CIVIL WRIT PETITION NO.3668 OF 1997 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 13, 2008 Smt.Balbir Kaur Malhi .....Petitioner VERSUS The Secretary to Govt. of India, New Delhi ....Respondent 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. Sunil Chadha, Advocate, for the petitioner. ( In C.W.P. No.3668 of 1997) Mr. R. K. Gupta, Advocate, for the petitioner. (In C.W.P. No.16570 of 2001). Ms. Alka Chatrath, Advocate, for the petitioner. (In C.W.P. No.2766 of 2004). Mr. Gurpreet Singh, Standing counsel for Union of India. **** RANJIT SINGH, J. Freedom fighters seem to be standing in a queue, waiting for their turn to await decision regarding their pensionary rights. Very recently, this Court had decided two of the writ petitions, directing grant of freedom fighter pension either to the freedom fighter himself or to his family. While disposing of the said writ petition, this Court CIVIL WRIT PETITION NO.3668 OF 1997 :{ 2 }: had expressed, its concern in the careless attitude and bureaucratic approach adopted by the persons dealing with such cases. That approach is clearly noticed in the present three cases where the claim for grant of freedom fighter pension to the freedom fighters or to their families has been denied with reasons which are not found justifiable, fair or reasonable. Through this order, three writ petitions Nos.3668 of 1997 (Balbir Kaur Malhi Vs. The Secretary to Govt. of India, New Delhi), 16570 of 2001 (Des Raj Vs. Union of India and others) and 2766 of 2004 (Sawaran Singh Vs. Union of India and another) are being disposed of together as the common question of law arise for determination in these three writ petitions. Let us proceed to notice the facts in these three respective writ petitions, which would show that the authorities have not been considerate and kind enough to consider the claim of the respective petitioners in the spirit of the scheme that has been formulated by the Government to grant freedom fighter/Sainik Samman Pension, which is termed more as an honour rather than any pension as understood in the normal parlance. Smt.Balbir Kaur Malhi is a wife of Late L/Hawaldar Kuldip Singh, who served as a Clerk in the Sikh Regiment of the Indian Army. Nationalism in him had made him to join Indian National Army (INA) raised by General Mohan Singh with the aim of fight for freedom of this country. Having been enrolled as a Sepoy on 29.7.1940, he had opted for being part of INA in the year 1942 and was sent to New Britain and New Guinea by Japanees. He embarked at the Indian port on 20.10.1944. On 18.11.1955, the husband of the CIVIL WRIT PETITION NO.3668 OF 1997 :{ 3 }: petitioner was discharged from the Indian Army on his request and breathed his last on 6.4.1967. Having learnt about the Scheme of freedom fighters pension, the petitioner applied for the same on 30.6.1978. Her prayer, however, was rejected on 9.9.1981 on the ground that her husband was discharged at his own request and not due to his association with INA. The Scheme having been renamed as Swatantra Sainik Samman Pension Scheme vide Annexure P-1 dated 31.1.1983, with effect from the year 1980 entitling those persons for grant of pension who had been sent to New Guinea and had faced hardship, the petitioner renewed her request on 11.9.1995 for grant of pension under the said changed scheme. The generation that has to deal now with the grant of such like pensions apparently is totally oblivious of the sacrifices and the hardships that persons had to undergo while fighting for freedom of this country. Their attitude is such that such requests keep on lying for years without consideration and acknowledgment. No different was the fate of the present petitioner. Having not heard anything, the petitioner seems to have taken courage to make a representation on 11.9.1995. What gave her a cause to do so, was the information that many of the fellow colleagues of her late husband had been granted pension under the Sainik Samman Scheme. Still, she did not receive any response. The petitioner raised the level of demand by serving a legal notice on 27.10.1995. This time, she was fortunate enough to receive a response, asking her to furnish discharge certificate of her late husband. On 29.1.1996, the petitioner sent the copy of discharge certificate. Thereafter, again their was a total silence from the side of CIVIL WRIT PETITION NO.3668 OF 1997 :{ 4 }: the respondents. On 2.5.1996, the petitioner filed a Civil Writ Petition No.6473 of 1996, which was disposed of on the very next day with a direction to the respondents to decide the pending representation filed by the petitioner. On 16.10.1996, the respondents rejected the prayer of the petitioner on totally whimsical and farcical grounds, which the petitioner countered with a notice, containing detailed reasoning to contest the rejected claim with a prayer to review the said order. The respondents have chosen to remain silent and, thus, the petitioner once again came before this Court through the present writ petition. After few preliminary hearings, the writ was ordered to be admitted on April 22, 1998. It has now come up for hearing. Des Raj Pardesi, petitioner in Civil Writ Petition No.16570 of 2001, is a bit fortunate that his writ petition has come up for hearing within 7 years of its filing/admission. He has also remained unsuccessful in convincing the respondents in regard to his entitlement for grant of freedom fighter/Sainik Samman Pension. The petitioner had participated in Quit India Movement and had vigorously associated himself in Praja Mandal Movement in Faridkot State, leading to his arrest on 10.2.1946. He claims to have remained at Faridkot Jail from this date to 16.5.1946 alongwith one Rasal Singh, his co-prisoner. The petitioner is also a founder member of Shishu Sewak Dal and subsequently remained underground from June 1946 to February 1947, participating in the propaganda activities of Praja Mandal Movement. The petitioner was again arrested in April 1947 and lodged in Nabha Jail till July 1947. On learning about, the Pension Scheme, he applied for freedom fighter pension on 8.8.1993 through an application dated 15.4.1993, which was duly attested by CIVIL WRIT PETITION NO.3668 OF 1997 :{ 5 }: Magistrate and verified by Ex.M.L.A. Chaudhary Fateh Singh. On 19.10.1993, the petitioner applied to the Central Government for grant of pension. This application was recommended by Giani Zail Singh, former President of India. Thereafter, followed trails of representations and waits but despite several requests from the year 1993 to 2000, the petitioner received only the intimation that his case was under consideration. On 3.3.2000, the Central Government asked the State Government to forward its recommendations in terms of the Swatantra Sainik Samman Pension Scheme. The State also took time at its leisure. State had constituted Haryana Swatantra Sainani Samman Samiti to consider the case of freedom fighters for grant of pension. The case of the petitioner was considered on 25.8.2000. The Samiti also interviewed the petitioner, leading to unanimous recommendation dated 19.12.2000 for grant of pension to him. The Haryana Government, however, still rejected the claim of the petitioner on 31.1.2001, whereupon the petitioner made a detailed representation on 3.2.2001. The Central Government, on the other hand, was asking and waiting for recommendation from the State Government. Ultimately, on 9.5.2001, the State Government sent the case of the petitioner informing the Central Government that Samiti had recommended the grant of freedom fighter pension to the petitioner. Central Government, however, rejected the claim of the petitioner mainly on the ground that State has not recommended the same. What weighed with the Central Government to reject the claim of the petitioner is that he had undergone imprisonment from 10.2.1946 to 16.5.1946 for a period of three months and six days. The grievance of the petitioner is that his imprisonment at Nabha Jail CIVIL WRIT PETITION NO.3668 OF 1997 :{ 6 }: from April 1947 to July 1947 has been wrongly ignored and so also the fact that the petitioner had remained underground for nine months, which was not verified on account of non-availability of the record. The petitioner, thus, is before this Court. The case of Sawaran Singh, petitioner in Civil Writ Petition No.2766 of 2004, is slightly different. His grievance is that he is entitled to Army special pension in terms of the scheme formulated in this regard, which is denied to him without justification. His claim is based upon the fact that while serving the Indian Army, he had revolted against the British Authorities and, thus, was made to face a Court Martial and sentenced to undergo transportation of life on 28.7.1940. The petitioner had undergone the sentence of nearly 7 years from 1940 to 4.1.1947, when he was released. Then came the scheme for grant of Freedom Fighters Pension, which was subsequently named as Swantarta Sainik Samman Pension in the year 1980. To show his credential, the petitioner refers to a fact that on 25th anniversary of independence he was awarded Tamra Patra by the Government of India. He is also recipient of commendation certificate from the State of Punjab issued to him on 26.1.1997 for his remarkable contribution in the freedom struggle. It is in this background that the petitioner seeks grant of special pension under the Scheme formulated by the government of India for those Ex.Army personnel who revolted against the British Authorities and had to suffer for atleast six months or more on account of participation in mutiny. This scheme is stated to have been formulated on 22.7.1996. The petitioner says that he is suffering the effect of an inadvertent typing mistake in the documents, whereby name of the Regiment CIVIL WRIT PETITION NO.3668 OF 1997 :{ 7 }: while listing those who had participated in the mutinies is wrongly mentioned as 3/12 Punjab Regiment whereas it was earlier known as 12th Frontier Force Regiment. The petitioner complains that the respondents have failed to consider the correction carried out in a meeting of the joint committee of freedom fighters and officials held on 13.11.1997, where it was resolved that name of 3/12 Punjab Regiment be changed as Royal Frontier Force and 16-20 persons whose details could not be verified by the Ministry of Defence, be granted pension on the basis of certificates given by them. The petitioner had submitted his application with all necessary documents to the Department for consideration for grant of said pension. He is still without pension. He was apprised on 8.8.2000 that his case is under consideration and for verification for grant of Army Special Pension. While verifying, it is stated that ex-Sepoy Sawaran Singh son of Sher Singh belonged to Kumaon Regiment whereas the petitioner was from 12th Frontier Force. The petitioner pointed out to the correction, which had earlier been noted in a meeting held on 13.11.1997. The petitioner sent various reminders, which only received response that verification report was awaited. The petitioner rightly points out that he is in receipt of freedom fighter pension from the Punjab Government. He has also submitted an affidavit, certifying that he had served in the 12th Frontier Force and took part in mutiny in Central India Force, leading to his incarceration from 28.7.1940 to 4.1.1947. In support of his claim, the petitioner has submitted an affidavit of another freedom fighter, Bhagwant Singh son of Bhakhtawar Singh to show that the petitioner was his co-prisoners for more than six years. The bureaucratic approach, however, would CIVIL WRIT PETITION NO.3668 OF 1997 :{ 8 }: sleep over the matter and has not taken any action to respond to the requests of the petitioner, which should follow more as a honour to him rather than any pecuniary consideration. Left with no alternative, the petitioner filed Civil Writ Petition No.12527 of 2003. This Court disposed of the said writ petition with a direction to decide the representation filed by the petitioner by passing a speaking order within three months. Then followed, the order dated 5.1.2004, rejecting the claim of the petitioner for grant of Army Special Freedom Fighter Pension. The ground on which the claim is rejected is the same i.e. the absence of particulars of the petitioner in the notification issued by the Ministry of Defence. The petitioner rightly complains that no one is looking into the correction carried out in a joint meeting of authorities and the freedom fighters Committee on 13.11.1997, where it was decided to change the name of 3/12 Punjab Regiment to that of Royal Frontier Force. Grievance even further is that the affidavits dated 17.11.2000 has not been taken into consideration. The petitioner, as such, is again before this Court through the present writ petition. There is nothing common in facts in all the three cases except that these reflect the common least bothered attitude of bureaucrats going to the extent of being careless on the part of the authorities who are dealing with the cases of freedom fighters. They need to realise that these persons did so much for us all to enjoy the fruits of freedom as we have today. As already noticed, this certainly is not a way to express our gratitude towards those who did not care for their comforts and did something extra ordinary, so that we are able to enjoy the flow of freedom. The purpose of the scheme and CIVIL WRIT PETITION NO.3668 OF 1997 :{ 9 }: the spirit behind it perhaps is not being realised by those who are dealing with such like cases. They need to remind themselves that such cases are not normal cases of grant of pension governed by any pensionary rules and limitations. This Scheme was introduced on the occasion of 25th Anniversary of independence by Government of India w.e.f. 15.8.1972 and was named as Freedom Fighters Pension Scheme. This Scheme was renamed as Swantarta Sainik Samman Pension Scheme, in the year 1980. The copy of the scheme has now been placed on record by Union of India as Annexure R-7 in Civil Writ Petition No.3668 of 1997. A perusal thereof would show that 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. As per the eligibility criteria, the persons whose properties were confiscated/attached or sold for participation in the national movement were also made eligible for grant of this pension. The persons eligible for pension were required to apply in duplicate on the prescribed proforma alongwith the documents. The Freedom Fighter Pension Scheme underwent a change w.e.f. 1980. As already noticed, it came to be called as `Samman Pension'. It is mentioned in Annexure R-7, that it CIVIL WRIT PETITION NO.3668 OF 1997 :{ 10 }: is extended to all freedom fighters as token of Samman. The income ceiling of Rs.5,000/- per annum or less for being eligible for pension was removed. The eligibility to get Samman Pension was sufferance of minimum six months imprisonment. The meaning of actual imprisonment was also explained in the Scheme. In 1985, the Scheme came to be named as `Swatantrata Sainik Samman Pension' and made applicable to those, who participated in Arya Samaj Movement which took place in former Hyderabad State. The other salient features, which are relevant to decide the present writ petitions may also be noticed. The eligibility criteria is regulated by Para 4 of the Scheme. Explanation has been given under the clause of imprisonment to say that the detention under the orders of a competent authority will also be considered as an imprisonment. Period of normal remission upto one month is to be treated as a part of actual imprisonment. Under trial period where the trial ends in conviction is also to be counted towards actual imprisonment suffered. The broken period is to be totalled up for computing the qualifying period. Criteria for treating a person having remained underground is also provided. A person who has lost his job in Central or State Government for participation in the National Movement is also held eligible for grant of pension. It is also defined that a martyr is a person who died or who was killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an Ex.INA or Ex.Military person who died fighting the British. It may also need a notice that apart from the main stream of the liberation struggle, the movement/mutinies , which were directed against the CIVIL WRIT PETITION NO.3668 OF 1997 :{ 11 }: British (French in case of Pondicherry and Portuguese in the case of Goa), with the freedom of country as its ultimate goal are also treated as a part of National Freedom Struggle for the purpose of grant of pension unless any such movement is specifically decided as not qualifying for grant of Samman Pension. Movement for merger of erstwhile princely States within the Indian Union after 15th August, 1947 is also considered as a part of National Freedom Movement for the purpose of grant of this pension. The evidence which would be required to substantiate the claim has also been laid down in the Scheme itself. To substantiate the proof of imprisonment/detention, an applicant is required to get a certificate from the concerned jail authorities, District Magistrate or the State Government and in case of non- availability of such certificate, co-prisoner's certificate from a sitting M.P. or M.L.A. or and Ex.M.P. or Ex.MLA, specifying the jail period. To show that one had remained underground, documentary evidence by way of Court's/Government's order proclaiming the applicant as an offender, announcing an award on his head or for his arrest or ordering his detention is required. Alternatively, substitute is a certificate from a veteran freedom fighter who had themselves undergone imprisonment for five years or more if official records are not forthcoming due to its non-availability. Order of internment or externment or any other corroboratory documentary evidence to show internment or externment is to be provided. This aspect can also be certified by a prominent freedom fighter as is in the case of person having remained underground. The Scheme has also made a provision to show a proof of loss of a job or property and the CIVIL WRIT PETITION NO.3668 OF 1997 :{ 12 }: manner in which this pension is received etc. The Scheme, thus, had made a comprehensive provision regulating all eventualities. In fact, there should not be any difficult in applying the provisions of the Scheme to decide the cases of eligible persons. Still, the authorities would dither and make this Samman Pension a matter of litigation and a combatant bout with the Swatantarta Sananis who are required to be conferred this Samman. It is not without reason that even the Hon'ble Supreme Court has to express its anguish on the bureaucratic attitude adopted by the Government while dealing with such cases. The person dealing with this Pension, which is a Samman Pension, should and is expected to realise that it is an honour which is bestowed on a freedom fighter and is not to reward or compensate the freedom fighter. He should not be, thus, made to beg for it. If the person who had filed reply to defend these cases had gone through the observation made by the Hon'ble Supreme Court in Mukund Lal Bhandari & Ors. Vs. Union of India & Ors., JT 1993 (3) SC 342, perhaps he may have adopted a different attitude. The Hon'ble Supreme Court says:- “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, CIVIL WRIT PETITION NO.3668 OF 1997 :{ 13 }: 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 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.” This object was again explained by the Hon'ble Supreme Court in Gurdial Singh Vs. Union of India & Ors., JT 2001 (8) SC CIVIL WRIT PETITION NO.3668 OF 1997 :{ 14 }: 165 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 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), Hon'ble Supreme Court has laid down a criteria regarding standard of proof needed for deciding such claims. The relevant 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 CIVIL WRIT PETITION NO.3668 OF 1997 :{ 15 }: parties. As the object of the scheme is to honour and to mitigate the sufferings