Virma Devi vs Director Soldier Welfare And ...
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        HIGH COURT OF UTTARAKHAND AT NAINITAL

                    Writ Petition (M/S) No. 556 of 2021

Virma Devi                                                     .....Petitioner
                                       Versus
Director Soldier Welfare and Rehabilitation Office and others
                                                   .... Respondents
Present :-
Mr. Subhash Upadhyaya, Advocate for the petitioner.
Mr. T.S. Phartiyal, Deputy Advocate General for the State of Uttarakhand.


                                                        Dated: 9th August, 2021

                               JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

(Through Hybrid Mode)

The petitioner, in the present Writ Petition, is of 94 years of age and is a war widow, whose husband, late Mr. Hayatu Tamta, who had served as Soldier in the Armed Forces and was engaged in the army operation during the Second World War, had met with the sad demise later.

2. Recognising the services of the armed personnel, who laid their life in the Second World War, or even if they were the survivors after the army operations, the undivided State of U.P., had formulated a scheme called as 'Uttar Pradesh Ke Niwasi Dwitiya Viswa Yudh Ke Bhutpurva Sainiku Athwa Unki Vidhwao Ko Pension Swikrit Karne Ki Niyamawali, 1990. As per the said Rules of 1990, which was promulgated, it was a welfare legislation for the purposes of extending the pensionary benefits to the family members of the armed forces, particularly the widow, who participated in the Second World War, a very nominal pension was determined to be paid to them @ Rs.100 p.m. w.e.f. 1st August, 1990. But, however, the scheme, which was formulated in 1990, it laid down certain parameters and criterion, which were required to be filled in by the

applicant, who contended himself to be the eligible beneficiary under the said Scheme and it required submission of an affidavit, containing the particulars that he was not the beneficiary of any other pensions granted by the State of his residence or any other State.

3. The impugned action, which has been taken, against the present petitioner is on a premise that the late husband of the petitioner, who had now met with the sad demise on 6th February, 2013, was given the pension and the benefits, w.e.f. August, 1990 till December 2012, and this pensionary benefits was given after reckoning the services rendered by him for the period from 02.02.1944 to 11.05.1946. After the death of the husband on 06.02.2013, the petitioner, who was the widow, was also extended the benefits of pension in continuation thereto, under the Rules, as made applicable. Subsequent to the creation of the State of Uttarakhand, the Rules called as 'Uttarakhand Ke Niwasi Dwitiya Viswa Yudh Ke Bhutpurva Sainiku Athwa Unki Vidhwao Ko Pension Swikrit Karne Ki Niyamawali, 2002, which was substituted as to be the Rules of 2002, as applicable in the State of Uttarakhand.

4. The petitioner was extended the benefits on the volition of the respondents, and got the pension under the Scheme of 2002, as applicable to the widow of soldier of 2nd World War, State of Uttarakhand, for the period from January, 2013 till August, 2019, for the purposes of availing the benefits under the Scheme of 2002, it was rather in continuation to the pensionary benefits, which was given to the war widow, under the terms of the earlier scheme of 1990, which was continued to be extended and in pursuance to the promulgation of the new Scheme / Rules of 2002, by the State of Uttarakhand, the petitioner has come up with the specific case, that she has not given any affidavit at any stage, ever verifying any factual aspect, which existed at the time when her late husband had submitted an application in pursuance to the Rule of 1990. But, however, since the respondents have contended that the late husband of the petitioner was

getting the pensionary benefits from Bihar Police, hence, the husband's affidavit which was said to have been submitted on 7th January, 1997, was giving a false averments and thus the entire amount of pensionary benefits extended under the Scheme of 2002 deserves to be recovered from the petitioner.

6. They have further submitted that in order to justify their recovery, that in accordance with the clause referred in the Rules, as framed in 1990 and thereafter, in 2002, by the State of Uttarakahnd, it contemplated that in case if the affidavit or any contents thereof was found to be false, the amount would be recovered as arrears of land revenue. They have further taken a recourse that the petitioner had submitted an undertaking on 18th December, 2020, that she would be paying back the amount allegedly said to be due on account of the payment of pensionary benefits to her late husband and later her to the tune of Rs.5,82,184/- in easy instalments and this was also constituting, as to be one of the basis for taking the impugned action.

7. As far as this Court is concerned, I am of the view that either of the schemes of 1990 or 2002, they were a beneficial scheme provided to the soldier of the 2nd World War, who participated in the Second World War and thereafter to their widows and since the benefit was extended to the petitioner based on the affidavit which was submitted by the late husband of the petitioner in 1997, any of its averments, at this highly belated stage and that too after 1997, cannot be extracted to be drawn, to be read against the petitioner for the purposes of the impugned action. Even otherwise, if it is presumed that the petitioner has given an undertaking, to remit an amount, that goodwill gesture of the petitioner itself will not create an embargo or disentitled her to sustain the benefit of pension, which was already given to her by the State, on their own act and after verification of the records, and hence, merely an undertaking given by the widow will not entitle the State to recover the amount, which was otherwise bonafidely paid to the widow of the soldier.

8. Hence, the reason, which has been given therein by the respondents in the impugned orders about the pensionary benefits being derived by the late husband of the petitioner from Bihar Police, it was a much belated afterthought, which was taken against the petitioner after expiry of almost more than three decades from the date of submission of the affidavit and that too after the death of late husband in 2013. The entire action would be arbitrary and contrary to the factual backdrop, under which, the pensionary benefits admittedly were sanctioned at the behest of the respondents.

9. Learned counsel for the petitioner had made reference to an earlier judgment rendered by me on 15th February, 2018, in Writ Petition (M/S) No. 272 of 2018, Rajeshwari Sharma Vs. State and others, where almost an identical view and principle was dealt with by this Court and particularly, he has made reference to the contents of para 78 of the judgment, where the rational for the remittance of the pensionary benefits to the freedom fighter, or to a war widow has been dealt with by the Hon'ble Apex Court, was elaborately considered by this Court in para 78 of the judgment, which is extracted hereunder :

78. In case of Gurdial Singh vs. Union of India & others reported in (2001) 8 SCC 8, in its para nos.6, 7 & 8 which is quoted here under:-

6. The scheme was introduced with the object of providing grant of pension to living freedom fighters and their 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 expectation 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 they had suffered 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.

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 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. We have noticed with disgust that the respondent Authorities have adopted a hypertechnical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and An evaluation close mind completely ignoring the verdict of this Court in Mukund Lal Bhandari's case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in CWP No.3790 of 1994 entitled Mohan Singh vs. Union of India decided on 1.6.1995 and CWP 14442 of 1995 decided on 11.12.1995."

10. Hence, in view of the aforesaid ratio also, the action of the respondents would be arbitrary and contrary to the settled ratio of the Hon'ble Apex Court.

11. Hence, in that view of the mater and for the reasons aforesaid that since the petitioner was not instrumental in any manner whatsoever in submitting any affidavit or deriving a wrongful benefit under welfare scheme, even after the enforcement of the Scheme of 2002, for getting the pensionary benefits, the entire recovery proceedings, which has been instituted by the respondents as a consequence of the orders dated 13th May, 2020 and 3rd February, 2021, cannot be sustained and they are hereby quashed. The entire recovery proceedings, particularly for the recovery of the pension already paid, from the war widows of the soldier of the Second World War, cannot be sustained. It is quashed. The respondents are restrained from making any recovery from the petitioner of the alleged amount shown in the impugned orders. It is further directed that the amount of Rs.1 lac, which was deposited by the petitioner in terms of the interim order passed by the Coordinate Bench of this Court, that would be remitted forthwith to the petitioner, within a period of one month from today, and thereafter, the respondents are directed to continue to remit the family pension to the war widow, i.e. the petitioner, herein, as per the Rules of 2002.

12. Subject to the above directions, the Writ Petition is allowed.

(Sharad Kumar Sharma, J.) 09.08.2021 Shiv