Madras High Court
M.Velu (Ina) vs The Under Secretary To Govt. Of ... on 2 September, 2021
W.P.No.15654 of 2020
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 02.09.2021
CORAM:
THE HONOURABLE MR. JUSTICE M.S. RAMESH
W.P.No.15654 of 2020
and
W.M.P.No. 19500 of 2020
M.Velu (INA) ...Petitioner
Vs
1.The Under Secretary to Govt. of India,
Ministry of Home affairs,
Freedom Fighters Divisions,
2nd Floor, NDCC – II Building,
Jai Singh Road, New Delhi – 110003.
2.The Govt. of Tamil Nadu,
Rep. by Additional Secretary,
Public (Political Pension-I) Department,
Secretariat, St. George Fort,
Chennai.
3.The Collector of Thiruvallur,
Thiruvallur – 602001.
4.The Thahsildar of Ponneri,
Ponneri – 601 204. ...Respondents
1/12
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W.P.No.15654 of 2020
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus, calling for the records
of the respondent pertaining to the Order dated 02.03.2020 of the first
respondent made in F.No.52/CC/11/2018-FF/INA and quash the same
and direct the first respondent to provide the central pension from thedate
of the application along with the arrears.
For Petitioner : Mr.V.Nandagopalan
For R1 : Mr.S.Diwakar
Standing Counsel
For R2 to R4 : Mr.S.Arumugam,
Government Counsel
ORDER
By consent of both the parties, this writ petition is taken up for
final disposal.
2. The petitioner herein claims freedom fighters pension on the
ground that he was imprisoned in Rangoon Jail from May, 1945 to
December, 1945 for being a member of the Indian Independence League
in the Kambe branch formed by Shri Nethaji Subash Chandra Bose's
Indian National Army, under Swatantrata Sainik Samman Yojana from
the Central Government. His application was favourably recommended
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W.P.No.15654 of 2020
by the State Government. However, the Central Government had rejected
his application through the impugned order dated 02.03.2020,
predominantly on the ground that he had not enclosed the Jail Certificate
evidencing his imprisonment, which is a requirement under the scheme.
3. The learned counsel for the petitioner submitted that non-
enclosure of the Jail Certificate would not be fatal, in view of the
decision of the Hon'ble Supreme Court in the case of Gurdial Singh Vs.
Union of India and others reported in (2001) 8 SCC 8.
4. Per Contra, the learned Central Government Standing Counsel
appearing for the first respondent submitted that the requirement of the
scheme requires to be strictly followed by an applicant and since the
petitioner herein had not enclosed the Jail Certificate, which is a primary
document, the impugned order cannot be found fault with.
5. The learned Government Counsel appearing for the State
submitted that the Revenue Divisional Officer, Ponneri, had conducted
an enquiry and had submitted a report, based on which, the petitioner's
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W.P.No.15654 of 2020
application was forwarded on 06.07.2019 to the Central Government
with a recommendation for grant of the pension.
6. The only ground on which the petitioner's application has been
rejected is that he had not enclosed the Jail Certificate evidencing that he
was imprisoned between May, 1945 and December, 1945 in connection
with his involvement in the freedom struggle. It is the specific case of the
petitioner that he was a member of the Indian Independence League in
the Kambe branch of the Indian National Army (INA) and was
imprisoned for freedom struggle between May, 1945 and December,
1945 in Rangoon Jail. In connection with such a claim, the petitioner had
produced two Co-prisoners' Certificate, both dated 03.12.2008 from
Shri.T.Ramaiah and Shri.S.Arokiyasamy, both of whom were also
members of the INA. Apart from the Co-prisoners' Certificates, Personal
Knowledge Certificate, dated 25.08.2006 was issued by Dr. (Col.)
Lakshmi Sehgal, evidencing that the petitioner was a genuine INA
freedom fighter who had actively participated in the freedom movement
in Burma. Another Personal Knowledge Certificate, dated 17.09.2008 on
the same lines was also issued by the Tamil Nadu INA Forum.
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W.P.No.15654 of 2020
7. The Hon'ble Supreme Court in the case of Gurdial Singh's case
(supra) had taken note of the fact that it was most of the time difficult for
the freedom fighters to produce the primary documents which were
considerably old and the problem of getting those records from foreign
countries were merely impossible. The Hon'ble Supreme Court had also
observed that the pension payable under the scheme would be from the
date on which the application is made. It is in this background, the
Hon'ble Supreme Court had held that the case of the claimant under the
Central Government scheme requires to be determined on the basis of
probabilities and not on the touch-stone of the test of "beyond reasonable
doubt". The relevant observation of the order reads thus:
"The scheme was introduced with the object of
providing grant of pension to living freedom fighters
and theirs families and to the families of martyrs. It
has to be kept in mind that millions of masses of this
country had participated in the freedom struggle
without any exception of grant of any scheme at the
relevant time. It has also to be kept in mind that in the
partition of the country most of citizens who suffered
imprisonment were handicapped to get the relevant
record from the jails where thy had suffered
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W.P.No.15654 of 2020
imprisonment. The problem of getting the record from
the foreign country is very cumbersome and
expensive. Keeping in mind the object of the scheme,
the concerned authorities are required that in
appreciating the scheme for the benefit of freedom
fighters a rationale and not a technical approach is
required to be adopted. It has also to be kept in mind
that the claimants of the scheme are supposed to be
such persons who had given the best part of their life
for the country. This Court in Mukand Lal Bhandari's
case (supra) observed:
“The object in making the said relaxation was
not to reward or compensate the sacrifices made in
the freedom struggle. The object was to honour and
where it was necessary, also to mitigate the sufferings
of those who had given their all of the country in the
hour of its need. In fact, many of those who do no
have sufficient income to maintain themselves refuse
to take benefit of it, since they consider it as an
affront to the sense of patriotism with which they
plunged n the freedom struggle. The spirit of the
scheme being both to assist and honour the needy and
acknowledge the valuable sacrifices made, it would
be contrary to its spirit to convert it into some kind of
a programme of compensation. Yet that may be the
result if the benefit is directed to be given
retrospectively whatever the date the application is
made. The scheme should retain its high objective
with which it was motivated. It should not further be
forgotten that now its benefit is made available
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W.P.No.15654 of 2020
irrespective of the income limit. Secondly, and this is
equally important to note, since we are by this
decision making the benefit of the scheme available
irrespective of the date on which the application is
made, it would not be advisable to extend the benefit
retrospectively. Lastly, the pension under the present
scheme is not the only benefit made available to the
freedom fighters or their dependents. The preference
in employment, allotment of accommodation and in
admission to schools and colleges of their kith and
kin etc., are also the other benefits which have been
made available to them for quite sometime now.”
The Court categorically mentioned that the
pension under the scheme should be made payable
from the date on which the application is made
whether it is accompanied by necessary proof of
eligibility or not.
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
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W.P.No.15654 of 2020
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 favour unless the same is rebutted by
cogent, reasonable and reliable evidence."
8. A similar approach has also been taken by a learned Single
Judge of this Court by placing reliance on another decision in the case of
R.Ramalingam Vs. The Union of India passed in W.P.No.5521 of 2014
dated 21.06.2018, in the following manner:
"7. It is pathetic to note that the freedom
fighters who deserve high honour and respect from
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W.P.No.15654 of 2020
the administrators and citizens of our country, are
forced to go before them with begging bowls. Such
situation is heavily condemned by the Honourable
Supreme Court as well as by this Court in various
cases. In P.S.Periaiah and others v. The Government
of India, represented by its Under Secretary, Ministry
of Home Affairs (FFR Div.) New Delhi 110 003 and
another [W.P(MD)No.4609 of 2014, decided on
28.04.2017], my learned Brother Judge
[V.Parthiban,J.] following several judgments of the
Honourable Supreme Court and this Court, observed
as under:
"16.It is an admitted fact that the original petitioner
is 91 years old freedom fighter, when he filed this Writ
Petition. The status of the petitioner as freedom
fighter has been recognized and pension is also
sanctioned and being paid to the petitioner by the
State Government. In fact, even this claim for grant of
pension under the samman scheme was also
recognized by the Collector of District committee
constituted for the said purpose."
9. By attaching the ratio laid down in the aforesaid cases, this
Court is of the view that the petitioner herein, who is also aged about 97
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W.P.No.15654 of 2020
years now, should not be made to run from pillar to post just because he
does not possess the Jail Certificate. The test of probability could be
adopted by placing reliance on other certificates enclosed by the
petitioner, namely the Personal Knowledge Certificate issued by
Dr.(Col.) Lakshmi Sehgal, dated 25.08.2006; the Personal Knowledge
Certificate issued by the Tamil Nadu Indian National Army Forum, dated
17.09.2008; the Co-prisoners' Certificates each dated 03.12.2008 from
Shri.T.Ramaiah and Shri.S.Arokiyasamy respectively.
10. This Court is of the view that these certificates would be
sufficient enough to come to the conclusion that there was much
probability that the petitioner belongs to INA and was also imprisoned in
the Central Rangoon Jail from May, 1945 to December, 1945.
Accordingly, the petitioner can be declared as a freedom fighter who was
under imprisonment during his involvement in the freedom struggle.
Consequently, the petitioner would be entitled for the pension under the
Swatantrata Sainik Samman Scheme.
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W.P.No.15654 of 2020
11. In view of the ratio laid down by the Hon'ble Supreme Court in
Gurdial Singh's case (supra), the reasoning adduced by the second
respondent in rejecting the petitioner's application, cannot be sustained.
12. In the light of the above observations, the impugned order
dated 02.03.2020 passed by the first respondent herein is quashed.
Consequently, there shall be a direction to the second respondent herein
to forthwith pass orders, sanctioning the freedom fighters' pension under
Swatantrata Sainik Samman Scheme, as expeditiously as possible. The
second respondent shall bear in mind that the petitioner is now aged
about 97 years and hence shall take efforts to pass such orders and
consequently disburse the arrears of pension from the date of the
petitioner's original application, atleast within a period of one week from
the date of receipt of a copy of this order. The Writ Petition stands
allowed, accordingly. No costs. Consequently, connected miscellaneous
petition is closed.
02.09.2021
Index:Yes
Speaking order
hvk/drm
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W.P.No.15654 of 2020
M.S.RAMESH,J.
hvk/drm
To
1.The Under Secretary to Govt. of India,
Ministry of Home affairs,
Freedom Fighters Divisions,
2nd Floor, NDCC – II Building,
Jai Singh Road, New Delhi – 110003.
2.The Additional Secretary,
The Govt. of Tamil Nadu,
Public (Political Pension-I) Department,
Secretariat, St. George Fort,
Chennai.
3.The Collector of Thiruvallur,
Thiruvallur – 602001.
4.The Thahsildar of Ponneri,
Ponneri – 601 204.
W.P.No.15654 of 2020
and
W.M.P.No. 19500 of 2020
02.09.2021
https://www.mhc.tn.gov.in/judis/
