Unknown vs. K.Kesavan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :22.06.2010

CORAM :

THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE B.RAJENDRAN

Writ Appeal Nos.2335 and 2337 of 2000

The Government of India, rep. by its Secretary, Ministry of Home Affairs, (Freedom Fighters Division), Lok Nayak Bhavan, New Delhi – 110 003. ... Appellant in both the Appeals. vs. 1. K.Kesavan ... 1st Respondent in W.A.No.2335/2000 P.Surilivelu Chettiar ... 1st Respondent in

2.The Government of Tamil Nadu, rep. by its Secretary Public, (P.P.I.V) Department, Fort St. George, Madras-600 009. ... 2nd Respondent in

W.A.No.2337/2000

both the Appeals.

Prayer: Writ Appeals filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.Nos.14743/1994 dated 23.3.1999 and 14284/1994 dated 24.3.1999.

WP NO.14743, 14284 OF 1994

Writ Petition filed under article 226 of the Constitution of India praying this court to issue a writ of Certiorarified Mandamus calling for the records relating to the order of the first respondent passed in order No.129/376/81, FF(SZ), dated 13.5.1994 and in order No.129/777/85-FF (SZ), dated 11.5.1994, respectively and quash the same and direct the first respondent to sanction and pay Swatantara Sainik Samman Pension to the petitioner from 15.8.1972 and 21.10.1980 respectively with 18% interest.

For Appellant : Mr.J.Ravindran, Addl. Solicitor General of India For Respondents : Mr.K.Vijayakumar - R1 Mr.M.Dhandapani – R2 Special Government Pleader

COMMON JUDGMENT

R.BANUMATHI,J

Writ Appeal No.2335/2000 arise out of the order in W.P.No.14743/1994 dated 23.3.1999 and Writ Appeal No.2337/2000 arise out of the order in W.P.No.14284/1994 dated 24.3.1999 whereby the learned single Judge directed the Appellant-Government of India to pay Swatantara Sainik Samman Pension (SSS Pension) from 15.08.1972 and 21.10.1980 respectively i.e. from the date of application and also to pay arrears of Swatantara Sainik Samman Pension to the 1 st Respondent(s).

2. Since the issue involved in these Appeals are one and the same, both the Appeals were taken up together and disposed of by this common Judgment.

3. 1 st Respondent applied for Freedom Fighters Pension/ Swatantara Sainik Samman Pension under Freedom Fighters Pension scheme. After local verification, State Government found that the claim of 1 st Respondent(s) is genuine and by an order dated 23.4.1981 sanctioned Freedom Fighter Pension and 1 st Respondent(s) are getting Swatantara Sainik Samman Pension from the State Government.

4. Grievance of the 1 st Respondent is that inspite of producing the documents to show that they have suffered imprisonments, the Central Government has rejected the 1 st Respondent(s) claim for Swatantara Sainik Samman Pension and filed W.P.Nos.14743/1994 and 14284/1994 respectively seeking for direction to Government of India to pay Swatantara Sainik Samman Pension to the 1st Respondent(s).

5. Relying upon 1994 Writ Law Reporter 137 [R.Thangavelu v. Government of India], learned single Judge held that if the State Government grants pension to a Freedom Fighter, the same should be accepted by the Central Government and no further proof should be insisted upon. Relying upon the said decision, learned single Judge further held that once the State Government grants pension to particular Freedom Fighter, he must automatically get the pension under Central Government without any further enquiry. Following the decision reported in AIR 1993 SC 2127 [Mukund Lal Bhandari v. Union of India], learned single Judge further held that 1 st Respondent(s)

are entitled to pension from the date of application which is challenged in these Appeals.

6. Mr.Ravindran, learned Additional Solicitor General of India for Appellant/Government of India and Mr.Dhandapani, learned Special Government Pleader appearing for 2 nd Respondent/State Government submitted that in W.M.P.No.1655 of 1994 in W.P.No.7194 of 1991 the judgment passed in 1994 Writ Law Reporter 137 [R.Thangavelu v. Government of India] was clarified and the Division Bench took the view that merely because State Government has granted pension, grant of Swatantara Sainik Samman Pension by the Central Government is not automatic. It was further submitted that Swatantara Sainik Samman Pension Scheme itself mentions the documents which are required to be produced before the Government and grant of pension by the State Government is not automatic.

7. Taking us through the documents, Mr.K.Vijayakumar, learned counsel appearing for 1 st Respondent in W.A.No.2335/2000 submitted that even though 1 st Respondent has produced co-prisoners certificate and without proper scrutiny of the same, Government of India rejected the same. It was further argued that the documents produced by the 1 st Respondent satisfies the requirements of Swatantara Sainik Samman Pension Scheme and Central Government ought to have granted pension to the 1 st respondent(s) and the learned single Judge rightly directed the Central Government to sanction Swatantara Sainik Samman Pension to the 1st Respondent(s).

8. Placing reliance upon 1994 Writ Law Reporter 137 [R.Thangavelu v. Government of India], learned single Judge proceeded under the footing that if the State Government grants pension to the Freedom Fighter, he must automatically get Swatantara Sainik Samman Pension under the Central Government Scheme without any further enquiry. As rightly submitted by the learned Special Government Pleader, the very same Division Bench in W.M.P.No.1655 of 1994 in W.P.No.7194 of 1991 clarified the position that Claimants should satisfy the guidelines. The relevant portion of orders reads as under:-

" ..... clarified that

"...... We are of the view that though our order itself sufficiently takes care of the position, but since a genuine doubt has been entertained by the parties we direct the insertion of the following words in paragraph 43 of the order in W.P.No.7194 of 1991 dated 16.12.1993 after the words ........ " or the claimants satisfying the guidelines" and before the words "and the Government cannot reject ......" "including the duration of the period of imprisonment

contemplated under the Central Government Scheme ......"

In view of the subsequent clarification by the same Division Bench, the earlier view taken by the Division Bench that once the State Government grants pension, grant of pension under Central Government Scheme is automatic no longer holds the field. In fact, in W.P.Nos.14743 and 14284 of 1994 Justice P.Sathasivam (as his Lordship then was) has referred to the clarification of the Bench in W.M.P.No.1655 of 1994 in W.P.No.7194 of 1991 and held that Central Government Swatantara Sainik Samman Pension Scheme mentions documents which are required to be produced before the Government and it is for the Central Government to scrutinise the same. Having regard to the subsequent clarification by the Division Bench, the order of the learned single Judge following 1994 Writ Law Reporter 137 [R.Thangavelu v. Government of India] is liable to be set aside.

9. Learned counsel for the 1 st Respondent submitted that 1 st Respondent produced the co-prisoners certificate and the same should have been accepted by the Central Government. Contending that coprisoner certificate ought to have been accepted by the Central Government, learned counsel for 1 st Respondent placed reliance upon (2010) 2 SCC 669 [State of Tamil Nadu and another v. A.Manickam Pillai]. In the said case, two certificates were mentioned i.e. one was by 'M', who was co-prisoner with the Respondent and also recipient of freedom fighter's pension while other issued by 'K' who was an approved certifier certifying that he knew respondent and that contents of certificate issued by 'M' were correct. In the said case before the Supreme Court, learned single Judge and Division Bench of High Court clearly observed that Respondent therein was a freedom fighter which was not disputed by the State Government and in the facts and circumstances of the case, Supreme Court declined to interfere in the matter under Article 136 of Constitution of India. In our considered view, the ratio of the said decision is not applicable to the case on hand.

10. Insofar as the documents produced by the 1 st Respondent(s), learned counsel for 1 st Respondent submitted that those documents are relevant documents of imprisonment and Central Government ought to have scrutinised the documents which the 1 st Respondent has produced in support of his claim and urged the Court to scrutinise the documents.

11. Central Government Swatantara Sainik Samman Pension Scheme mentions the documents which are required to be produced before the Government. As consistently held by the Supreme Court, only Government could pronounce genuineness of documents. The same view was taken in JT 1996 (8) SC 341 [Union of India v. Mohan Singh and others] wherein it has been held as under:-

"This Court in Mukund Lal Bhandari and others v. Union of India and others, JT 1993 (3) SC 342 had held, as regards the sufficiency of the proof, that 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."

12. 1 st Respondent in W.A.No.2335/2000 is stated to be more than 90 years old. According to 1 st Respondent, he has produced coprisoners certificate to show his imprisonment and that those documents satisfy the guidelines of Central Government Swatantara Sainik Samman Pension Scheme.

13. Submitting that Supreme Court time and again held that the matters of freedom fighters [Swatantra Sainik Samman Pension] are to be examined in liberal manner. In support of his contention, learned counsel for 1 st Respondent(s) placed reliance upon (2008) 3 MLJ 1382 [N.Palaniappan v. State of Tamil Nadu, rep. by Chief Secretary to Government, Chennai and another], wherein it has been held as under:-

"15. In Gopal Mudaliyar v. Government of India and another CDJ 2004 MHC 722 Hon'ble Justice P.K.Misra, while dealing with similar situation of rejection of pension to a freedom fighter by the Central Government under the Swadantrata Sainik Samman Pension Scheme has referred to the observations made by the Hon'ble Supreme Court in Mukund Lal Bhandari v. Union of India, AIR 1993 SC 2127 wherein the Hon'ble Supreme Court has held that giving compensation to the freedom fighters is not for the purpose of rewarding but for the purpose of honouring the person. The relevant para 4 is extracted below:

"4. The manner in which the Central Government appears to have dealt with the application can be best described as cavalier, callous and capricious. Keeping in view the practical difficulty in obtaining first hand records relating to imprisonment of a particular person in connection with freedom struggle, the Supreme Court of India and this Court in several decisions have indicated that the matters require to be examined in a liberal manner. In Mukund Lal Bhandari Vs. Union of India (AIR 1993 SC 2127), it was observed as follows: "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 for the country in the hour of its need. In fact, many of those who do not 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 in 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 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 to their kith and kin etc., are also the other benefits which have been made available to them for quite sometime now"

As held by the Supreme Court in the cases of freedom fighters pension scheme, the standard of proof required is not that of any criminal case or cases of any adjudication. It is the scheme meant to honour and to mitigate the sufferings of freedom fighters. As held by the Supreme Court, Swatantra Sainik Samman Pension are to be examined in liberal manner. Having regard to the facts and circumstances of the case, 1 st Respondent(s) are directed to make fresh application before the 2 nd Respondent/State Government and Appellant/Government of India who shall consider the same and pass appropriate orders within a period of four weeks from the date of receipt of representation.

14. In the result, the order of learned single Judge is set aside and both the Writ Appeals are allowed. 1 st Respondent(s) are directed to make fresh application before the 2 nd Respondent/State Government and Appellant/Government of India who shall consider the same and pass appropriate orders within a period of four weeks from the date of receipt of representation. Consequently, connected M.Ps. are closed. There is no order as to costs.

Sd/- Asst. Registrar.

/true copy/

Sub Asst. Registrar.

bbr

To 1. The Secretary Government of India, Ministry of Home Affairs, (Freedom Fighters Division), Lok Nayak Bhavan, New Delhi – 110 003.

• 2. The Secretary to Govt., of Tamilnadu, Public (P.P.I.V) Department, Fort St. George, Madras-600 009.
• • 1 cc to Mr.K.Ravichandrabaabu, Sr 44582 + 1 cc to The Govt, Pleader, Madras Sr 44946