CWP No.7622 of 2008 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7622 of 2008 Date of decision: January 08, 2009. Shri Sewa Singh Undi ...Petitioner(s) v. Union of India & Anr. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri R.A. Sheoran, Advocate for the petitioner. Mrs. Sangeeta Dubey, Advocate, Standing Counsel for the UOI, for the respondents. ORDER Surya Kant, J. - (Oral): The petitioner seeks quashing of the orders dated 13.10.1998 and 2.8.2000 (Annexures P-1 & P-3) whereby his claim for the Swatantarta Sainik Samman pension has been turned down by the Union of India. During the course of hearing, the petitioner has also assailed the order dated 12.12.2008 whereby his claim has again been turned down after reconsideration. The facts may be briefly re-capitulated. The petitioner was statedly working as a Sub-Accountant in the CWP No.7622 of 2008 -: 2 :- Trreasury Office at Taunggyi, Burma under the British rule. On the call given by Netaji Subhash Chander Bose, the petitioner reportedly volunteered his services and joined the Indian Independence League (INA) and continued to work in the INA till January, 1943. The petitioner was thereafter transferred by INA to the Japanese Army where he attended the Japanese Army Interpreters Training School at Myanmar (Burma) from October to December, 1943. The petitioner was released in the year 1945 after the INA was disbanded. The British Govt. thereafter refused to re- employ the petitioner, rather arrested and imprisoned him in August, 1945 in Pegu Jail in Burma from where he was released in 1946 along with other political prisoners. The petitioner, thus, is stated to have spent nine months in the jail as a political prisoner. The petitioner staked his claim for the grant of Swatantarta Sainik Samman pension under the Swatantarta Sainik Samman Pension Scheme 1980 which has laid down the following eligibility conditions for the grant of such pension:- “(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. (b) The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1.8.1990.” The petitioner applied to the competent authority along with all CWP No.7622 of 2008 -: 3 :- the relevant documents by registered post. On receipt of the said application, the Union of India vide its memo dated 13.10.1998 asked the petitioner to furnish “authentic documentary proof” of his dismissal from govt. service as Sub Accountant. In response thereto, the petitioner produced a certificate dated 13.6.2000 from Dr. Laxmi Sehgal as well as an affidavit of Dr. Gian Puri in support of his claim. Thereafter, the petitioner furnished an affidavit dated 22.2.2005 of Darbara Singh who himself is a freedom fighter and recipient of Swatantarta Sainik Samman pension from the Govt. of India vide Pension Payment Order No.1654. The respondents turned down the petitioner's claim vide order dated 2.8.2000 (Annexure P-3) on the ground that the certificates produced by the petitioner from Dr. Laxmi Sehgal and Dr. Gian Puri are not acceptable as “they cannot be treated as an authentic document” in support of his claim of loss of job which was not in INA whereas the certifiers were INA personnel only. Aggrieved, the petitioner has approached this Court. Counter affidavit has been filed by the respondents, inter-alia, responding that under the Swatantarta Sainik Samman Pension Scheme, 1980, a person claiming pension on the ground of jail suffering can be considered for the grant of pension on production of the following evidence:- “(a) Primary evidence:- Imprisonment/detention certificate from the concerned jail authority, District Magistrate or the State Government indicating the period of sentence awarded, date of admission, date of release, facts of the CWP No.7622 of 2008 -: 4 :- case and reasons for release. (b) Secondary evidence:- In case official records of the relevant period are not available, secondary evidence in the form of 2 co-prisoner certificate (CPC) from central freedom fighter pensioners who have proven jail suffering of minimum 1 year and who were with the applicant in the same jail could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidence from the official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting on Ex-MP/MLA, only one certificate in place of the two is required. In the case of persons belonging to INA category, only one CPC is required. In case of non-availability of official records for the relevant period, case can be considered on production of a Non-availability of Records Certificate (NARC) from the State Government and co-prisoner certificate from another Central freedom fighter pensioner, who himself has a proven sufferings of imprisonment/detention for not less than one year. (iii) Loss of job:- A person who lost his Govt. job for participation in freedom struggle is eligible for pension under the scheme subject to furnishing of orders of dismissal or removal from service.” CWP No.7622 of 2008 -: 5 :- The respondents have taken the plea that since no documentary proof of dismissal from service, namely, loss of job has been produced by the petitioner, his pension claim cannot be accepted. When the matter came up for hearing before a Division Bench of this Court on 22.10.2008, the following order came to be passed:- “The petitioner claims Swatantarta Sainik Samman Pension on account of loss of his job having participated in freedom struggle. The petitioner states that apart from the certificate produced by Dr. Lakshmi Sehgal and Dr. Gayan Puri, petitioner has been furnished an affidavit of Darbara Singh, who has been given Swatantarta Sainik Samman Pension, who was with the petitioner in Indian National Army. However, there is the averment in the writ petition that such affidavit was given to the respondents. But a copy of the said affidavit has been given to learned Counsel for the respondents to enable the respondents to take a decision on the request of the petitioner for the grant of pension.” On November 19, 2008, the Division Bench passed yet another order, which reads as follows:- “Learned Counsel for the Petitioner contends that the petitioner claims pension on two grounds, firstly, having loss his job on account of participation in Indian Freedom Struggle being member of Indian National Army and also for the reason that he suffered imprisonment for a period CWP No.7622 of 2008 -: 6 :- exceeding six months. Apart from the documents which are mentioned in the writ petition, the petitioner claims that he has filed certificate from one Feroz Khan, resident of No.195, Wungyi Road, Yei Aye Kwin Quarter, Taunggyi, Myanmar in respect of involvement of the petitioner in the Indian Freedom Struggle and has imprisonment and also a writing by Ms. Bhagwan Kaur, Patron, Sabai Eichaan Puriyan Sikh Temple Taunggyi, Myanmar. Prima-facie, we are of the opinion that such documents are sufficient to show the involvement of the petitioner in Indian Freedom Struggle as member of Indian Natioal Army and his imprisonment in jail from August 1945 to April 1946. However, before we pass any final order, we like to examine the decision making process of the Central Government declining the pension to the petitioner.” Mrs. Sangeeta Dubey, learned Standing Counsel for the Union of India, has handed over a copy of the forwarding letter dated 15/16 December, 2008 along with an order dated 12.12.2008 whereby the petitioner's case has again been considered and rejected, inter-alia, on the following grounds:- “(a) You have not produced any copy of the order of dismissal or removal from Govt. service from the concerned employer as required under the pension scheme to prove that you were dismissed/removed from service for your participation in the INA movement. Certificates CWP No.7622 of 2008 -: 7 :- from third parties cannot be relied for grant of Samman pension under the scheme. (b) No primary evidence has been furnished by you to prove that you had participated in the INA movement and undergone minimum six months imprisonment/detention therefor. (c ) You have not produced any secondary evidence i.e. Co-prisoner certificate (CPC) from a central freedom fighter pensioner having proven jail suffering of minimum 1 year and who were with you in the same jail. The affidavit of Shri Darbara Singh is not acceptable as a CPC because he has neither given any details about his own imprisonment suffering nor indicated that he was a co- prisoner with you in the jail. Certificates from non-co- prisoners cannot be relied for grant of Saman pension under the scheme. (d) Grant of Tamra Patra by any State Govt. does not entitle a person for Samman pension as the Tamra Patra is not any evidence of imprisonment/detention suffering of minimum six months.” I have heard Learned Counsel for the parties at some length and perused the record, including the additional documents referred to by them during the course of hearing. It needs to be kept in view by the respondents that the petitioner's claim for the grant of subject pension is two-fold, namely, (i) loss of job due to dismissal of his service; and (ii) on account of CWP No.7622 of 2008 -: 8 :- imprisonment for a period of nine months for joining and participating in the national freedom movement. It may be true that the petitioner has not been able to produce the documents pertaining to his appointment or dismissal from the service of the Burma Govt., however, the fact remains that the petitioner has produced some material in the nature of secondary evidence so as to establish that he was imprisoned on account of joining and participating in the activities of the INA and spent over nine months in jail. It is well known that no direct evidence of undergoing jail imprisonment for participation in the freedom movement may be readily available, however, if the petitioner has been able to produce circumstantial evidence, coupled with the certificates by those who hold responsible position and/or enjoy impeccable integrity and social status and have no reason to favour the petitioner for his undue enrichment, there appears to be no justification for the respondents, either in law or in equity, to insist upon the production of any direct evidence by the petitioner. At this stage, it would be relevant to extract the contents of the affidavit dated 22.2.2005 of Darbara Singh, which reads as follows:- “1. That I am a freedom fighter receiving Swatantrata Sainik Samaan Pension from the Govt. of India. My pension Payment Order No. is 1654. 2. That I know Seva Singh Undi, R/o C-53, First Floor, Fateh Nagar, New Delhi-110018 since the year 1935 when we were together in Taunggyi,Myanmar. 3. That Seva Singh Undi and myself were recruited in the Indian National Army at Taunggyi, Myanmar, in September 1943. CWP No.7622 of 2008 -: 9 :- 4. That Seva Singh Undi and myself attended Military and Interpreters training at Maymyo, Myanmar from 1st Oct. 1943 to Dec. 1943. 5. That Seva Singh Undi and myself were transferred tot heJapanese Army to serve as Interpreters between the Japanese Army and the Indian National Army and were sent to the Manipur Battle Front, on 1st Jan. 1944. 6. That Seva Singh Undi who was working as Sub- Accountant in the Treasury Office, Taunggyi, Myanmar, before World War II was arrested in July 1945 by the British Govt. for his involvement in the Indian National Army and was sent to Pegu Jail, Myanmar and was released in April 1946. He was in detention in Pegu Jail for a period of 9 months. 7. On release from Pegu Jail Seva Singh Undi was dismissed from his service as Sub-Accountant in the Treasury Office, Taunggyi, Myanmar and was not re- employed in his job.” In addition, the petitioner has also produced a certificate dated 7.10.1989 issued by Shri S.S. Yadav, Captain, INA, Joint Secretary of All India INA Committee and the said certificate reads as follows:- “This is to certify that Shri Seva Singh Undi was a member of the Indian National Army. He is a political sufferer and as such is entitled to all the concessions allowed to other political sufferers vide Govt. of India, Ministry of Home Affairs letter No.4/6/61-Ests.(C), dated CWP No.7622 of 2008 -: 10 :- 23rd May, 1961. His particulars are as under:- Father's Name Shri Jai Singh Indian Army Indian National Army Regtl. No. Not known Rank Civilian Interpreter Unit S.S. Group (attached with Hikari Kikan) Home Address Village & Post Office Morch Taluka/Tehsil Tengnoupal District Chandel (Manipur) Character while in the INA ... Very Good “ The petitioner has also produced a certificate from one Feroz Khan, resident of Myanmar to the following effect:- “I, Feroz Khan, age 86 years, resident of No:195, Wungyi Road, Yei Aye Kwin Quarter, Taunggyi, was born and brought up in Taunggyi. I have known Mr. Seva Singh Undi and his elder brother Mr. Atma Singh Undi (now retired Circle Accountant, Forest Department, Shan & Kayah State, Taunggyi) since our school days. Mr. Atma Singh was, in fact, my classmate up till the High School. We stilllive in Taunggyi. Before Burma Independence, I was a member of the Town Administration Committee, Taunggyi. After Independence, I served as the First President of the Taunggyi Administration Committee. I have known Seva Singh very well since our young days. Prior to the Second World War, Seva Singh was in CWP No.7622 of 2008 -: 11 :- service as Sub Accountant in the Treasury Office, Taunggyi. In July 1945, at the time of the Brith reoccupation of Myanmar, Seva Singh was dismissed from government service in the Treasury Department, Taunggyi, by the British Government for his involvement in the Indian Freedom Struggle along with Subash Chandra Bose against the British Government.” In my considered view, the contents of the affidavit of Darbara Singh, coupled with the certificate issued by Dr. Laxmi Sehgal, Dr. Gian Puri, S.S. Yadav and Feroz Khan, would constitute sufficient material within the parameters laid down by the Hon'ble Supreme Court in the case of Gurdial Singh v. Union of India and others, AIR 2001 SC 3883 to hold that the petitioner participated in the INA movement and was imprisoned for nine months on that count. It is quite unfortunate that the respondents are insisting upon the petitioner to furnish better particulars of Darbara Singh when such particulars are readily available with them in the later's Pension record of Swatantarta Sainik Samman Pension sanctioned vide PPO No.1654. Had the respondents implemented the 1980 Scheme in its true spirit with an intent to honour the unsung heroes of freedom movement, nothing prevented them to resort to their diplomatic channels and to get the facts mentioned in the affidavit of Darbara Singh verified from Myanmar Govt. Instead, the entire burden has been shifted upon the petitioner, who by virtue of several factors, including his old age of 87 years and lack of means to travel and find out the records, would not be in a position to respond to all the queries. CWP No.7622 of 2008 -: 12 :- For the reasons afore-stated, I am satisfied that the respondents have not acted in a fair and responsible manner and have rather adopted a casual approach while considering the petitioner's claim. The impugned orders passed by them, including the one dated 12.12.2008, therefore, cannot sustain and the same are accordingly set aside. The respondents are directed to re-consider the petitioner's claim in accordance with law after getting verified the contents of the affidavit of Darbara Singh dated 22.2.2005 and/or other certificates relied upon by him and referred to in this order. The obligation shall be upon the respondents (and not the petitioner) to verify the specific factual events incorporated in those certificates/affidavits and thereafter to determine as to whether or not the petitioner had actually participated in the INA movement and remained incarcerated for a period of nine months. The needful shall be done within a period of four months from the date of receipt of a certified copy of this order. Needless to say that in case it is found that the petitioner had actually spent nine months period in jail on account of his participation in the INA movement, the Swatantarta Sainik Samman Pension shall be released to him forthwith along with arrears and interest @ 9% per annum from the date of application. No costs. January 08, 2009. [ Surya Kant ] kadyan Judge