Madras High Court
R.K.Venkatachalam vs The Under Secretary To Government ... on 21 April, 2022
W.P.No.15150 of 2020 &
WMP.Nos.18905 & 18906 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.04.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.No.15150 of 2020 &
WMP.Nos.18905 & 18906 of 2020
R.K.Venkatachalam ... Petitioner
Vs
1.The Under Secretary to Government of India,
Ministry of Home Affairs,
Freedom Fighters Divisions,
2nd Floor, NDCC – II Building,
Jai Singh Road, New Delhi – 110 003.
2.The Collector of Thiruvallur,
Thiruvallur.
3.The Tahsildar of Ponneri,
Ponneri.
4.The Government of Tamil Nadu
Rep. by Additional Secretary,
Public (Political Pension) Department,
Secretariat, St.George Fort,
Chennai. ... Respondents
Prayer:Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the record of the
1/9
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W.P.No.15150 of 2020 &
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respondent pertaining to the order dated 27.07.2018 of the 1st respondent made
in F.No.52/CC/01/2018-FF/INA and quash the same and direct the first
respondent to provide the central pension from the date of the application along
with the arrears.
For Petitioner : Mr.V.Nandagopalan
For Respondents : Mr.Sudhir Kumar,
Sr. Central Government Standing Counsel – R1
Mr.D.Ravi Chander, Spl. Government Pleader
for Mr.Jaya Prakash, Government Advocate
- R2 to R4
ORDER
The petitioner is one Shri.R.K.Venkatachalam, who is 94 years old at the
time when this order is passed. He challenges an order passed by the first
respondent rejecting his request for pension under the Swantantra Sainik Samman
Yojana Scheme (SSSY Scheme) that provides for a samman/pension in cases of
those who have engaged in the Indian freedom struggle.
2. Entitlement under the Scheme is conditional upon the concerned person
having suffered minimum imprisonment of six months (3 months in case of women
and SC/ST freedom fighters) on account of participation in freedom struggle. The
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W.P.No.15150 of 2020 &
WMP.Nos.18905 & 18906 of 2020
incarceration is required to be established in one of two ways. The first method is
direct, by way of primary evidence that the concerned person had suffered
imprisonment. Such primary evidence is required to be by way of an
imprisonment/detention certificate from the concerned jail authority, District
Magistrate or the State Government indicating the period of sentence awarded, date
of admission, date of release, facts of the case and reasons for release.
3. In the event of primary evidence not being available, secondary evidence
may be produced in the form of 2 co-prisoner certificates (CPC) from freedom
fighters who had a proven jail suffering of a minimum of one (1) year and who
were serving their sentences with the applicant in the same jail. The State
Government/Union Territory concerned, after due verification of the claim and its
genuineness, is also required to certify both the claim, as well as the
availability/non-availability of the documentary evidences from the official
records. In case the person certifying the incarceration being a sitting or Ex. M.P./
M.L.A., only one certificate in place of the two was required.
4. Both the State and the Centre have made provisions for payment of
pension to freedom fighters and the present petitioner has been assessed and found
eligible for State pension which he is presently receiving. Since there are
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W.P.No.15150 of 2020 &
WMP.Nos.18905 & 18906 of 2020
differences in the parameters to be applied as regards the State and Central
Schemes, the mere fact that the petitioner has been found entitled to the State
Scheme would not automatically entitle him for Central pension as well. There is
no dispute on this settled position.
5. Applicants seeking Central Samman are mandated, in addition to the
evidence required under the Scheme, to seek and obtain a recommendation from
the State Government in respect of their eligibility under the Central Scheme. The
State has recommended the petitioner’s case pursuant to a decision passed in
W.P.No.734 of 2018, by order dated 19.03.2018.
6. That apart, the State Level Screening Committee has convened on two
occasions, effectively disposing several applications for Central Samman either
recommending or rejecting the claims. At the meeting held on 16.04.2022, the case
of the petitioner was once again considered and found to be acceptable. This,
however, has cut no ice with the Centre, that has proceeded to assess the petition
based on the parameters of the Central Scheme, finding it wanting.
7. Admittedly, no primary evidence is available in this case. Had it been so
available, it would consequently only require the petitioner to establish
imprisonment of six (6) months. Secondary evidence has however, been produced
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W.P.No.15150 of 2020 &
WMP.Nos.18905 & 18906 of 2020
in the form of two co-prisoners certificates, Shri.S.V.Subramani and
Shri.K.Thiyagarajan. The certificates establish that i) they, along with the
petitioner, were members in the Indian Independence League constituted by Netaji
Subash Chandra Bose in the far East to the Kyanktan Syrian Branch, Rangoon,
Burma, ii) they were arrested by British forces and imprisoned as prisoners in the
Rangoon Central Jail, iii) their incarceration spanned May, 1945 to December,
1945 and iv) the petitioner was a co-prisoner with them in the Rangoon Central Jail
between May and December, 1945.
8. The bonafides of the co-prisoners and genuineness of the statements in
their certificates have not been disputed by R1. However, the Scheme provides that
certification of a co-prisoner, to be acceptable, must require the co-prisoner to have
been incarcerated for a minimum period of one year.
9. In the present case, their period of incarceration is only 8 months and
hence, for this reason their certificates have been rejected and the petitioner’s claim
found unacceptable. No doubt, the provisions of the Scheme are required to be
satisfied stricto senso. However, the interpretation of the Scheme must be such that
all provisions are in harmony.
10. All learned counsel concur upon the position that production of direct
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evidence of incarceration, by way of certificate from the Jail authorities, is
impossible of compliance as at present. Thus, it is secondary evidence alone, if at
all, that an applicant may obtain in support of the application. The condition in this
regard is more rigorous, as the period of incarceration that the co-prisoner is
expected to have undergone, is one year as against six (6) months.
11. In cases where certificates produced by the co-prisoners are accepted on
all counts as in the present case, the period therein of incarceration of the co-
prisoner, if it exceeds six months would clearly establish that the claimant has
himself been incarcerated for a period of six months, which is the requirement
under the direct method. This, in my considered view, would suffice to establish
his eligibility for the pension.
12. In this regard, I draw support from two judgments of the Hon’ble
Supreme Court in State of Tamil Nadu V. A.Manickam Pillai ((2010) 2 MLJ 413
and Surja V. Union of India (1991 SC 462) that have been referred to and applied
by the Madurai Bench of this Court in Union of India V. K.Duraisamy and others
((2018) 8 MLJ 223).
13. In the aforesaid decision, secondary evidence had been produced by the
petitioner therein that had been rejected on the ground that the co-prisoners had not
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W.P.No.15150 of 2020 &
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undergone imprisonment for more than a year. This ground of rejection was found
unacceptable on the ground that the genuineness of the certificates had not be
doubted and hence there was no justification in rejecting the claim.
14. In line with the discussion as above, the petitioner is found eligible for
the Central Samman/pension and the impugned order dated 27.07.2018 is set aside.
15. As regards the effective date for computation of pension, learned counsel
for the petitioner would urge that the effective date be taken to be the date of
application i.e., 12.10.1974.
16. However, Mr.RajeshVivekanandan draws attention to the judgment of
the Hon’ble Supreme Court in the case of Union of India and another V.
Kaushalya Devi ((2007) 9 SCC 525), wherein an identical question came to be
answered by the Hon’ble Supreme Court stating that the grant of pension based
upon secondary evidence, should be from date of order granting pension and not
from date of application.
17. In the present case, the date of order of the District Collector
recommending the case of the petitioner for Central Pension is 04.02.2003. Hence,
applying the aforesaid ratio of the judgment of the Hon'ble Supreme Court,
pension will be computed and paid over to the petitioner from 04.02.2003
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W.P.No.15150 of 2020 &
WMP.Nos.18905 & 18906 of 2020
onwards. Let the arrears be computed and paid over within a period of six (6) from
date of this order.
18. This Writ Petition is allowed in the above terms. No costs. Connected
Miscellaneous Petitions are closed.
21.04.2022
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Index : Yes/No
Speaking Order/Non speaking Order
To
1.The Under Secretary to Government of India,
Ministry of Home Affairs,
Freedom Fighters Divisions,
2nd Floor, NDCC – II Building,
Jai Singh Road, New Delhi – 110 003.
2.The Collector of Thiruvallur, Thiruvallur.
3.The Tahsildar of Ponneri, Ponneri.
4.The Government of Tamil Nadu
Rep. by Additional Secretary,
Public (Political Pension) Department,
Secretariat, St.George Fort, Chennai.
https://www.mhc.tn.gov.in/judis
W.P.No.15150 of 2020 &
WMP.Nos.18905 & 18906 of 2020
Dr.ANITA SUMANTH, J.
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W.P.No.15150 of 2020 &
WMP.Nos.18905 & 18906 of 2020
21.04.2022
https://www.mhc.tn.gov.in/judis
