CWP No. 12309 of 2009. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 12309 of 2009. [O&M] Date of Decision: 16th September, 2010. Chhajju Ram Petitioner through Mr. S.S.Dinarpur, Advocate Versus Union of India & Ors. Respondents through Ms. K.K.Kahlon, Advocate. Mr. R.D.Sharma, DAG, Haryana. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL] The petitioner seeks quashing of the proceedings dated 29.01.2009 [Annexure P-16] and the order dated 18.02.2009 [Annexure P-17] whereby the petitioner's claim for the grant of Swantarta Sainik Samman Pension has been turned down. He also seeks a Mandamus to direct the respondents including the Union of India to grant him the aforementioned pension. [2]. The petitioner was recruited as a Sepoy in the British Army [TRG Battalion, 14, Punjab Regiment] and was posted at Ferozepur in the year 1945. The petitioner is said to have revolted against the British Imperialism on the call of Netaji Subhash Chander Bose under the Azad Hind Movement and is said to have disobeyed the orders of his superiors. The petitioner was subjected to Court Martial and having been sentenced to one year imprisonment, was lodged in Mianwali Jail [now in Pakistan]. He was dismissed from service also. While undergoing the sentence, the petitioner was CWP No. 12309 of 2009. ::-2-:: transferred to the Central Jail at Karnal from where he was finally released on 26.01.1946. The petitioner has got a jail certificate dated 15.12.1993 [Annexure P-1] as well as a discharge certificate dated 05.05.2000 [Annexure P-2] certifying his dismissal from the British Army. The petitioner asserted himself to be a 'freedom fighter' on the strength of these certificates and sought Swantarta Sainik Samman Pension. The respondents, however, rejected his claim vide order dated 18.03.1994 [Annexure P-5]. The petitioner challenged that order before this Court in CWP No. 16167 of 1994 which was disposed of with a direction to the respondents to re-consider and dispose of the petitioner's claim by passing a speaking order. Pursuant thereto, the Haryana Swantarta Sainik Samman Pension Samiti re-considered the matter in its meeting held on 21.08.2003 and recommended to the State Government to declare the petitioner a 'freedom fighter' and grant him the subject pension. The self- speaking recommendations made by the Samiti did not find favour with the State Government, who vide its order dated 04.12.2003 [Annexure P-9] again turned down the petitioner's claim. Meanwhile, the petitioner obtained the affidavits of Sarv Shri Bansi Lal Sharma and Amar Nath, Freedom Fighters [Annexures P-13 and P-14], who had already been granted the freedom fighters' pension. Both of them, in their respective affidavits deposed that the petitioner had joined Azad Hind army along with them and he was discharged from the army after the Court Martial and sentenced to one year imprisonment. The petitioner accordingly represented the State Authorities to reconsider his claim in the light of these two affidavits. The petitioner also pointed out that two similarly situated persons, CWP No. 12309 of 2009. ::-3-:: namely, Sarup Lal resident of District Rohtak and Tara Chand resident of District Patiala had been treated as freedom fighters and were granted the subject pension. [3]. The Haryana Swantarta Sainik Samman Pension Samiti reconsidered the matter and vide the impugned proceedings/order dated 29.01.2009 [Annexure P-16] has rejected the petitioner's claim after observing as follows:- “The Committee communicated in written to the applicant to appear in the meeting along with his two witnesses with their original record. The applicant appeared in the meeting and disclosed that his two witnesses are unable due to old aged and could not come in the meeting so after scrutiny of their documents in the file his case may be recommended for grant of pension. The Committee had found after scrutiny that former committee in its meeting on 21.08.2003 had recommended his case for state and centre Government pension but the Government had turned down the recommendation on that ground that Jail Certificate of the applicant does not show that non-compliance of orders were of what types, i.e., non-compliance of army orders are related to freedom movement or any other reason and now again the applicant could not explain the nature of non- compliance of army order mentioned in his Jail Certificate. In that situation all the Committee Members had recommended for rejection of the applicant's case. It was also decided in that meeting, in future if the applicant clarify that non-compliance of orders are related to freedom movement then his case could be reconsidered. Now the applicant had seek information under RTI Act regarding cases of freedom fighters Shri Sarupla resident of District Rohtak and Shri Tara Chand resident of District Bhiwani and requested to Hon'ble Chief Minister that CWP No. 12309 of 2009. ::-4-:: these two freedom fighters had similar discharge certificates i.e. They were also discharged from Army after summary trial and tortured in jail and it is mentioned in the Swantarta Sainik Samman Pension Scheme, 1980 that during freedom movement any person, who lost his livelihood he is eligible for pension and on this ground his case may be reconsidered. The matter was again sent to the Committee by the Government for re-consideration. The Committee office communicated to the applicant to submit the certificate showing that his dismissal from army/court martial/torture in the jail was related to freedom movement. The applicant appeared before the Committee and requested to keep pending his case till next meeting so that he may submit his complete documents and in that situation the members of the committee recommended to keep his case pending and the case is kept for reconsideration and the applicant is communication and the applicant is communicated in written to produce a certificate to the effect which approves that his court martial/dismissal from army/torture in jail were related to freedom movement. The applicant appeared before the Committee and could not produce that certificate and in that event the members of the committee had recommended rejecting Chhajju Ram's case”. [4]. Based upon the Samiti's decision, the State Government formally turned down the petitioner's request vide the impugned order dated 18.02.2009 [Annexure P-17]. [5]. Aggrieved, the petitioner has approached this Court. [6]. The respondents have filed their reply/affidavit broadly reiterating the version the Samiti's view point as mentioned in its impugned decision dated 29.01.2009. [7]. I have heard learned counsel for the parties at some CWP No. 12309 of 2009. ::-5-:: length and perused the record. [8]. There can indeed be no doubt that the freedom fighter's pension is more a matter of honour than of monetary benefit. Those who made sacrifices for the liberation of our nation and underwent unbearable torture and atrocities at the hands of the suppressors did not do so in expectation of any monetary gains. None of them went kneeling before the Central Government seeking pension or any other financial assistance. The 'pension scheme' is a very small attempt to honour and acknowledge the sacrifices made by the un- sung heroes of the freedom movement. The Scheme, therefore, puts the authorities under an onerous duty to find out that not even a single freedom fighter is deprived of this little honour, which, in this era of inflation is nothing more than a lip-service. [9]. Notwithstanding the avid object of the Scheme, it is unfortunate that Swantarta Sainik Samman Pension Samiti which proclaims itself to be a 'representative' of the freedom fighters has been found indulging in a typical colonial fashion and compelling the old and crippled claimants to appear before it, lead their evidence, prove the veracity of the affidavits/secondary evidence, produce their witnesses and run the risk of getting a verdict of masqueraders. The manner and method adopted by the Samiti to verify the claims is highly deplorable and is deprecated. The Samiti acts for and on behalf of the State Government and has State apparatus including the District Administration at its command for the verification of the scattered pieces of evidence which the old persons like the petitioner who at the fag end of their life are made to collect and produce to support their claim. Why a Deputy Commissioner or Sub Divisional CWP No. 12309 of 2009. ::-6-:: Officer [Civil] is not being asked to visit the permanent abode of the witnesses sought to be relied upon by a freedom fighter and verify the genuineness or veracity of the affidavits or other relevant documents? [10]. Adverting to the case in hand, the certificate [Annexure P- 1] unequivocally establishes that the petitioner was subjected to one year's detention on 27.3.1945 and he remained lodged in Mianwali and Karnal Jails before he was released on 26.01.1946. The certificate further shows that the petitioner was imprisoned as he 'disobeyed' the Commanding Officer his superior officer 'while posted at Command B-TRG Battalion – 14 Punjab Regiment Centre, Ferozepur'. [11]. Having proved his imprisonment during the British regime for disobeying the orders of superior authority, the only query to be responded by the petitioner is as to what was the cause of his disobedience. In order to complete the chain of events, the petitioner has brought on record the affidavits of his two co-prisoners who are admittedly recognized freedom fighters. Both of them have categorically deposed that the petitioner participated in the Indian Freedom Movement and revolted against the British regime. [12]. Though there is not even an iota of evidence to prove to the contrary, nevertheless the Samiti has rejected the petitioner's claim on hyper technicalities. If the affidavits of two proven freedom fighters are to be disbelieved or brushed aside with just the wave of a hand, does it not obligate the respondents to explain as to whether the pension scheme is meant to honour the freedom fighters or to insult them? CWP No. 12309 of 2009. ::-7-:: [13]. In order to make out a case of discrimination, the petitioner cited the instances of Sarv Shri Sarupla of District Rohtak and Tara Chand of District Patiala to whom identical jail certificates like the one relied upon by the petitioner were issued and they have been granted the freedom fighters' pension on the basis of affidavits of their co-prisoners. Having found no valid or rational basis to distinguish the petitioner's case, the Samiti has adopted a novice method to reject his claim on the plea that the 'freedom fighters' who deposed in favour of Sarv Shri Sarupla and Tara Chand were different than those who have deposed in favour of the petitioner. [14]. At this stage, a reference to the 'pension scheme' may also be made to highlight that it enables a freedom fighter to seek pension by producing 'primary' or 'secondary' evidence. Clause 2.2[b] of the 'Pension Scheme' reads as follows:- “In case records of the relevant period are not available, the secondary evidence in the form of 2 co-prisoner certificates [CPC] from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting or Ex.MP/MLA, only one certificate in place of the two is required”. [Emphasis applied]. [15]. It necessarily implies that even in the absence of the Jail Certificate, the petitioner would have been eligible to claim the pension by producing the affidavits of two freedom fighters in his CWP No. 12309 of 2009. ::-8-:: favour. The liberal and pragmatic approach contemplated by the Scheme too has been thrown to winds by the Samiti while rejecting the petitioner's claim. [16]. For the reasons afore-stated, the writ petition is allowed; the impugned proceedings dated 29.01.2009 [Annexure P-16] and the order dated 18.02.2009 [Annexure P-17] are hereby quashed and the State of Haryana is directed to grant the status of 'freedom fighter' to the petitioner and release the due pension to him besides recommending his case to the Union of India for the grant of freedom fighter's pension by the Central Government. This shall, however, be subject to the liberty to the State Authorities to verify the genuineness of the affidavits given by the co-prisoners of the petitioner, if so desired within a period of one month on receipt of a certified copy of this order. [17]. Disposed of. Dasti. September 16, 2010. ( SURYA KANT ) dinesh JUDGE