HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No.18512 OF 2010 ORDER: This writ petition has been instituted questioning the validity of the proceedings dated 14.07.2010 issued by the respondent, rejecting the claim of the petitioner for sanction of pension under the Swathantrata Sainik Samman Pension Scheme, 1980. The petitioner had claimed Freedom Fighters Pension under the Swathantrata Sainik Samman Pension Scheme, 1980, for his participation in the liberation struggle of the Nizam’s State of Hyderabad between the years 1947 – 1948, by submitting the application in that respect on 13.05.1985. 2. It would be appropriate to first notice the salient features of the Swathantrata Sainik Samman Pension Scheme, 1980, and the purpose behind the subsequent constitution of the Hyderabad Special Screening Committee. 3. The Government of India, during the Silver Jubilee Year of Indian Independence introduced a scheme for grant of pension to freedom fighters and in case, if unfortunately, they have already died, to their eligible dependants, with effect from 15.08.1972. This original scheme has been refined and liberalized thus, brining in “Swathantrata Sainik Samman Pension Scheme, 1980” with effect from 01.08.1980. All those persons who participated in the freedom movement, in some way or the other are not rendered eligible but only few categories of sufferers have been rendered eligible. Those who are rendered eligible for grant of pension under this scheme are: i. Martyrs, who laid down their lives either in action or in detention or subsequent to completion of the capital punishment imposed against them for participation in the freedom struggle; ii. Those who have suffered imprisonment for a minimum period of six months and those who suffered imprisonment of three months in case of women and members belonging to Scheduled Caste or Scheduled Tribe on account of participation in the freedom struggle; iii. Persons, on account of participation in freedom struggle, remained underground for a period of more than six months provided they are proclaimed as offenders, or those for whose arrest a reward was announced or of those against whom detention orders were issued but could not be served; (emphasis is brought out) iv. Those on account of participation in the freedom struggle, were interned in their home district or externed from their home district for a minimum period of six months; v. Persons whose property was confiscated or attached or sold due to participation in the freedom struggle; vi. Those who became permanently incapacitated either during firing that was ordered or Lathi charge ordered; vii. Those who have lost their Government job for participation in the freedom struggle provided they were not reinstated into service before expiry of two years from their initial date of dismissal or removal and they were not in receipt of benefits of pay and allowances for the said period; viii. Such of those, who were awarded punishment of a minimum of ten strokes of caning/flogging/whipping due to participation in the freedom struggle. 4. The eligible persons are required to produce relevant documents from official records or newspapers of the relevant time. The official records could be in the form of imprisonment / detention certificate from the jail authority concerned or the District Magistrate or the State Government indicating the period of sentence awarded, the date of admission, the date of release, the relevant facts of the case and the reasons for the release. In case the relevant records are not available, the secondary evidence in the form of certificates issued by two co- prisoners who have proven jail suffering for a minimum of one year period and who were inmates of the jail along with the applicants, can be produced. However, if a sitting or a former M.P or M.L.A happens to issue a certificate, that was considered as sufficient evidence of the suffering of the claimant. Similarly, secondary evidence in the form of Personal Knowledge Certificates (PKC) from any prominent freedom fighter who has proven jail suffering of a minimum of two years is also considered. Under the Swathantrata Sainik Samman Pension Scheme, the application should be sent in duplicate to the Chief Secretary of the concerned State/Union Territory Administration and copy submitted to the Deputy Secretary to the Government of India, Freedom Fighters Division, Ministry of Home Affairs, New Delhi. The claims would be processed by the Government of India only on receipt of verification and entitlement to pension report from the State Government/Union Territory Administration concerned. 5. From a perusal of the Swathantrata Sainik Samman Pension Scheme, 1980, it becomes clear that the credentials are required to be established by the applicants with reference to either primary or secondary evidence. These requirements have been found to be difficult to be produced by majority of those who participated in the integration of the erstwhile Nizam State of Hyderabad with the rest of the Indian Union. Therefore, the Government of India in the Ministry of Home Affairs through their office Memorandum No.8/48/83-FF(P) dated 05.10.1983 announced the decision that the applications from such participants of the liberation struggle of the erstwhile Nizam State of Hyderabad be screened/scrutinized by a `Special Screening Committee (SSC)’ headed by Sri Govind Bhai Shroff of Aurangabad and comprising of Sri Jagannath Rao Chanderki of Gulbarga District and Sri P. Thirumal Rao of Khammam District as members. The Deputy Secretary in charge of the Freedom Fighters’ Division of the Ministry of Home Affairs has been made the Convenor of this Committee. The meetings of this Committee were required to be held at New Delhi or at such other convenient places as may be decided upon by the Committee. The applications of eligible persons will be initially scrutinized by the Ministry of Home Affairs and then placed before the said committee for their recommendations. 6. The Supreme Court in Mukund Lal Bhandari Vs. Union of India[1], after elaborately considering the matter, issued the following directions:- “[a] The respondents should accept the applications of the petitioners irrespective of the date on which they are made. The applications received hereafter should also be entertained without raising the plea that they are beyond the prescribed date. [b] The respondents should scrutinizes every application and the evidence produced in support of the claim and dispose it of as expeditiously as possible and in any case within three months of the receipt of the application, and the documents proof keeping in view the laudable and sacrosanct object of the Scheme. [c] The pension should be paid to the applicant front the date on which the original application is received whether the application is filed with or without the requisite evidence. The sanction of tile pension would, however, he subject to the requisite proof in support of the claim.” 7. Thereafter, the Supreme Court has again considered the matter in great detail in Duli Chand Vs. Union of India[2], Surja Vs. Union of India[3], Union of India Vs. Ganesh Chandra Dolai[4], Union of India Vs. M.R. Chelliah Thevar[5] and Government of India Vs. K.V. Swaminathan[6]. 8. In Union of India Vs. Kaushalaya Devi[7], the Supreme Court has clearly brought out in which set of cases, the dictum laid by it in Mukund Lal Bhandari’s case should be followed and in which other cases, the sanction of pension should be from a prospective date. 9. It, therefore, emerges from a careful analysis of the legal principles set out by the Supreme Court that, wherever the claim for a freedom fighters pension is based upon the proof of the eligibility criteria set out in Swathantrata Sainik Samman Pension Scheme, the claimant will have to be granted freedom fighters pension from the date he submits the application, though the actual proof may have been furnished subsequent to the date of the application. On the other hand, wherever the freedom fighters pension is ordered to be sanctioned extending the benefit of doubt on the strength of the secondary evidence produced by the claimant, in all such cases the pension will be sanctioned only from the date of the order and not from the date on which the application is submitted. 10. What exactly is the standard of proof that is required to be established by the claimants who seek Freedom Fighters Pension, was dealt with by the Supreme Court, in Gurdial Singh Vs. Union of India[8], as follows: “7. 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 parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of 'beyond reasonable doubt'. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence. 8. We have noticed with disgust that the respondent Authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandari's case. We further feel that after granting the pension to the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour…….” 11. Hence, it is beyond any pale of doubt that the standard which the Ministry of Home Affairs can look for, while dealing with cases for sanction of Freedom Fighters Pension must not be proof beyond doubt like in a criminal case. The attempt that should be made is, not to find lacunae or shortcomings in the evidence produced by the applicants nor was it proper to examine the record under a microscope. The rational approach is to find as to whether the evidence produced by the claimants is a probable one that lends credence to the claim made or not and on that basis the decision should be rested. 12. In view of these principles, let us analyze how far the petitioners claim deserves to be considered. 13. The petitioner has laid claim on two different counts. One, on the count of his participation in two different camps at Jamalamadaka and the other at Moorva Konda. He has also claimed pension on the count that a detention order has been issued by the Government of Nizam’s State of Hyderabad against him for his staging a revolt against the said State at Singotam village of Jatpole Taluk, Mahabubnagar District, and the said detention order could not be served on him. 14. In so far as the first count of his claim is concerned, the Hyderabad Special Screening Committee of Eminent Freedom Fighters at their meeting held on 25th and 26th September, 2008, had cast a doubt. In the opinion of the said Committee, there was a serious contradiction in the claim, in as much as the same person could not have served in two different camps located at two different places, under two different camp leaders, during the same period namely March 1947 to September 1948. The writ petitioner has drawn a detailed explanation as to how the genuine case like that of the petitioner has been mistaken to be otherwise by the said Committee. According to the learned counsel for the petitioner, Jamalamadaka and Moorva Konda Camps are no doubt run at two different places, but however, working under the two different camps is not one such which can be assumed to be an impossibility. Learned counsel for the petitioner would submit that, with reference to the various material on record, that the Committee of Eminent Freedom Fighters have missed to consider this factor with specific reference to the background circumstances prevailing during that time. Be that as it may, learned counsel for the petitioner, in my opinion rightly so, has laid great emphasis upon the second factor which entitles the petitioner to secure pension under the Swathantrata Sainik Samman Pension Scheme, 1980. I therefore, prefer to confine my consideration to the second aspect of the claim made by the petitioner based upon the detention order issued against the petitioner which was not served on him. Therefore, I have avoided to refer to the past litigative history. 15. The Sub-Inspector of Police, Kollapur, Jatpole, Mahabubnagar District, has drawn a report dated 15 Isfandar 1357 Fasli and submitted the same to the Munsif Magistrate at Kollapur, on 16 Isfandar 1357 Fasli at 4.00 P.M. It is stated by the Sub-Inspector of Police that he has received in turn, a report from the Police Patel stating that at about 10.00 A.M at Singotam Village, several people gathered and kept the photographs of Mahatma Gandhi, Pandit Jawaharlal Nehru and Subhash Chandra Bose on a bullock cart and took out a procession lead by K. Raj Gopal Rao, K. Kistaiah, K. Madhava Rao, M. Pulla Reddy, P. Venkateshwar Rao and others by raising slogans such as “Congress Zindabad”, “State Government of Nizam Murdabad”, “We will not pay Land Revenue”, “Save from the slavery of Nizam’s Government” and thus committed breach of peace. It was also reported that, when the Police Patel and Kavalkars jointly requested to stop the procession, they did not stop. Hence the Sub-Inspector sought for issuance of a warrant of arrest to produce the accused persons in the Court. Since breach of peace was an offence under Section 164 of the Penal Code as well as Sections 33 and 37 of the State Criminal Procedure Code, learned Magistrate issued a warrant of arrest on 4 Farwardi 1357 Fasli in Case No.51 of 1357 Fasli. Thus, a warrant against K. Raj Gopal, S/o Thirmala Rao, Age 22 years, R/o Singotam who has been charged with the commissioning of offence of revolt against the State, was issued. It was further indicated in the said warrant of arrest that the offence committed by him is a non- bailable one. 16. It is therefore more than clear that a non-bailable offence has been committed at Singotam Village of Jatpole of Mahabubnagar District, in which the petitioner herein is considered to be the main accused. It was further not in dispute that the said warrant of arrest has not been executed against the petitioner. Is it very difficult, to visualize in what circumstances the warrant of arrest could have been left unexecuted ! It is the Police Patel of Singotam Village who filed a report against the petitioner and others, with the Sub-Inspector of Police, Kollapur. Based thereon, the Sub-Inspector of Police, Kollapur charged the petitioner to have committed an offence under Section 164 of the State Penal Code which is a non-bailable offence. Singotam Village is described to be lying at 6 miles towards West of Nagar Kurnool. The report of the Sub-Inspector of Police, Kollapur, is filed with the Court on 17 Isfandar 1357 Fasli. After taking cognizance of the offence, the warrant of arrest has been issued by the Court of Munsif Magistrate at Jatpole on 4 Farwardi 1357 Fasli. There is no shadow of doubt about this documentary evidence. As was already noticed supra, the Swathantrata Sainik Samman Pension Scheme, 1980, has rendered, amongst various other categories, two categories of political sufferers eligible for grant of pension. One category are those who have suffered imprisonment for a minimum period of six months. (other than those who do not belong to Scheduled Castes or Scheduled Tribes). The second category of persons are those who remained underground for a period of more than six months provided they are proclaimed as offenders or for whose arrest a reward was announced or against whom detention orders were issued but could not be served. It is the later class of cases, in which the petitioner’s case falls. The incident at Singotam Village which brought forth the warrant of arrest undoubtedly proves participation of the petitioner in the freedom struggle. The further fact remains that the warrant of arrest could not be executed against the petitioner after it was issued at 4 Farwardi 1357 Fasli. It is asserted by another Freedom Fighter Sri K. Bhishma Dev that the petitioner has come out of underground on 22.09.1948 after the police action against the Nizam’s State of Hyderabad. It is therefore manifestly clear that between February 1948 to 22nd September, 1948, the petitioner has evaded and avoided the arrest. That could be possible only by his going underground. If he were to be moving about freely in Singotam Village or in any other place of Jatpole Samastan or even at Nagar Kurnool or at Kollapur, during the said period, his arrest pursuant to the warrant taken out against him would have become imminent and materialized. It certainly bears repetition that, the Police Patel at Singotam and the Sub-Inspector of Police at Kollapur were required to ensure that the warrant of arrest is executed against the petitioner. It is therefore reasonable to infer and that too quite probable to have happened, that the petitioner had gone underground to prevent the imminent arrest and his detention. Therefore, in my opinion, the petitioner has made out a strong case to satisfy the norms / conditions specified for sanction of pension under the Swathantrata Sainik Samman Pension Scheme, 1980. As was already noticed supra, the standard of proof and approach in matters of this nature is not one of proof beyond doubt but, a pure probable one. If a warrant of arrest has been drawn against the petitioner for a non-bailable offence, it could have either resulted in arrest and detention or could have been failed to be executed for non- availability of the individual. Till the police action took place in September 1948, history has recorded very vividly and clearly the merciless actions adopted by the Nizam’s State of Hyderabad, towards the Freedom Fighters. One cannot ignore this crucial factor from reckoning. If the police at Kollapur have secured a warrant of arrest against the petitioner, they could not have taken to kindly towards the petitioner thereafter. It is therefore, quite probable that the petitioner has made himself scarce and unavailable for the police to execute the warrant of his arrest. That could be possible only if one moves underground to avoid the dragnet of the police machinery. It is all the more appropriate to bear in mind that apart from the police force, the rest of the Nizam’s State Government’s Administration and also it’s supporters, who are in good numbers, were also actively taking steps to see to it that the revolt against the Nizam’s Rule is somehow suppressed. Those who are opposed to the Nizam’s Rule and his reluctance to accede to the rest of the Indian union, are very few and far in between. They are not in many numbers. Those courageous people have organized their political activity in such a manner that they could hoodwink the Nizam’s State’s Administration and carried on their struggle. 17. The impugned order as well as the detailed counter affidavit filed in this case by the respondent, tries to reason it out that the participation of the petitioner in the two camps at Jamalamadaka and Moorva Konda, at a time prior to the warrant of arrest taken out against him, is sought to be discredited on the ground of lack of probability. The stand of the respondents becomes clearly untenable, for, participation in the camps run by the Freedom Fighters is a part of organized struggle launched against the Nizam’s State Rule. Such camps are not organized only by those against whom detention orders are drawn or for sheltering them. These political camps are organized for asserting the civil and political rights of the citizens. These camps are essentially run to awaken an otherwise dormant society. These camps were run to infuse a sense of fearlessness in the society at large. These camps were run for highlighting the aims and objectives of gaining independence from oppression for those living under the Nizam’s State. Nizam’s State was an independent entity under the British India. While most of the rest of India gained independence on 15.08.1947, those living in the Nizam’s State of Hyderabad had not acquired any such benefit. In that backdrop, the politically active individuals have organized camps at various places in Nizam’s State. Participation in those camps is neither the net result of either detention or orders of detention been drawn against them. This aspect had been completely omitted from consideration by the respondent. Further, warrants of arrest are not drawn out against all those people who have participated in the camps. There was both Substantive Penal Code as well as Procedural Law prevailing in the Nizam’s State of Hyderabad (the Criminal Procedure Code of Nizam’s State had contained the statutory provision for securing anticipatory bail while a similar facility was not available in the rest of India, just to highlight the significance of the procedural safety contemplated by the said code). Therefore, a warrant of arrest could not have been drawn against any individual without complying with those provisions. Unless an offence is alleged to have been committed, no warrant of arrest could have been issued even in those days by a Court even in the Nizam’s State of Hyderabad. 18. Further, the police have alleged that the petitioner has committed a non-bailable offence of staging a revolt against the State. This unimpeachable primary evidence has escaped the due weight it deserved, in the anxiety to discredit it. Therefore, the approach of the respondent in considering the application of the writ petitioner for sanctioning pension is completely erroneous, right from the word go. 19. I have therefore no hesitation to set-aside the impugned order and direct the respondents to bear all relevant facts and circumstances in mind coupled with the legal principles enunciated in this regard set out supra and also weigh the report submitted by the State Government recommending for sanction of pension in favour of the petitioner, properly and with due regard it deserves and then take an appropriate decision in the matter and communicate the same to the petitioner latest by 31.01.2012. 20. In the result, the writ petition is allowed. No costs. _____________________________________ Justice Nooty Ramamohana Rao October, 2011 sp HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO (Pre-delivered Judgment) In WRIT PETITION No.18512 OF 2010 October, 2011 SP HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO (Pre-delivered Judgment) In WRIT PETITION No.18512 OF 2010 October, 2011 SP [1] 1993 SCC Supp (3) 2 [2] 1990 Supp SCC 762 [3] (1991) 4 SCC 366 [4] (1997) 10 SCC 289 [5] C.A.No.7762/96 [6] (1997) 10 SCC 190 [7] (2007) 9 SCC 525 [8] (2001) 8 SCC 8