IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No. 85 of 2008 Judgment Reserved on: 19.11.2010 Date of decision: 26.11.2010 ________________________________________________________________ Union of India. .....Appellant. Versus Sant Ram and another. .....Respondents. Coram The Hon'ble Mr. Justice Kurian Joseph, C.J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the appellant: Mr. Sandeep Sharma, Assistant Solicitor General of India. For the respondents: Ms. Ranjana Parmar, Advocate, for respondent No. 1. Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass, Additional Advocate General and Mr. J.K. Verma, Deputy Advocate General, for respondent No. 2. V.K. Sharma, J. The present letters patent appeal arises out of judgment dated 15.03.2007, passed by a learned Single Judge of this Court in CWP No. 382 of 2001, titled Shri Sant Ram vs. Union of India and another, whereby the writ petition filed by contesting respondent No. 1 herein, who shall hereinafter be referred to as the petitioner, against the appellant and proforma respondent No. 2 herein has been allowed. 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... 2. The petitioner, Shri Sant Ram, being aggrieved by and dis-satisfied with rejection of his claim for grant of 'Swatantarta Sainik Samman Pension' by respondent No. 1, vide communication dated 11.03.2002, Annexure PF, had filed the writ petition with the following prayers: That the petitioner be declared to be a freedom fighter and respondent No. 1 be directed to pay the petitioner, freedom fighter's pension from the date of his application alongwith interest @ 12% per-annum on the arrears. “And the letter of rejection dated 11.3.2002 (Annexure PF), may kindly be quashed and set- aside and be held to be void-ab-initio.” That respondent No. 2 (sick respondent No. 1) be directed to pay arrears, to the petitioner from the date the scheme was announced or from the date of his application. 3. The petitioner, who claims himself to be a freedom fighter, applied for grant of freedom fighter's pension to respondent No. 2 under the Swatantarta Sainik Samman Pension Scheme, 1980 (in short the Pension Scheme), mainly on the following averments set up vide paras 2 and 3 of the amended petition: That Kunihar State was princely state in India before independence. This state acceded to the Union of India after independence and was merged in Himachal Pradesh. The Ruler of this State exercised absolute powers. Before the merger the petitioner was a subject to the ruler of the State of Kunihar and was a member of the Praja Mandal Movement which was working for ...3... the independence of the country and the merger of the State in the Indian union. The Praja mandal Movements all over the country were affiliated to the “All India States Peoples Conference” a Central organisation of which Pt. Jawahar Lal Nehru was the Chairman. That the petitioner was an active member of Praja Mandal Movement of the State of Kunihar. The Raja of Kunihar made all efforts to supress the movement by imprisoning of ordering the externment and internment of the workers of this movement. The petitioner, earned the displeasure of the Ruler of Kunihar as a result of his political activities. The Rural of Kunihar State issued the warrants of arrest of the petitioner as he had taking active part in quit India Movement of 1942. However, those warrants could not be served on the petitioner as the petitioner went underground and kept on working for the Praja Mandal Movement. During this period the petitioner had to face various hardships, he also suffered heavy financial loss but he continued his political activities and kept on actively participating in the Freedom Fighter Movement. He remained underground from 1945 to 1947, till the State of Kunihar was merged in the Indian Union. 4. The claim of the petitioner for grant of freedom fighter's pension was supported by respondent No. 2 (the State of H.P.), as is apparent from its stand incorporated in reply to paras 6 to 10 of the amended petition, which is as follows: Admitted to the extent that these paras partly related to respondent No. 1 and partly relate to ...4... respondent No. 2. In the year, 1996 the petitioner applied for the grant of samman pension under the Swatantrate Sainik Samman Pension Scheme-1980 to respondent No. 1 alongwith a copy to respondent No. 2. Respondent No. 2 got verified the petitioner's case from the Deputy Commissioner, Solan and after getting the verification report from the Deputy Commissioner, Solan, the claim of the petitioner alongwith the report of Deputy Commissioner, Solan was forwarded to respondent no. 1 vide this department letter No. GAD-F-F(4-5/2000 dated 6.1.2001. It is further submitted that the petitioner also applied for the grant of State Samman Rashi under the H.P. Freedom Fighters Samman Yojana-1985 in the year, 1995. The claim of the petitioner was placed before the Sub-Committee of the H.P. Freedom Fighters Welfare Board in its 36th meeting held on 17.6.1995. The Sub- Committee considered the petitioner's claim sympathetically and recommended his freedom fighter. Respondent No. 2 declared the petitioner as a freedom fighter and sanctioned Samman Rashi w.e.f. 17.6.1995 for his life time. 5. However, respondent No. 2, Union of India, apart from placing reliance upon some of the judicial pronouncements rendered on the subject by the Hon'ble Apex Court and some other High Courts, contested the claim mainly on the following averments set up vide paras 1 to 5 of the para-wise comments: Para 1 It is admitted that the petitioner had filed CWP ...5... No. 382/2001 in the Hon'ble Court for grant of S.S.S. Pension. But every freedom fighter is not entitled for grant of pension under the provisions of the Scheme. He has to satisfy the eligibility condition of a minimum of imprisonment / internment / externment / abscondence against any executive action of the Govt. The petitioner should have furnished documentary evidence based on official records in support of his claimed suffering which he did not. The secondary evidence like PKC is not acceptable unless the Non-Availability of Records certificate (NARC) from all the sources of the State Govt. is produced. Para 2. It is admitted that State Govt. has granted Freedom Fighters Pension to the petitioner under the provisions of their Scheme. But the S.S.S. Pension of the Central Govt. is totally different. It is also true that this respondent had called for a verification-cum-entitlement to pension report from the State Govt. vide letter dated 10.01.1996 and reminder dated 24.01.2001. In response to this respondent's letter to State Govt., the State Govt. sent their report vide letter dated 02.08.2001 (Annexure R/3) stating that in the ...6... absence of documentary evidence, the underground suffering and taking part in Praja Mandal activities by the petitioner, they are unable to recommend the case of the petitioner for grant of S.S.S. Pension. Para 3. It is true that the case of the petitioner for grant of S.S.S. Pension was considered by this respondent on the basis of the report of the State govt. and documents produced by the petitioner. After consideration of the facts of the case of the applicant for grant of S.S.S. Pension and in compliance of the order dated 10.01.2002 of the Hon'ble Court, a Speaking Order dated 11.03.2002 was issued to the petitioner indicating in details the reasons for not accepting his claim for grant of S.S.S. Pension to him (copy attached with the Writ Petition as Annexure PF). Para 4. This respondent has no objection if the petitioner places new facts of the case and amends his Writ Petition already filed before the Hon'ble Court in sequence of the Speaking Order dated 11.03.2002. whatever has been stated by the petitioner in this para, this is within the jurisdiction of the Hon'ble Court to decide. Para 5. The petitioner has added in this para (a&b) that ...7... the letter dated 11.03.2002 is arbitrary and capricious and in contravention of various decisions of the Hon'ble Court as well as the Hon'ble Supreme Court of India. It is totally denied. The decision was taken on the basis of the facts of the case, report of the State Govt. and keeping in view the provisions of the S.S.S. Pension Scheme. The petitioner has not furnish any documentary evidence based on official records in support of his claim suffering. Under the provisions of the Scheme, if records are not available, the petitioner has to furnish two PKCs from the certifiers who belong to his district and have two years jail suffering to their credit and getting S.S.S. Pension. The PKCs furnished by the petitioner are not acceptable because these are not in proforma prescribed for this purpose. He has also not furnished any Non – Availability of Records Certificate (NARC) from the State Govt. that the records are not available with the State Govt. for the relevant time. The petitioner has failed to fulfill the documentary requirements prescribed under the provisions of S.S.S. Pension Scheme. The State Govt. has also not recommended his case for grant of S.S.S. Pension ...8... in the absence of official records about his suffering during the days of Freedom Struggle. Thus, this respondent did not find him eligible for grant of S.S.S. Pension and has rightly rejected his claim for S.S.S. Pension. The petition is misconceived and is liable to be dismissed. None of the grounds are sustainable. However, it may be submitted that this respondent is still prepared to consider his case afresh if he can produce evidence in support of his externment suffering from official records and get it routed through the State Govt. 6. On adjudication, the learned Single Judge has allowed the petition after quashing the impugned communication dated 11.03.2002, Annexure PF, conveying rejection of petitioner's claim for freedom fighter's pension as per operative part of the impugned judgment dated 15.03.2007, which is to the following effect: Learned counsel appearing for the petitioner submits that there are number of decisions on the basis of which this Court has held that certification of the sufferings by other freedom fighters is sufficient proof and that it can be made the basis for being granted Freedom Fighters’ Pension under the 1980 Scheme. Learned counsel has placed reliance on CWP No.310 of 2001, Titled: Anant Ram vs. Union of India & Others, decided on 20.12.2006, which has considered the other ...9... decisions of this Court on the issue including the acceptance of certificates from other freedom fighters as proof of suffering. No decision to the contrary has been cited before me. There is merit in the submissions made by the learned counsel appearing for the petitioner. From the pleadings and the record, I am satisfied that the petitioner had submitted ample proof to the respondents of his suffering in the freedom struggle. The certificates had to be considered and a decision given thereon. This exercise not having been undertaken, the rejection of the case of the petitioner is unconstitutional and cannot be sustained. Annexure PF is, therefore, quashed and set aside. A direction is issued to the respondents to dispose of the entire case of the petitioner within a period of eight weeks from today. No insistence will be made for production of original records by the petitioner when it has been certified by respondent No. 2 that it is not possible to obtain such record. The writ petition is allowed in terms as aforesaid. There shall be no order as to costs. Needless to say that the consideration of the case of the petitioner will be strictly in accordance with the judgments passed by this Court, more especially in CWP 310 of 2001. 7. We have heard the learned Assistant Solicitor General of India, the learned Advocate General/Additional/Deputy Advocate General and learned counsel for the parties and perused the records. 8. Salient features of the Pension Scheme have been brought on record on behalf of respondent No. 1, Union of India, alongwith its reply as Annexure-R-I/I, relevant portions whereof ...10... relating to this case are extracted below: 2. Who is eligible for Samman Pension All the persons who participated in the freedom movement in some way or the other are not eligible for Samman Pension. Only following category of freedom fighters are eligible for the Samman Pension under the scheme subject to furnishing of the specified evidences:- 2.3 underground:- A person who on account of his participation in freedom struggle remained underground for more than six months provided he was: A. a proclaimed offender; or B. one on whom an award for arrest was announced; or C. one for whose detention, order was issued but not served. Explanation: Voluntary underground suffering or self- exile suffering for party work under command of the party leaders, are not covered as eligible sufferings for pension under the Central Scheme. The claim of underground suffering is considered subject to furnishing of the following evidence:- (a) Documentary evidence by way of Court's /Govt.'s orders proclaiming the applicant as an absconder, announcing an award on his head or for his arrest for ordering his detention. (b) In case records of the relevant period are not available, secondary evidences in the form of a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be from the same administrative unit 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. ...11... 5. Acceptability of Secondary Evidence Secondary evidences can be considered only if supported by a valid Non-Availability of Records certificate (NARC). The provisions of the Scheme were clarified to the State Governments in several circulars of the Govt. of India, gist of which is available in the Appendix attached herewith. The instructions on NARC were reiterated by the Govt. of India, Ministry of Home Affairs, vide Circular no. 8/12/95-FF(P) dated 2.11.98, relevant extracts of which are reproduced as follows- “As per the scheme, claims of the applicants for samman pension are required to be supported by the duly verified official records of the relevant times. Only in case of non- availability of such records, secondary evidences, as specified in the scheme, can be made basis of such claims. However, due care and caution is required in such cases in view of several instances of bogus/forged claims which have come to the notice of the Central Government. It is of utmost importance that before recommending such cases, complete facts of the case in which the applicant claims involvement, are verified from all the agencies which could have been concerned with the matter. These may include the police station concerned, the District administration, the jurisdictional court, competent authority issuing detention order, the advisory board/appellate court, prison authorities, and intelligence agencies. Discrete enquiry should also be made to ascertain genuineness of the claims. The NARC should be issued only after the above verification. It is is reiterated that the NARC should invariably be worded as follows. “All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available.” 9. It shall be pertinent to observe at this stage that on 28.06.2010, while admitting the present appeal, the following order was passed by this Court: ...12... LPA No. 85 of 2008 with CMP No. 556 of 2000 Admitted. Issue fresh notice to the parties. The appellant will furnish the current information with regard to the implementation of the judgment. Post on 4.8.2010. 10. In pursuance of the above order dated 28.06.2010, freedom fighter's pension has since been sanctioned in favour of the petitioner by respondent no. 1 as stated vide communication dated 26.07.2010, addressed by the Under Secretary to the Government of India, Ministry of Home Affairs to the Assistant Solicitor General of India, High Court of Himachal Pradesh, which is as under: Subject: LPA No. 85/2008 titled UOI Vs. Shri Sant Ram in the High Court of Himachal Pradesh at Shimla. Sir, I am directed to refer to your letter No. Rs/6033/X dated 28.6.2010 on subject mentioned above and to inform that the Single judge order in this case has been implemented by this Ministry. The pension was sanctioned to Shri Sant Ram vide this Ministry's letter of even number dated 30.10.2007 (copy enclosed). 11. Thus, it is manifest that the impugned judgment dated 15.3.2007 has since been implemented by respondent No. 1, though “subject to right of Government to file LPA against the above referred judgment.” 12. It shall also be pertinent to observe that the petitioner had already been declared as freedom fighter by the State Government and is receiving monthly honorarium of ` 400/- from ...13... the State Government w.e.f. 17th June, 1995, vide letter dated 23.8.1995, Annexure PE. 13. Admittedly, primary evidence with regard to the petitioner remaining underground for a period of more than six months during the freedom struggle, as required under the Pension Scheme, was not available due to long lapse of time, as is apparent from letters dated 29th July, 1997, sent by the Sub Divisional Officer (Civil), Arki to the Deputy Commissioner, Solan, 5th January, 2001, written by the Deputy Commissioner, Solan to the Commissioner & Secretary (Gen. Admn.) Government of Himachal Pradesh, 6th January, 2001 addressed by the Commissioner-cum-Secretary (Gen. Admn.) Government of Himachal Pradesh to the Under Secretary, Government of India, Ministry of Home Affairs, New Delhi and 2nd August, 2001 written by the Commissioner-cum-Secretary (Gen. Admn.) Government of Himachal Pradesh to the Under Secretary (Gen. Admn.) Government of Himachal Pradesh, brought on record on behalf of respondent No.1 alongwith its reply as Annexure R/3 (Colly.). In such situation, when primary evidence, as above, was not available, as is manifest from the above letters which are in the nature of 'Non-Availability of Records Certificates' (NARCs), it was incumbent upon respondent No. 1 to have considered the reliable and cogent secondary evidence submitted by the petitioner in the form of 'Personal Knowledge Certificates' (PKCs) issued in his favour by proven freedom fighters and brought on record by the petitioner as Annexures PB/1, PC/1 and PD/1, which are to the following effect: ...14... Annexure-PB/1 “CERTIFICATE Certified that Sh. Sant Ram son of Shri Bijja Ram resident of Kunihar, (H.P.) is personally known to me. He had participated in the Kunihar State Praja Mandal Movement alongwith me. Becaue of his participation, the Rana of Kunihar State had tortured him, and after that he worked for Praja mandal by going underground. He remained underground from 1945 to 47 and he suffered heavily. Dated: 11.3.1995 Sd/- Thakur Dass Niddar, PPO No. 2020, FF Cent. Patta Mahlog, Distt. Solan (HP). Annexure-PC/1 CERTIFICATE I, verify that Sh. Sant Ram s/o Sh. Bijja Ram, resident of Mukkam Kunihar, the. Arki Distt. Solan is personally known to me. He had actively participated in the Praja Mandal Movement of Kunihar State during the period of 1945 to 47. He suffered various atrocities at the hands of Rana of Kunihar State. Finally, he had to go underground and worked for the movement. Thus he remained underground from 1945 to 47 and he also suffered Swatantarta Sainani Samman Pension in every respect. I, have suffered imprisonment for more than two years in connection with the Praja ...15... Mandal Movement. Sh. Sant Ram belongs to the Village which is very close to mine. I am issuing this certificate on the basis of my personal knowledge. Dated: 4.8.1990. Sd/- Sita Ram, Freedom Fighter, Patta Mahlog, Distt. Solan. Annexure-PD/1 CERTIFICATE Certified that Sh. Sant Ram s/o Sh. Bijja Ram resident of Village Hatkot, (Kunihar) the. Arki Distt. Solan H.P. is personally known to me. This person has been an active member alongwith us in the freedom fighters movement. Because of his participation in the “Quit India Movement” which was at its peak in the month of August, 1942, the Raja of Kunihar was on the verge of arresting him. Therefore, this person had to work by remaining underground for about 3 years. He has contributed in the fight for freedom. He had equally and truly participated in the freedom movement of the country alongwith us. Dated: 18.11.89 Sd/- Badri Singh, General Secretary, Himachal Pradesh, Freedom Fighter, The. Solan, H.P.” ...16... 14. However, since the above uncontrovertible secondary evidence in the form of 'Personal Knowledge Certificates' was not taken into consideration by respondent No. 1, we have no doubt in our minds that order dated 11.3.2001, Annexure PF, conveying rejection of freedom fighter's pension in favour of the petitioner was liable to be quashed and has rightly been quashed by the learned Single Judge and as such the impugned judgment dated 15.3.2007 does not call for any interference in the present letters patent appeal. 15. In view of the above, the appeal is dismissed being without any merit. (Justice Kurian Joseph) Chief Justice (Justice V.K. Sharma) Judge November 26, 2010 (virender)