattested
            copy of discharge certificate dated 2 March 1956 in
            which he gave a false date of discharge viz. 21.7.1946
            instead of real date of discharge viz. 21.7.1956 and
            falsely indicated that he was „Dismissed‟ from Indian
            Army to mislead the authorities. On 28.6.1982 Army
            Records Office. Dogra Regiment, Faizabad (to which he
            belonged) was requested to give details of his service in
            the Indian Army and his association with INA
            (ANNEXURE R/4). In reply, Army Records Office,
            Dogra Regiment, Faizabad informed on 15.7.1982 that
WP(C) No.3651/2010                                              Page 4 of 10
             Shri Kanshi Ram was enrolled in the Army on 05.1.1937
            and remained prisoner of war from 15.2.1942 to
            15.8.1945, he was released from service on 21.7.1956
            and admitted ordinary pension w.e.f. 22.7.1956. No
            other details are available to show that he had served
            with the INA and his name also does not figure it he
            nominal roll of INA personnel held by their officer
            (ANNEXURE R/5). Therefore, on 24.8.1982, he was
            informed that his case is not covered under the purview
            of the pension scheme from Central revenue as he did not
            join INA. No representation was made by him against
            the rejection of his case in his lifetime i.e. till 10.11.1995.

                  After about 14 years of his death, the Petitioner
            Smt. Darsna Devi w/o late Kanshi Ram made a request in
            August 2009 for grant of pension as dependent widow of
            late Shri Kanshi Ram which was received through the
            Govt. of Punjab. Though the State Government have
            simply forwarded the case without their verificastion-
            cum-recommendatory report, he request was considered
            by the Ministry of Home Affairs and rejected by passing
            a speaking order dated 09.12.2009 which has now been
            impugned in the Writ Petition.

            ........

10. In response to para under reply it is submitted that as per the report dated 15.7.1982 of Records Office, Dogra Regiment, Faizabad Shri Kanshi Ram was enrolled in the Army on 05.1.1937 and remained prisoner of war from 15.2.1942 to 15.8.1945, he was released from service on 21.7.1956 and admitted ordinary pension w.e.f. 22.7.1956. No other details are available to show that he had served with the INA and his name also does not figure in the nominal roll of INA personnel held by their office. Therefore, on 24.8.1982, he was informed that his case is not covered under the purview of the pension scheme from Central revenue as he did not join

INA (ANNEXURE R-7).

........

12. In response to para under reply it is submitted that the ex-INA who had been deported to New Guinea and adjoining islands by the Japanese to serve as POW (after the 1st INA was disbanded) had not suffered any formal punishment by the British for the cause of freedom of the country from the British, they were initially not eligible for pension. Later, to grant some recognition to the sufferings undergone by them in those islands, they were admitted to Samman Pension Scheme w.e.f. 1.8.1980 in terms of relaxation provided in Ministry of Home Affairs‟ circular No.8/4/83-FF(P) dated 31.1.1983 (ANNEXURE R/8). For the purpose of scrutinizing the applications of these ex-INA personnel, a high powered Non official committee comprising of leading INA personalities viz. Genreal Shah Nawaz Khan, General Mohan Singh and others was constituted on 1.7.1983. (ANNEXURE R/9). The committee was to evolve its own procedure for the scrutiny of applications and, if necessary interview the applicants before making its recommendations to the Ministry of Home Affairs. The Non official committee in its first meeting held on 2-3 April 1984, after scrutinizing a number of applications, decided the criteria for grant of pension to them which were accepted by the Govt. and served as guidelines for deciding their cases. A copy of the Minutes of the said meeting is annexed as ANNEXURE R/10."

(underlining added).

5. A reference to the aforesaid paragraphs of the counter affidavit

show that the case of the husband of the petitioner was considered by the

Screening Committee and rejected way back in the years 1974 and 1982. In

fact, the husband of the petitioner was otherwise receiving his normal

pension as he had retired from the Army after service in 1956. The

petitioner‟s husband has also not been shown to be serving with INA. All

the facts which have been stated in the aforesaid paras of the counter

affidavit are duly supported by the documents including the certificate of

Dogra Regiment which shows that the name of the husband of the petitioner

did not figure in the nominal roll of INA presently held by the office.

6. In my opinion, in view of the aforesaid facts which have been

emerged, it is necessary to note the observations of the Supreme Court in the

case of State of Maharashtra & Ors. vs. Raghunath Gajanan

Waingankar, 2004 (6) Scale 478 and which read as under:-

"7. It is true that in Gurdial Singh's case (supra) 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's case (supra) cannot be lost sight of and give a complete go by wherein this Court has very clearly directed that:

"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 the 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 fulfillment of which alone the respondent‟s entitlement to the release of freedom fighter‟s pension depended." (underlining & emphasis added).

7. It may be noted that Supreme Court has also observed that there

are many ineligible or misconceived or bogus claims which are received and

Courts have to be careful. This aspect is stated by the respondent No.1 in

the following averments made in the counter affidavit:-

"(vii) That apart from genuine claims, a large number of ineligible/misconceived/bogus/forged claims have been made claiming SSS pension on the basis of manipulated records etc. and certificates from some freedom fighters. The Government authorities are, therefore, expected to

ensure that the liberal provisions of the scheme are not misused and only genuine freedom fighters who fulfil the criteria prescribed in the Central Scheme are granted the „Samman‟ pension.

The apex court in a number of judgments alerted the authorities to be careful so that only rightful freedom fighters get the Samman pension. Latest, in the judgment dated 20-08-2010 in Civil Appeal No.6818/10 STATE OF ORISSA VS. CHOUDHURI NAYAK (dead by LR) & Ors. with Civil Appeal No.6819/10 [UOI vs. CHOUDHARI NAYAK (dead by LR) & Ors.], the Hon‟ble Supreme Court, in Para 12 of the judgment, inter-alia observed as under:

"... There are also several unscrupulous persons who made false claims and received the benefits. The Government shall not allow such false claimants to mock at the genuine freedom fighters. What is rather disturbing is the fact that many false claimants have taken advantage of the observations of this Court that the authorities processing the applications should not be very rigid or technical in scrutinizing the applications for freedom fighter's pension...." (underlining & emphasis added).

8. Before dictating the judgment in Court after the counsel for the

parties were heard, I asked the counsel for the petitioner whether the

petitioner in view of the aforesaid facts wants to press the petition, and to

which counsel for the petitioner states that he has instructions that judgment

be passed on merits.

9. In view of the aforesaid facts, which show that the case of

petitioner‟s husband was considered 27 years before filing of the petition

and rejected in 1982 (and also in 1974 i.e. 35 years before filing this

petition), petitioner‟s husband himself died about 14 years prior to filing of

the petition, and merely by filing the repeated applications and thereafter a

Court case, the real factual aspect cannot change. The writ petition is

therefore dismissed with costs of Rs.15,000/-. The costs to be paid to the