1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. CIVIL WRIT PETITION NO.1548/2002 Balwant Singh Versus Union of India and others DATE OF ORDER --- July 27,2009 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Anil Jain, for the petitioner None present for the respondents REPORTABLE BY THE COURT (1) In the aforesaid writ petition, on 9.7.2009, 14.7.2009 and 16.7.2009, the following orders were passed: Order dated 9.7.2009 “Mr.Anil Jain, for the petitioner None present for the respondents No one appears for the respondents. To be called out on 14.7.2009. In case on the next date also, no one appears for the respondents, then appropriate orders will be passed.” Order dated 14.7.2009 “Mr.Balwant Singh petitioner in person present. None present for the respondent. 2 None appears on behalf of respondents. Case be called out again on 16.7.2009.” Order dated 16.7.2009 “Mr.Anil Jain, for the petitioner None present for the respondents Arguments heard. Order is reserved.” (2) Since no one appeared on behalf of the respondents on the aforesaid dates, therefore, the submissions made in the reply to the writ petition will be considered at appropriate place. (3) By this writ petition, the petitioner has challenged orders dated 22.9.1998 (Anx.9) and 19.1.1999 (Anx.16) passed by the Central Government and the State Government respectively, whereby the respective orders dated 12.9.1991 (Anx.6) and 9.3.1998 (Anx.7) of grant of freedom fighter pension have been withdrawn, inter alia, on the ground that Balwant Singh and Prabhati Lal are one and the same person, therefore, he was rightly granted pension in the name of Balwant Singh. (4) Briefly stated, the relevant facts of the case are that on 21.7.1942, the 3 petitioner joined British Indian Army during the World War-II. Thereafter, the petitioner was kept in custody by British Indian Troops and kept in prison (Pow camps) on account of his intention to join the Indian National Army under the leadership of Netaji Subhash Chandra Bose, which the petitioner ultimately joined and was discharged from service on 10 th May, 1945. On 17.10.1947, the Officer-in-Charge Records, I.A.M.C. Central South Pune issued discharge certificate to the petitioner. On 23.5.1991, the petitioner was declared political sufferer by the Government of India regarding which the certificate was issued on 11.4.1990 and jail certificates were issued on 5.5.1990 and 8.11.1996. On 12.9.1991, the petitioner was granted `Samman Pension’ by the State of Rajasthan after verification of his particulars as well as identification marks from the original discharge certificate and was also extended other concessions/ facilities. In between 1991 and early 1996, the said discharge certificate was lost by the petitioner during travel and in respect 4 of which an FIR was also said to be lodged. Subsequently, on 28.3.1996, duplicate/ substitute certificate was issued in favour of the petitioner. On 9.3.1998, the Central Government granted `Samman Pension’ after due verification of the relevant record and the certificates. On 22.9.1998, the respondent No.1 Union of India, suspended the payment of `Samman Pension’ to the petitioner on the complaint of residents of the village of the petitioner that name of the petitioner in school was Prabhati Lal. On the same day, a show cause notice was issued and it was also conveyed to the petitioner that the duplicate certificate issued to him has been cancelled. The petitioner submitted reply to the show cause notice and appeared personally before the respondent No. 1. On 15.12.1998, the State Government also suspended the `Samman Pension’ and issued show cause notice to the petitioner. The petitioner submitted detailed reply mentioning therein that he entered in the Indian National Army as Balwant Singh Yadav son of Tota Ram and in 5 the school, his name was Prabhati Lal son of Tota Ram. There is no dispute that Balwant Singh son of Tota Ram, resident of Village Kanhawas, Tehsil Behror, Distt.Alwar served the army and the dispute is that the petitioner who is Prabhati Lal son of Tota Ram impersonated himself for the purpose of grant of pension. In the documents, the photograph of the petitioner is affixed and further, identification mark of `mole’ has been mentioned which have been verified before issuance of the original/duplicate certificates. (5) The respondent Union of India has stated in reply that the petitioner has submitted wrong particulars at the time of issuance of duplicate certificate. The respondent Union of India has sought to justify the cancellation of the discharge certificate on the ground that the particulars given by the petitioner did not tally with the particulars available in the roll maintained by the record office of A.M.C. 6 (6) The State of Rajasthan has stated in impugned order of withdrawal of pension dated 19.1.1999 (Anx.16) that on receipt of complaint that the petitioner is not Balwant Singh, they have enquired into the matter from the Sub Divisional Officer, Behror and then on receipt of report from the Collector, withdrew the order dated 12.9.1991 (Anx.6) on the ground that name of the petitioner was Prabhati Lal son of Tota Ram, therefore, he is not entitled to get pension and has wrongly been granted the same in the name of Balwant Singh son of Tota Ram. (7) In rejoinder, the petitioner has again laid stress upon the fact that the State of Rajasthan granted pension vide order dated 12.9.1991 (Anx.6) after verifying the original discharge certificate wherein the photograph of the petitioner is affixed and further, identification mark of `mole’ has been mentioned. It appears that the reference of the aforesaid original discharge certificate is of copy of the same retained by the All India INA Committee. The 7 same identification was made before issuance of the duplicate certificate. The petitioner has also placed strong reliance on the document dated 6.6.1997 (Anx.21) which was issued by Mr.S.S.Yadav,Capt. I.N.A. General Secretary, All India I.N.A. Committee wherein it has been categorically mentioned that the duplicate copy of Military Discharge Certificate in respect of Shri Balwant Singh s/o Tota Ram resident of Vill. & P.O. Kanhawas, Teh. Behror, Distt.Alwar (Raj.) duly attested by the Deputy Secretary (FF) MHA is enclosed for favour of necessary action, and that the original military discharge certificate was shown to the Members of Special Audit Team (Ch: Ranbir Singh–Capt.S.S.Yadava) and Deputy Secretary (FF) Shri Jha and were attested by them on 5.6.1997. (8) Counsel for the petitioner submits that in all the societies, the settled practice is that one person is known by two names but the parentage of such person always remains the same and further, sometime persons are got admitted in school by their relatives 8 and not by their parents and the relatives/parents were/are not so serious to get the correct name entered in the school which is to be used throughout his entire career. It might be possible that in the school/home, the petitioner was called Prabhati Lal son of Tota Ram but at the time of entry in Army, his name was entered as Balwant Singh son of Tota Ram, which is further substantiated by tallying the identification marks as well as the photograph, hence the complaint was totally false and frivolous. The respondents ought not to have given the same so much weightage in ignorance of the aforesaid practice and more particularly, when the respondents have not been able to prove that Tota Ram was having any other son in the name of Balwant Singh and further, the letter dated 6.6.1997 (Anx.21) which is conclusive proof so far as services of the petitioner in Indian National Army headed by Netaji Subhash Chandra Bose is concerned. The petitioner has also placed reliance on the document dated 5.5.1990 (Anx.5) issued by the Dy. 9 Secretary, Government of India, Ministry of Home Affairs, New Delhi wherein there is categorical mention that Balwant Singh son of Tota Ram, Resident of Village Kanhawas, Tehsil Behror, Distt. Alwar served in the Indian National Army from August, 1943 to May, 1945. It was also mentioned in the said certificate that Balwant Singh took part in the operation of `Kaladan Velley’ as a Company Commander of Suicide Squad of Subhash Brigade (No,.I Guerilla Regiment) in 1944 and captured British Army Post at `Modak’ (now in Bangladesh) and hoisted the Tri-colour Flag on the liberated soil of Mother India. It was further mentioned that Lt. Balwant Singh was awarded Gallantry Medal of SARDA-RE JUNG for his outstanding performance of bravery. It was lastly mentioned that the petitioner was the first foreigner who commanded over Japanese Imperial Forces at Modak in 1944. (9) Submission of the respondent Union of India in its reply which can be made out from the impugned order dated 22.9.1998 (Anx.9) is that the particulars of the 10 petitioner do not tally with the record available with them and further, the submission of the State of Rajasthan, which can be made out from the impugned order dated 19.1.1999 (Anx.16) is that the petitioner is Prabhati Lal and not Balwant Singh. (10) I have gone through record of the writ petition and further considered the submission of counsel for the petitioner and averments made by the respondents in their reply to the writ petition. (11) Before proceeding further, it is relevant to reproduce the two letters dated 5.5.1990 (Anx.5) and 6.6.1997 (Anx.21). The same are as under: Letter dated 5.5.1990 “GOVERNMENT OF INDIA 5 May '90 MINISTRY OF HOME AFFAIRS NEW DELHI This is to certify from his Military Records that Lieutenant Kunwar Balwant Singh s/o late Shri Tota Ramji of Village and Post Office Kanhawas, Tehsil Behror, District Alwar (Rajasthan) served in the Indian National Army (INA) from August 1943 to May 1945. Lieutenant Kunwar Balwant Singh took part in the operation of 'Kaladan velley' as a Company Commander of Suicide Squad of Subhas Brigade (No.I Guerilla Regiment) in 1944 and captured British Army Post at `Modak' (Now in Bangala Desh) and Hoisted the TRI Colour Flag on the Liberated Soil of Mother India. Lieutenant Kunwar Balwant Singh was awarded Gallantry Medal of SARDA RE, JUNG for his outstanding performance of Bravery. 11 Besides he is the 1st Foreigner who commanded over Japanese Imperial Forces at MODAK in 1944. Sd/- Dy. Secretary, Government of India, Ministry of Home Affairs, NEW DELHI.” (emphasis supplied) Letter dated 6 th June, 1997 “ALL INDIA INA COMMITTEE No.286 INDIAN NATIONAL ARMY Dated 6th June, 1997 (ESTD-1945) 82,DARYA GANJ,DAYANAND MARG, NEW DELHI 110 002 PHONE 3273532 To The Deputy Secretary, to the Government of India, Ministry of Home Affairs, FF Dvn., Lok Naik Bhawan, New Delhi-3. Subject: Grant of SSS Pension to Freedom fighters. Sir, With reference to your letter No.28/Alwar/304/93/FF- INA dated 20th May, 1997, I am to say that the Duplicate Copy of Military Discharge Certificate in respect of Shri Balwant Singh s/o Tota Ram resident of Vill: & P.O. - Kanhawas, Teh:- Behror, Distt.Alwar (Raj.), duly attested by the Deputy Secretary (FF) MHA is enclosed herewith for favour necessary action. The Original Military Discharge Certificate was shown to the Members of Special Audit Team (Ch: Ranbir Singh – Capt: S.S.Yadava) and Deputy Secretary (FF) Shri Jha and were attested by them on 5.6.97. Yours faithfully, Encl.5. Sd/- S.S.Yadava Capt.INA Gen.Secy. Copy to: 292 Dated 10.6.97 Shri Bulwant Singh s/o late Shri Tota Ram, r/o Vill: & P.O.- Kanhawas, Teh: Behror,Distt.Alwar (Raj.) for information.” (emphasis supplied) (12)Since there is no dispute that Balwant Singh son of Tota Ram was the person who was rightly entitled to pension, therefore, in 12 my view, once the pension was granted by the Union of India as well as the State Government, then before suspending the `Samman Pension’, the respondents were duty bound to arrive at a finding whether there is any other son of late Tota Ram named as Balwant Singh, resident of the same village who had participated in the army force operations of Netaji Subhash Chandra Bose. Unless such a finding is recorded, it cannot be conclusively said that the petitioner is not Balwant Singh son of Tota Ram because he might have been known as Prabhati in the school and entered in the army as Balwant Singh. (13) Further, the State Government has granted pension vide order dated 12.9.1991 after verifying the particulars from the original discharge certificate and there is also no finding on the issue whether Tota Ram is having any other son in the name of Balwant Singh and the identification marks of Balwant Singh and the so called Prabhati are the same or not. 13 (14)There is no dispute that Balwant Singh son of Tota Ram, Resident of Village & Post Kanhawas, Tehsil Behror, Distt. Alwar served in the Indian National Army from August, 1943 to May, 1945 and took part in the operation of `Kaladan Valley' as a Company Commander of Suicide Squad of Subhash Brigade (No.1 Guerilla Regiment) in 1944 and while commanding over Japanese Imperial Forces, captured British Army Post at `Modak' (now in Bangaladesh) and hoisted the Tri-colour Flag on the liberated soil of Mother India and was awarded gallantry medal. The respondents have not been able to establish the fact that there is some other son of Tota Ram named Balwant Singh. Therefore,it appears from the record that the petitioner is the same person known as Balwant Singh @ Prabhati Lal son of Tota Ram. Thus, the findings of the Union of India and the State Government are perverse being contrary to their own documents, therefore, the impugned orders dated 22.9.1998 and 19.1.1999 deserve to be quashed. 14 (15)Since the impugned orders dated 22.9.1998 (Anx.9) and 19.1.1999 (Anx.16)have been quashed on the ground of perverse finding and the matter relates to the year 1998 and the petitioner is more than 80 years of age, therefore, in such circumstances, further enquiry will not serve any interest of justice. Otherwise also, in a case of present nature, such type of enquiry on flimsy grounds without taking into consideration the relevant facts of identification marks, photographs, certificates issued by the Captain of INA, Dy. Secretary, Govt. of India wherein name and parentage is the same, amounts to showing total disregard to the gallantry services rendered by the freedom fighter in the freedom struggle. Therefore, the present case is not fit for remand. (16) In the result, the writ petition is allowed, the impugned orders dated 22.9.1998 (Anx.9) and 19.1.1999 (Anx.16) are quashed and set aside and orders dated 12.9.1991 (Anx.6) and 9.3.1998 (Anx.7) are restored. The respondents are directed to make payment 15 of the arrears of `Samman Pension' to the petitioner within a period of three months from today and further continue to make payment of Samman Pension each month. (Prem Shanker Asopa) J. Gopal