CIVIL WRIT PETITION NO.13076 OF 2002 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 11, 2008 Mukhtiar Singh .....Petitioner VERSUS Union of India and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rajnish K. Jindal, Advocate, for the petitioner. None for respondent No.1. Mr. G. S. Attariwala, Addl.A.G., Punjab, for respondent Nos.2 and 3. **** RANJIT SINGH, J. (ORAL) Mukhtiar Singh, another freedom fighter, standing in queue, asking for grant of freedom fighter pension, which is being denied to him with all the vehemence at its command by the State. The petitioner claims that he had participated in the Prajha Mandal Movement during the freedom struggle of the country and was arrested at Faridkot. The petitioner further claims that he was imprisoned for a period of three months during October 1942 in CIVIL WRIT PETITION NO.13076 OF 2002 :{ 2 }: Babster Jail, Faridkot. According to the petitioner, he was also imprisoned for nine months and kept in Ferozepur jail alongwith Kheira Singh of Village Mehna and Banta Singh of Village Kaliyan. The petitioner now is about 90 years old and is struggling to get his rights as a Freedom Fighter. This scheme, which was introduced on the occasion of 25th Anniversary of independence by the Government of India with effect from 15.8.1972. To remove ambiguities in the Scheme, Government brought out a note which was circulated to all State Government. Copy of this scheme/note is annexed as Annexure P-16. As can be noticed, the Scheme is meant for grant of pension to all deserving cases of freedom fighters. This pension was to commence with effect from 15.8.1972. IT was specifically provided that the families of martyrs or those freedom fighters, who are no longer alive, will also receive such pension. This pension was normally for the life time of the recipients and a meager sum of Rs.200/- was allowed as a pension. The family of the freedom fighter was also defined to include mother, father, widow, widower and unmarried daughters etc. Those, eligible for grant of such pension were also enumerated in the scheme itself. This scheme was renamed as `Swatantrata Sainik Samman Pension Scheme' in the year 1980. The quantum of pension was increased from Rs.200/- to Rs.300/-. The annual income ceiling of Rs.5,000/- per annum or less for being eligible for pension was removed and it was provided that there is no bar of income for freedom fighter to apply for pension if he otherwise fulfills the conditions of eligibility. It was specifically provided that in case of CIVIL WRIT PETITION NO.13076 OF 2002 :{ 3 }: claims of underground suffering/internment/ externment where it has not been possible for applicants to produce evidence from official records, certificate from prominent freedom fighters who had themselves undergone imprisonment for more than 5 years will be accepted as adequate evidence. The applications from the fresh applicants were also invited upto July 31, 1981. In the press note issued by the Government, wide publicity was given to the changed scheme introduced with effect from 1.8.1980. The petitioner, who had remained in jail during the freedom struggle, applied for grant of pension as per the scheme on 25.5.1985. The petitioner had supported his claim on the basis of two affidavits of his co-prisoners, namely, Rulia Singh and Arjun Singh. Thereafter, the petitioner gave number of representations from 1985 to 1992. He also sent various reminders for grant of this pension to him. On 24.10.1991, Deputy Commissioner, Bhatinda, had recommended the case of the petitioner for grant of pension as is claimed by him. When nothing happened, the petitioner filed a civil suit, seeking declaration to the effect that he is entitled to get this pension under the Scheme. This suit was filed on 22.12.1992, which was decreed on 29.3.1996, holding the petitioner entitled to the grant of freedom fighter/Swatantrata Sainik Samman Pension. Despite the order, pension was not released to the petitioner. In the year 2001, the petitioner filed an execution application. The same, however, was dismissed on the ground that the decree, as granted by the Civil Court, was to the effect that this pension was to be granted to the petitioner “if admissible”. The stand of the Union of India before the CIVIL WRIT PETITION NO.13076 OF 2002 :{ 4 }: executing Court was that this pension was not admissible to the petitioner. Undeterred, the petitioner appears to have insisted in pursuing his remedy and his right to earn the pension as per the scheme. He submitted a representation to the jail authorities for issuance of a certificate in regard to his incarceration which he had undergone in the year 1942-43. The petitioner had impugned the order passed by the Executing Court by filing a Civil Revision No.1384 of 2002. This revision, however, was dismissed but liberty was given to the petitioner to approach the jail authorities and to re- submit his claim to the Government of India. The petitioner then submitted representation to the jail authorities at Faridkot and Ferozepur and ultimately has approached this Court by way of present writ petition to claim that he is eligible for grant of this pension and it should be so granted to him. On notice having been issued, the respondent-Union of India and the State of Punjab both have filed separate replies. In the reply filed by Union of India, a preliminary objection is taken that the writ petition is liable to be dismissed as the petitioner had availed an alternative remedy by filing a civil suit. Strangely, it is also stated that the petitioner is not entitled to grant of pension under this scheme, while noticing that the petitioner was claiming underground suffering, internment or externment, for which he would be required to submit a corroborative documentary evidence in support of this assertion. It is otherwise conceded that if this certificate is not available, then he could submit certificate from the prominent freedom fighters who had CIVIL WRIT PETITION NO.13076 OF 2002 :{ 5 }: themselves undergone imprisonment for a period of two years or more. It is further stated that this pension under the Swatantrata Sainik Samman Pension Scheme can be sanctioned only after receipt of the State Government verification report and recommendation. While replying to the contents on merits, it is stated that the averments regarding imprisonment undergone by the petitioner are wrong and denied. It is further stated that the petitioner has given some contradictory period of his imprisonment and has not provided any primary evidence in support of his claim like jail certificate, court order, FIR etc. Some infirmities are also noticed in the certificate given by Rulia Ram and Arjun Singh to the effect that it does not contain any period for which the petitioner had remained in custody in jail and accordingly it is prayed that claim of the petitioner for grant of pension be rejected. Separate reply is filed on behalf of respondent Nos.2 and 3 by Deputy Commissioner, Mansa. It is stated that the petitioner has never submitted any proof to the Government that he had ever undergone imprisonment during 1942-43. It is further stated that the certificates submitted by the petitioner would not fulfill the requirement of law as the persons giving such affidavits have not made any mention to the period of imprisonment undergone by him. However, a fact of important significance submitted by the petitioner in his petition has been admitted in the reply filed by respondent Nos.2 and 3. In Para 4 of the petition, the petitioner has averred that his case was duly recommended by Deputy Commissioner, Bhatinda, CIVIL WRIT PETITION NO.13076 OF 2002 :{ 6 }: vide his letter/order dated 24.10.1991 but despite that no pension had been released to him. While replying to Para 4 of the writ petition, respondent Nos.2 and 3 have stated as under:- “That Para No.4 of the petition is correct and admitted to the extent that application for grant of pension as freedom fighter has been received by respondent No.3. The rest of the para is wrong, the competent authority in this regard is the Union of India.” Thus, there is no denial forth-coming to the plea that the case of the petitioner for grant of pension was recommended by the Deputy Commissioner, Mansa. Learned counsel appearing for the petitioner, by referring to the scheme, would urge that the case of the petitioner is covered for grant of pension under the scheme. The counsel would refer to Clause of the scheme, which regulates the persons entitled to the grant of pension vide which the claims of the persons who had undergone suffering/internment/externment could be considered if they are able to provide evidence in the form of certificates from the prominent freedom fighters who had themselves undergone imprisonment for specified period. This is to be considered as an adequate evidence in support of the claim of the petitioner. No one has come forward to represent Union of India. The stand taken by Union of India has been noticed above. The counsel representing State of Punjab, however, would say that there is no evidence indicating that the petitioner had remained imprisoned CIVIL WRIT PETITION NO.13076 OF 2002 :{ 7 }: for a period as prescribed under the Scheme, which would entitle him to grant of Swatantrata Sainik Samman Pension. The objection by the Union of India basically seems to be flowing on the ground that the case of the petitioner had not been recommended by the State of Punjab. In Para 4 of the petition, the petitioner had made a clear and categorical averment that after satisfying himself, the then Deputy Commissioner, Bhatinda, had recommended the case of the petitioner for grant of pension vide letter/order dated 24.10.1991. While replying to this para, the State has not denied the averments specifically. The exact reply filed by the State has already been re-produced above. Rather, the contents of this para have been admitted. It is, thus, not possible to say that the case of the petitioner was not recommended by the State Government. The Deputy Commissioner obviously would recommend the case of the petitioner after satisfying himself about the evidence of petitioner’s participation in the freedom struggle. The petitioner otherwise also, apart from his own assertion in the form of affidavit, has relied upon the affidavits of two co-prisoners. It is not the case of either Union of India or State of Punjab that the co-prisoners who have given certificates are not the one who had undergone imprisonment during freedom struggle. As per the scheme, one of the form of evidence that is admissible and permissible is certificate from the co-prisoners of the freedom fighters who had remained imprisoned alongwith the petitioner during the year 1942-43. The verification certificate issued by the jail authorities would also not advance the case of the respondents. A reading of CIVIL WRIT PETITION NO.13076 OF 2002 :{ 8 }: these certificates, which are on record as Annexures P-7 and P-10, would show that it has not been categorically stated that the petitioner had not remained imprisoned during this period. Certificate issued by the District Jail, Faridkot, Annexure P-7, would show that the record pertaining to the year 1942 is not available with the jail. Even the register containing record of Faridkot jail for this period is not available. On the other hand, the certificate issued by Ferozpur Jail is to the effect that record of the jail pertaining to January 1943 was checked and found that Mukhtiar Singh, petitioner, was not admitted in jail during 1942 as convict. It is otherwise categorically stated that the record regarding under-trial prisoners for the year 1943 is not available in the said office. This information would only pertain to the period of January 1943. The case set-up by the petitioner is not that he had remained in jail in January 1943. The petitioner had averred that he had remained imprisoned during the period 1942-43 for three months and nine months respectively at Faridkot and Ferozepur. The record of certificates issued by the jail authorities would not show if any efforts were made to look for the record pertaining to the other period of 1942-43. These certificates, as such, would not give any indication or be evidence of the fact that the petitioner had undergone any imprisonment at Ferozepur. It is to cater for such eventuality that the Scheme itself provided that alternative evidence can be furnished in the form of certificate from the co-prisoner. To my mind, the petitioner appears to have satisfied this requirement in the form of two affidavits of co-prisoners, Rulia Singh and Arjun Singh. The objection raised by the respondents in CIVIL WRIT PETITION NO.13076 OF 2002 :{ 9 }: regard to these certificates apparently is half-hearted. The purpose of this scheme and it being basically an honour and not a pension in real sense has well been recognized by the Supreme Court in various judgments. It has otherwise been noticed by this Court while deciding Civil Writ Petition No.10079 of 2001 (Harbans Kaur Vs. Union of India), on February 20, 2008 that this is a Sainik Samman Pension and the freedom fighter is not to be made to beg for it. It is an honour, which is to be bestowed on a freedom fighter and is not to reward or to compensate him. Reference in this regard can be made to the case of Mukund Lal bhandari & Ors. Vs. Union of India & Ors., JT 1993 (3) SC 342. It will be of a benefit to reproduce the observations of the Hon’ble Court, while explaining the Scheme:- “As has been pointed out above, the Scheme was introduced in 1972 on the occasion of the Silver Jubilee of our National Independence. It is not suggested that some of the freedom fighters were not in need of financial assistance prior to that date. When the Scheme came into force for the first time, it was also restricted to those who were in need of such assistance and hence only such freedom fighters were given its benefit, whose annual income did not exceed Rs.5,000/-. It is only later, i.e., from 1st August, 1980, that the benefit was extended to all irrespective of their income. The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was CIVIL WRIT PETITION NO.13076 OF 2002 :{ 10 }: 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.” The object of the Scheme was again explained by the Hon’ble Supreme Court in the case of Gurdial Singh Vs. Union of India & Ors., JT 2001 (8) SC 165, which is as under:- “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 CIVIL WRIT PETITION NO.13076 OF 2002 :{ 11 }: 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.” In Gurdial Singh’s case (supra), the Hon’ble Supreme court has also laid down a criteria regarding standard of proof needed for deciding such claims. The observations are as under:- “ 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 CIVIL WRIT PETITION NO.13076 OF 2002 :{ 12 }: 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.” Here again, it appears that bureaucratic approach seems to be fully at play. The respondents have relied upon hyper-technical grounds in rejecting the claim and have somehow tried to find reasons how the relief can be denied to the petitioner. The fate of the petitioner can well be imagined. He contested a full fledged civil suit where he succeeded. He remained still unsuccessful on account of addition of superfluous words in the order, full advantage of which was taken by Union of India to deny the decree, a fortune to the CIVIL WRIT PETITION NO.13076 OF 2002 :{ 13 }: petitioner-freedom fighter, which is nothing but a meager sum of Rs.200/- per month. It is unfortunate to notice this state of affair. The petitioner happens to be present in person before this Court. I have noticed his plight. He has rightly expressed his anguish on the delay in disposing his claim and about denial of this pension to him. He is justified in making a grievance that pension should not come to him when he is no more in this world. I have taken up his case for hearing, when he is seen pleading for decision. An old infirm man still has a spirit left in him. To see him beg for decision and not for pension was rather disgusting to notice. He certainly would deserve better treatment. The writ petition deserves to be allowed and it is so ordered. The petitioner would be entitled to grant of freedom fighter pension from the date he applied for it. Since the petitioner had made this application on 25.5.1985, he would be entitled to pension with effect from the said date. The arrears would carry interest @ 9% per annum from the date it is due to the date of its payment. Let the needful be done within a period of three months from the date of receipt of copy of this order so that the petitioner is able to enjoy the honour and the monetary consideration, which would follow with grant of this freedom fighter pension or shall we say a `Samman' an honour. April 11, 2008 ( RANJIT SINGH ) khurmi JUDGE