IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.08.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI Writ Appeal No.3880 OF 2002 The Government of India, rep. by its Under Secretary, Ministry of Home Affairs, Freedom Fighters Division, Jaisalmer House, Mansingh Road, New Delhi-110 001. ... Appellant. vs. 1.R.Chinnasamy (died) 2.Jothimani 3.C.Santhanalakshmi 4.C.Sivasubramani 5.C.Bhoopathi 6.C.Selvamurugan ... Respondents [Respondents 2 to 6 were substituted as legal heirs of deceased sole Respondents vide order dated 17.1.2006 in WA MP.No. 4528 of 2004] Prayer: Writ Appeals filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.No.8955 of 2001 dated 13.3.2002. This Petition filed under Art 226 of the Constitution of India to issue a writ of Certiorarified Mandamus or direction calling for the records of the respondents order dated 30.1.2001 and quash the same thereby directing the respondent to grant swatantrata sainik Samman Pension to the petitioner from the date of application along with cost, damages, fair and adequate compensation. For Appellant : Mr.M.Ravindran, Addl. Solicitor General of India For Respondents : Mr.J.Saravanavel https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT R.BANUMATHI,J This Writ Appeal arises out of the order of learned single Judge in W.P.No.8955 of 2001 dated 30.01.2001 whereby the learned single Judge directed the Appellant-Government of India to pay "Swatantara Sainik Samman Pension" [SSS Pension] from 25.06.1985 i.e. from the date of application to the 1st respondent. 2. Pending Writ Appeal, respondent-Chinnasamy died and his legal representatives [daughters and sons i.e. Jothimani, Santhanalakshmi, Sivasubramani, Bhoopathi, Selvamurugan] were brought on record as Appellants 2 to 6 in the Appeal. 3. Brief facts are that Respondent-Writ Petitioner suffered imprisonment from 15.08.1942 to 15.07.1943 due to participation in the freedom movement. State Government recommended freedom fighters pension to the Writ Petitioner to the Central Government on 30.07.1998. By the letter No.129/718/85-FF (S2) dated 23.02.1999, the Appellant rejected the claim of the Writ Petitioner. Challenging the order of Appellant, Writ Petitioner filed W.P.No.14778/1999. By the order dated 27.11.2000, the High Court directed the Writ Petitioner to file an application along with relevant documents to the Central Government Authorities within one month and directed the Appellant to pass appropriate orders in accordance with law within three months thereafter. Further case of Writ Petitioner is that as per the order of this Court, Writ Petitioner sent his application with necessary documents on 23.12.2000 and the Appellant received the same on 18.1.2001. By the order dated 30.1.2001, the Appellant again rejected the claim of Writ Petitioner which led to the filing of Writ Petition seeking for a direction to Government of India to pay Swatantara Sainik Samman Pension to the Writ Petitioner. 4. Admitting the filing of Writ Petition in W.P.No.14778/1999 and the direction of the Court dated 27.11.2000 directing the Writ Petitioner to submit his representation along with relevant documents and the receipt of representation, the Appellant-Union of India has filed counter contending that Writ Petitioner has not filed copy of arrest warrant and relevant documents, representation of the Writ Petitioner has not been considered. 5. Placing reliance upon (2001) 8 SCC 8 [Gurdial Singh v. Union of India and others] and 2001 Writ Law Reporter 549 [I.V.K.Malaichamy (deceased) and another v. The Government of India and others], the learned single Judge observed that cases of freedom fighters are to be examined on the basis of probabilities and not on the touchstone of the test of "beyond reasonable doubt". The learned single Judge further held that earlier High Court issued directions to consider the representation of the Writ Petitioner, but the Appellant has not properly considered the https://hcservices.ecourts.gov.in/hcservices/ representation of the Writ Petitioner, the learned single Judge allowed the Writ Petition and directed the Appellant-Union of India to sanction SSS Pension to the Writ Petitioner from the date of his application dated 25.6.1985, which is challenged in this Appeal. 6. The learned counsel for Appellant contended that the learned single judge did not properly consider that the Scheme specifies nature of primary evidence and the secondary evidence and authorities are cautioned in the matter of relying upon secondary evidence. It was further contended that SSS pension is not an old age pension and in (1997) 5 SCC 301 (HIMACHAL PRADESH & ANOTHER VS. SMT.JAFLI DEVI), the Supreme Court held that the policy laid down by the Government should not be departed from merely on account of sympathetic consideration and hardship. Further, placing reliance upon (1996) 10 SCC 351 (UNION OF INDAI VS. MOHAN SINGH AND OTHERS), the learned counsel contended that it is for the Central Government to verify the sufficiency or otherwise of the documents to sustain the claim and while so the learned single Judge erred in issuing positive mandamus to the Appellant to sanction SSS pension. 7. Drawing our attention to the earlier proceedings, the learned counsel for Respondents submitted that since the Appellant had not properly considered the case of the freedom fighters, pointing out the non-application of mind, the learned single Judge rightly directed the Appellant to sanction SSS pension. The learned counsel has also drawn our attention to the subsequent development pending writ Appeal, where Appellant had passed orders granting Life Time Arrears 'LTA' to the legal heirs of the deceased Writ Petitioner, which, of course, is subject to the result of writ appeal. 8. As regards the sufficiency of the proof, the scheme itself mentions the documents which are required to be produced before the Government. As far as the eligibility conditions are concerned, the scheme interalia, provides that a person who had suffered underground in connection with the freedom struggle for atleast six months may be eligible for Swathantra Sainik Samman Pension on furnishing of the specified evidences provided such sufferings were on account of any of the following reasons:- "He/She was a proclaimed offender; or one on whom an award for arrest was announced; or one for whose detention, order was issued but not served. Voluntary underground suffering or self-exile for party work under the command of the party leaders are not covered as eligible sufferings for pension under the scheme. The claim of underground suffering can be considered subject to furnishing of the following evidences; i)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 or ordering his detention. https://hcservices.ecourts.gov.in/hcservices/ ii)Where records of the relevant period are not available, a non-availability of records certificate (NARC) from the concerned State/union territory administration along with 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 as secondary evidence. The NARC should not be general or vague and should conform to the instructions issued by the Govt. of India, Ministry of Home Affairs, vide Circular No.8/12/95-FF(P) dated 7.6.96 which was reiterated on 2.11.98. The institution, inter alia, requires the State Governments to issue NARC only after due verification from all the sources. The NARC can be treated valid when it is furnished in the following manner. "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. The deceased Writ petitioner claimed underground suffering from 15.8.1942 to 15.7.1943. By his application dated 25.6.1985, the deceased Writ Petitioner applied for SSS pension by claiming underground suffering in Quit India Movement by producing following documents: ●Recommendation of the District Level Screening Committee, wherein the Collector of Dindigul recommended the case based on the underground certificates issued by A.M.Lakshmana Naidu and K.Rengasamy. ●Non-availability of Records Certificate records (NARC) from District Munsif-cum-Judicial Magistrate, Kodaikanal. 10. Earlier, by letter dated 30.7.1998, the Government of Tamil Nadu recommended the case of the deceased Writ Petitioner with the following recommendations: ".... I am to state that Thiru.R.Chinnasamy claims to have remained underground during the period from 15.8.42 to 15.7.43 for the cause of the nation. In proof of his claim, the applicant has produced underground certificates from Thiru.A.B.Nagier of Madurai district, Thiru.A.M.Lakshmana Naidu of Madurai district and Thiru.K.Rengasamy of Dindigul district. The applicant has produced the true copy of the jail certificate of https://hcservices.ecourts.gov.in/hcservices/ Thiru.A.B.Nagier and xerox copy of jail certificates of Tvl.A.M.Lakshmana Naidu and K.Rengasamy. Out of the above three certificates the certificate issued by Thiru.A.B.Nagier is invalid as he was black listed and now he is also no more. As per the jail certificate of other two certificates they have suffered imprisonment for not less than two years. The applicant has also produced the non-availability of records certificate from the District Munsif-cum-Judicial Magistrate, Kodaikanal. The case of the applicant has been placed before the District level Screening Committee and the District Level Screening Committee has recommended the case based on the certificates issued by Tvl.A.M.Lakshmana Naidu and K.Rengasamy. The Collector of Dindigul also recommended the case. The underground certificates issued by Tvl.A.M.Lakshmana Naidu and K.Rengasamy and the non- availability of records certificate are verified with the concerned (original verification reports enclosed.) (underlining added) 11. The Appellant – Government of India called for more particulars regarding NARC, which was also submitted by deceased Writ Petitioner. The Government of India rejected the claim of the Writ Petitioner by the impugned order dated 30.1.2001 with the following observations: ".... In support of your claim, you have submitted Personal knowledge certificates from 3 freedom fighters, namely, Shri.A.B.Nagier and Shri.A.M.Lakshmana Naidu of Madurai district and Shri.K.Rengasamy of Dindigul District. As per the report of the State Government,. Out of these certificates, the certificate from Shri.A.B.Nagiar is invalid as he was black listed. As regards the remaining two certificates it is stated that they have suffered imprisonment for less than 2 years and therefore cannot verify your sufferings. 6. ..... Moreover, the non-availability of records certificate is not in accordance with the guidelines/format as detailed in para 4(ii) above. In the absence of the necessary non-availability of records certificate from the State Government the personal knowledge certificates submitted by you are not acceptable evidence under the scheme. The personal knowledge certificates are acceptable only if the same are accompanied by valid non-availability of records certificate from the State Government. (underlining added) 12. One of the grounds on which the claim of deceased Writ Petitioner was rejected was that the persons, who issued the two certificates (A.M.Lakshmana Naidu and K.Rengasamy) have suffered imprisonment for less than two years and therefore they cannot verify Writ Petitioner's sufferings. The ground stated by the Appellant for rejection of the deceased Writ Petitioner's Claim is https://hcservices.ecourts.gov.in/hcservices/ factually incorrect and unsustainable. As pointed out earlier in its recommendation letter dated 30.7.1998, Government of Tamil Nadu clearly stated that the jail certificates were issued by A.M.Lakshmanana Naidu and K.Rengasamy, who suffered imprisonment for not less than two years. Likewise, even though the deceased Writ Petitioner has produced non-availability of records certificate from District Munsif-cum-Judicial magistrate, Kodaikanal, the same was also rejected on the ground that NARC is not in accordance with the guidelines/format. 13. Of course, while rejecting the claim of the deceased Writ Petitioner, there seems to be non-application of mind by the Appellant. In its recommendation, when the State Government has clearly stated that A.M.Lakshmana Naidu and K.Rangasamy have suffered imprisonment for not less than two years, in the impugned order, Appellant has stated that both of them have suffered underground imprisonment for less than two years and therefore they cannot verify their sufferings. Of course, the learned single judge was right in observing that the claim of the Writ Petitioner was not properly considered. But as held in AIR 1993 SC 2127 [M.L.Bhandari and others v. Union of India] and UNION OF INDIA VS. MOHAN SINGH AND OTHERS (1996) 3 SCC 351, "as regards the sufficiency of the proof, the scheme itself mentions the documents which are required to be produced before the Government and it is not possible for the Court to scrutinise the documents which the petitioners had produced in support of their claim and it is the function of the Government to do so". Since only the Government can scrutinise the sufficiency of documents, it would have been appropriate if the learned single Judge remitted the matter back to the Appellant for fresh consideration. While the power vests with the Government to scrutinise the documents, the learned single Judge ought not to have issued positive mandamus to the Appellant to sanction the pension from the date of application. 14. Even though we do not subscribe to the views taken by the learned single judge in issuing positive mandamus, because of the subsequent developments, we are not inclined to interfere with the order of the learned single Judge. Because, firstly, the Writ Petitioner has passed away on 17.6.2003. Secondly, at the time of filing of the writ appeal as well as in the contempt petition, the Appellant raised the only point regarding the date from which SSS Pension is to be sanctioned and that the appellant had decided to sanction Life Time Arrears to the legal heirs of deceased Writ Petitioner - Chinnasamy with effect from 25.6.1985 to 17.6.2003 subject to the outcome of the Writ Appeal in the matter. 15. When this Writ Appeal came up for admission before the First Bench, the learned counsel appearing for Government of India raised only one point regarding the date from which the pension has to be granted i.e., the pension has to be granted only from the date of the Writ Petition and not from the date of application. The order of the First Bench dated 17.1.2006 reads as under: https://hcservices.ecourts.gov.in/hcservices/ "The only point argued by the learned Counsel appearing for the appellant is that considering the lapse of time and peculiar circumstances of the case, pension ought to be granted only from the date of the Writ petition and not from the date of the application. Issue notice to the impleaded respondents only on this issue, returnable on 30.1.2006. Copy of this order be sent along with the notice. Notice to indicate that the Writ Appeal shall be disposed of at the admission stage itself." 16. Since at the time of admission the only question raised was regarding the date from which the SSS pension amount is payable, the question of eligibility of the Writ Petitioner to SSS pension need not be gone into, moe so, when the Appellant had already sanctioned the life time arrears (LTA) to the legal heirs of the Writ Petitioner (yet to be paid to the legal heirs). 17. Drawing our attention to the Appellant's proceedings dated 23.2.1999, learned counsel for the Appellant has submitted that the application of the deceased Writ Petitioner was dated 25.4.1997 and therefore he would have been eligible for Pension only from the date of his application dated 25.4.1997 and not from 25.6.1985. Even though the deceased Writ Petitioner has stated that he filed application requesting for SSS pension on 25.6.1985, excepting his own statement, we do not find any other authenticated material to show that he filed application on 25.6.1985. Recommendation letter of Government of Tamil Nadu dated 30.7.1998 refers to the application of the deceased Writ Petitioner dated 25.4.1997. In such view of the matter, the date of application of the Writ Petitioner has to be taken as 25.4.1997 and not 25.6.1985. The order of learned single Judge directing sanction of pension from 25.6.1985 has to be modified to that extent. 18. Though we differ from the views taken by the learned single Judge in issuing positive mandamus to the Appellant to sanction SSS pension, having regard to the stand taken by the Appellant before the First Bench and having regard to the subsequent developments, this Writ Appeal is disposed of directing the Appellant to pay 'life time arrears' to the legal heirs of late R.Chinnasamy with effect from 25.4.1997 to 17.6.2003. The arrears shall be paid within three months from the date of receipt of copy of the order. However, there is no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar usk https://hcservices.ecourts.gov.in/hcservices/ Copy to: The Under Secretary, Ministry of Home Affairs, Freedom Fighters Division, Government of India, Jaisalmer House, Mansingh Road, New Delhi-110 001. + 1 cc to Mr. M. Devendran, Advocate SR.60899 + 1 cc to Mr. J. Saravanavel, Advocate Sr.60692 W.A.No.3880 of 2002 SGL(CO) EU 30.08.2010. https://hcservices.ecourts.gov.in/hcservices/