CIVIL WRIT PETITION NO13970 OF 2005 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 22, 2008 Gura Singh .....Petitioner VERSUS The Government of India and another ....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. Amit Chopra, Advocate, for the petitioner. Mr. N. S. Pawar, Addl.A.G., Punjab, for the State. **** RANJIT SINGH, J. Claiming himself to be a freedom fighter who took part in Harsha Chhina Moga Morcha Struggle, the petitioner has approached this Court for grant of freedom fighter pension, now named as Swatantra Sainik Samman Pension. The petitioner states that he is fully covered by the Scheme as he had undergone imprisonment in the Central Jail, Lahore, from 18.7.1946 to 31.1.1947 and, thus, would be entitled to the pension under the clause of the Scheme, which regulates the grant of the Pension to all CIVIL WRIT PETITION NO13970 OF 2005 :{ 2 }: those freedom fighters, who had undergone imprisonment of more than six months. The facts as disclosed by the petitioner in the writ petition would reflect un-pleasant state of affair. It seems that the petitioner though was held entitled to the Samman Pension on more than one occasion but was not released any pension. He has, thus, been forced to make more than one approach before this Court. The policy which regulates the grant of said pension has sufficiently been mentioned in detail while disposing of three Civil Writ Petition Nos.3668 of 1997, 16570 of 2001 and 2766 of 2004 by a common order. This Scheme which was known as Freedom Fighters Pension Scheme was initially formulated by the Government to grant freedom fighter/Sainik Samman Pension. This was termed more as an honour rather then any pension as understood in the normal parlance. The Scheme was subsequently renamed as `Swatantarta Sainik Samman Pension'. This Pension Scheme initially introduced on the occasion of 25th Anniversary of Independent w.e.f. 15.8.1972 underwent a change in the year 1980. The eligibility for grant of this pension was sufferance of minimum 6 months imprisonment. This Scheme was made applicable to all those persons who participated in Arya Samaj Movement or other such movements, which were undertaken to achieve freedom for the country. Apart from the main stream of the liberation struggle, the movement/mutinies, which were directed against the British, with the freedom of the country as its ultimate goal have also been treated as a part of National Freedom Struggle for the purpose of grant of pension unless any such movement is CIVIL WRIT PETITION NO13970 OF 2005 :{ 3 }: 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 part of National Freedom Movement for the purpose of grant of this pension. The proof to substantiate the participation in the freedom struggle in the form of jail certificates and in case of non-availability of such certificate, then co-prisoner's certificate can be given by M.P. or M.L.A. or an Ex.M.P or Ex.MLA. Alternative, substitute is a certificate from a veteran freedom fighters who had themselves undergone imprisonment, if the official records are not forthcoming due to its non-availability. The petitioner applied for grant of pension, which remained under consideration and vide letter dated 28.9.1999, the petitioner was informed about the decision of the Government Punjab, whereby sanction was accorded for grant of provisional Swatantarta Samman Pension to him. The order of provisional grant of this pension, however, did not fetch any pension for the petitioner for which he had to again sent a representation. Though, the pension was provisionally sanctioned to the petitioner but still the Punjab Government wrote to Deputy Commissioner, Amritsar, on 5.11.2001 to verify if the petitioner had remained imprisoned atleast for one year and further whether the persons who had given the certificates were the Tamra Patra holders etc. or not. This seems to have followed because the petitioner had forwarded the certificates of co- prisoners, namely, Gursharan Singh and Kundan Singh, in support of his jail term in connection with Harsha Chhina Moga Morcha CIVIL WRIT PETITION NO13970 OF 2005 :{ 4 }: Struggle. It may need a mention that Gursharan Singh and Kundan Singh were recipient of Swatantra Sainik Samman Pension. Despite having completed all the formalities in the manner afore-mentioned, the petitioner was not released the said pension. The Government, however, issued another letter to the Deputy Commissioner, Amritsar, on 3.12.2002 asking for certain documents. Seeing the inaction on the part of the authorities, the petitioner had also filed Civil Writ Petition No.17352 of 2001, which however, he withdrew when assurance was given to him by respondent No.2 that his case was under active consideration. In the meanwhile, the petitioner also submitted an affidavit from Kaka Singh, who was Tamra Patra holder and was the co-prisoners of the petitioner in Central Jail, Lahore. Kaka Singh is recipient of Sainik Samman Pension. Respondent Punjab Government, thus, recommended the case of the petitioner for grant of this pension through their letter dated 21.8.2003. On 6.10.2003, sanction was accorded for grant of pension to the petitioner with effect from 15.9.2003. The copy of this order has been placed on record as Annexure P-13. It is clearly mentioned that this pension will be for life time of the recipient and would be in addition to pension if any sanctioned by the Central Government. The petitioner, however, still remained a bit unsatisfied as persons similarly situated had been granted pension w.e.f. 1.4.1982. He accordingly requested the respondents to sanction pension to him also with effect from said date. The Punjab Government, however, in response intimated the petitioner that it would sanction the pension if the Central Government would grant the said pension to the CIVIL WRIT PETITION NO13970 OF 2005 :{ 5 }: petitioner. The Central Government, however, without properly appreciating the record and the documents submitted by the petitioner rejected the claim of the petitioner by disclosing following reasons:- “a. You have failed to produce acceptable documentary evidence in support of your claim. b. You have produced co-prisoner certificate (CPCs) from Shri Gursharan Singh & Shri Kundan Singh in support of your claim. These co-prisoner Certificates (CPCs) are not acceptable for the following reason:- (i)Shri Gursharan Singh s/o Sh.Bishan Singh is not eligible certifier proven suffering is less than one year as per record available in the Ministry and (ii)No record relating to Shri Kundan Singh s/o Sh.Bhan Singh available in this Ministry. It is, therefore, not possible to verify the correctness of his certificate.” The petitioner, however, would find a serious fault with the reasoning given by the respondent-Government while rejecting his claim. He would rightly point out that the pension had already been sanctioned to the petitioner on more than one occasions and, thus, the impugned order could not have been passed. The pension, which had been sanctioned to the petitioner by the State Government was also discontinued. It is noticed that the petitioner has relied on the certificates issued by the co-prisoners, namely, Gursharan Singh and Kundan Singh. These certificates were duly verified by Deputy CIVIL WRIT PETITION NO13970 OF 2005 :{ 6 }: Commissioner, Amritsar, and then only the claim of the petitioner was recommended. Just to show that the stand of the respondent- Central Government is totally unjustified, the petitioner has made reference to a book of Freedom Fighters published in June 1973. This contains the names of those persons who were presented Tamra Patra by the then Prime Minister of India, Smt.Indiri Gandhi. Name of Gursharan Singh son of Bishan Singh figures at Sr.No.425, where it is mentioned that he had undergone an imprisonment of 1 year and 9 months. Similarly, this list contains the name of Kundan Singh at Sr.No.380, who is also shown to be recipient of Tamra Patra. Thus, the reasons advanced by the Central Government to deny pension to the petitioner on the ground that Gursharan Singh had undergone less than one year imprisonment and that they did not have record in respect of Kundan Singh can certainly be termed as false and raised without checking the record. The petitioner accordingly made a representation on 18.7.2005, attaching therewith a photo copy of the extracts from the book, which was published by the Government of Punjab. Government of Punjab as well as the Union of India have filed replies. Evasive and a convenient stand is taken by the State of Punjab that they would release the pension to the petitioner in case the Central Government decided to grant the said pension to him. The fact that pension was sanctioned to the petitioner, as averred by him is admitted but it is stated that the same was sanctioned inadvertently. It is also claimed that the same was withdrawn. The averment made by the petitioner that Deputy Commissioner, CIVIL WRIT PETITION NO13970 OF 2005 :{ 7 }: Amritsar, after due verification had submitted his report recommending the release of pension again is admitted. It is further admitted that the petitioner had submitted co-prisoner certificate from two persons, who were recipient of said pension. The averment that both these co-prioress, namely, Gursharan Singh and Kundan Singh are Tamra Patra holders and getting Swatantra Sainik Samman Pension from the Central Government as well as from the State Government is again admitted. Despite such admissions, the respondent Government has decided to reject the claim of the petitioner, which would rather sound bizarre. The Union of India, on the other hand, has made elaborate mention to the evidence which would be acceptable and what is primary and secondary evidence in this regard. While replying to the contents of the writ petition that claim of the petitioner was supported by certificates of two co-prisoners, it is mentioned that these certificates are not acceptable due to the reason as were disclosed in the order rejecting the claim of the petitioner, which are repeated here in the reply. This would reflect the mind set of the person filing the reply besides showing total careless and callous approach on his part. The averment that the certificates from the co-prisoners are not acceptable on the ground that Gursharan Singh had a jail suffering of less than one year as per the record available with the Ministry and that the record relating to Kundan Singh is not available with the Ministry is in direct conflict and in contradiction with the admissions made by the person filing reply while responding to the next para of the petition where the petitioner has claimed that CIVIL WRIT PETITION NO13970 OF 2005 :{ 8 }: both these persons were getting Swatantra Sainik Samman Pension from the Central as well as the State Government. In Para 8 of the petition, it is averred that both these co-prisoners are Tamar Patra holders and are in receipt of the pension. Photostat copies of their pension orders are also attached. While responding to this averment, the person filing the reply on behalf of the respondents has admitted the same to be correct. It would be interesting to reproduce the contents of Para 8 of the reply, which reads:- “8. That the contents of Para NO.8 of the petition are admitted to be correct, that both Sh.Gurcharan Singh and Sh.Kundan Singh are Central Pensioners.” This has to be noticed in contrast to what has been stated in response to reply to Para 7 of the petition, which is contained in the proceeding line, which reads:- “7 (ii) Record relating to Shri Kundan Singh s/o Shri Bhan Singh is not available in this Ministry to verify the genuineness of his claimed sufferings.” Can there be any justification for this contradiction? In one breath, it is admitted that Kundan Singh is recipient of Central Government Pension and just prior thereto, it is stated that no record is available about Kundan Singh to verify the genuineness of sufferings of the petitioner. This should be enough to reject the entire stand of the respondent-Union of India. There is no point reminding the respondents about their responsibility towards the freedom fighters. We are enjoying the fruits of freedom because of the sacrifices made by such persons who, without caring for their CIVIL WRIT PETITION NO13970 OF 2005 :{ 9 }: lives and liberties, did something for the nation. They certainly would deserve better treatment rather than this careless and casual approach. This is not a manner to honour the valuable sacrifices made by such persons, which is the spirit of the scheme. The Hon'ble Supreme Court in the case of Gurdial Singh Vs. Union of India & Ors.,, JT 2001 (8) SC 165, had issued a well directed reminder to all those who are to deal with the said Pension Scheme by saying:- 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.” The standard of proof which is required in such cases was also laid down by the Hon'ble Supreme Court in Gurdial Singh's case (supra) and liberal and not the technical approach was the CIVIL WRIT PETITION NO13970 OF 2005 :{ 10 }: directions given to all concerned to follow while determining the merits of the case. The case of such claimants, according to the Supreme Court, is required to be determined on the basis of probabilities and not on the touch stone of the test of beyond reasonable doubt. It is further observed that once on the basis of evidence it is probablised that the claimant has suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour. The manner in which the claim of the petitioner has been attended to by both the respondents needs to be deprecated. Punjab Government, after verifying the claim, had sanctioned the pension to the petitioner, though provisionally but had subsequently withdrawn without any sufficient or cogent reasons. The stand of the respondent-Union of India has just been noticed in detail, which would show that it is totally unacceptable. They have the record lying with them that Kundan Singh is recipient of Central Pension, still they would reject the claim of the petitioner on the ground that they do not have a record of Kundan Singh to verify the fact that the certificate is by co-prisoner. The respondent-Union of India was apprised and provided record to show that Gursharan Singh, co-prisoner had undergone imprisonment of 1 year and 9 months but the person filing reply would still stick to the stand taken by them in the order rejecting the claim that he had undergone a period of imprisonment less than one year. This stand is totally unreasonable. The impugned order as such can not be sustained. The same is set-aside. The petitioner has been made to spend CIVIL WRIT PETITION NO13970 OF 2005 :{ 11 }: considerable time in demanding his claim for pension, which is due to him and the same has been rejected on totally misconceived reasons. The case for issuance of mandamus, thus, is made out for directing the respondents, Union of India and State of Punjab, to release this pension to the petitioner within a period of three months. The petitioner would be entitled to this pension from the date of his application. He would be entitled to receive the arrears with interest @ 9% per annum from the date it is due to the date of payment. Due to the approach adopted by the respondents, the petitioner would deserve costs of this petition, which is assessed at Rs.10,000/-. Let the arrears due to the petitioner alongwith costs be paid to him within a period of three months from the date of receipt of copy of this order. May 22 ,2008 ( RANJIT SINGH ) khurmi JUDGE