IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7291 of 2007 Date of Decision: March 03, 2008 Smt. Gurcharan Kaur ...Petitioner Versus The Union of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Karambir Singh, Advocate, for the petitioner. Mr. Rajiv Sharma, Advocate, for respondent Nos. 1 and 2. Ms. Charu Tuli, Sr. DAG, Punjab, for respondent Nos. 3 to 5. M.M. KUMAR, J. This case presents a gloomy picture of our bureaucracy and their courage to fight the Freedom Fighters nay well known and decorated soldier like Shri Surjan Singh. It reveals complete disregard to the scarifies made by Shri Surjan Singh, who was bodyguard of Netaji Subhash Chander Bose, in preference to strict application of the provisions of Swatantrata Sainik Sanman Pension, Scheme, 1972 extending grant of pension to such soldier. Smt. C.W.P. No. 7291 of 2007 Gurcharan Kaur wife of Late Shri Surjan Singh has filed the instant petition under Article 226 of the Constitution for issuance of direction to respondent Nos. 1 and 2 to restore the pension under the Swatantarta Sainik Sanman Pension Scheme, 1972 (for brevity, ‘the Pension Scheme’), in respect of her husband Late Shri Surjan Singh. Her husband Late Shri Surjan Singh was a Prime Minister’s Tamar Pattar Awardee, for having been a member of Indian National Army and bodyguard of Netaji Subhash Chander Bose twice. Brief facts of the case are that there was one Shri Surjan Singh, who was born in the year 1910. He joined military in the year 1927. He was recruited from Lahore (now in Pakistan). After recruitment, he went to Shanghai (China). When in the year 1931 Shaheed Bhagat Singh was hanged by our colonial masters and the freedom struggle movement in the country was at its pinnacle, Shri Surjan Singh left the service in order to serve the country. He joined Ghaddar Party, which was then known as the Indian Youth League of China (Association of Indian Youth in China). Thereafter in the year 1942 he joined Indian National Army (INA) of Netaji Subhash Chander Bose and remained as bodyguard of Netaji Subhash Chander Bose. Shri Surjan Singh dedicated prime of his youth for the freedom struggle of our country. In the year 1962, the Punjab Government recognized meritorious services of this Hero of freedom struggle and sanctioned him Freedom Fighter Pension, vide PPO No. 1572/FF/PB. He continued to receive that pension till his death and afterward it is being received by the petitioner. 2 C.W.P. No. 7291 of 2007 On the 25th year of independence of India, Late Shri Surjan Singh was even awarded and bestowed with the prestigious commendation certificate ‘Tamar Pattar’, by the former Prime Minister Late Smt. Indira Gandhi on 15.8.1972 (P-1). The Government of India also started the Pension Scheme for grant of pension to freedom fighters and with effect from 25.8.1972 pension by the Government of India was also granted to Late Shri Surjan Singh, vide PPO No. 2581/FF/Central, which was in addition to the pension already granted to him by the Punjab Government. However, doubting the genuineness/bonafide of Freedom Fighter status of Late Shri Surjan Singh, the pension granted by the Central Government was stopped in January, 1977. For getting his pension restored, he made numerous representations to the concerned authorities. Even the then Chief Patron Colonel Naranjan Singh Gill, a former Ambassador of India and the then Honorary General Secretary Shri Roshan Lal Seth (Capt. INA), Azad Hind Fauj Association, Amritsar, vide their letter dated 27.12.1990 (P-14), recommended and appealed to the Under Secretary, Ministry of Home Affairs, New Delhi, for restoration of the pension of Shri Surjan Singh. When nothing was done, he was constrained to file a suit for mandatory injunction, bearing Civil Suit No. 191 of 13.3.1996 in the Court of Civil Judge (Junior Division) Amritsar. On 24.12.1996, an ex parte decree in favour of Late Shri Surjan Singh was passed by the learned Civil Judge (Junior Division), Amritsar, holding as under:- “ In view of the evidence lead by the plaintiff consisting of the statement of five witnesses and the law on this point 3 C.W.P. No. 7291 of 2007 referred to above, I am of the considered view that the plaintiff is definitely entitled to the freedom fighter’s pension under the Central Scheme in addition to the similar benefit being obtained by him and the said pension was rightly granted to him by the Central Govt. but has been wrongly/illegally stopped without assigning any reason whatsoever and has not been restored despite of repeated demands and service of Legal Notice. I, therefore, pass ex parte decree in favour of the plaintiff against defendant No. 1 directing deft. No. 1 to restore the pension of the plaintiff from January 1977 and to pay all the arrears from January 1977 upto date with interest @ 18% p.a. with cost. The suit against the defendant No. 2 stands dismissed as having been withdrawn. Decree-sheet be prepared accordingly. File be consigned to the record.” Sh. Surjan Singh had himself appeared as witness (PW-1)in the suit. He had deposed that he joined the Army in 1927 and when Saheed Bhagat Singh was executed in 1931 he was posted in Shinghai (China). In revolt he left the service of the British Government and joined Gaddar Party known as Indian Youth League of China. He named his companion as Chanan Singh of village Dhunda, who was short dead while others namely Santa Singh of village Pipli Bhan was sent to exile. He had further stated that in 1942 he joined Indian National Army and remained posted as body guard of Netaji Subhash Chander Bose twice while one Gurdail Singh was his driver. After dropping of 4 C.W.P. No. 7291 of 2007 atom bomb in the cities of Heroshima and Nagasaki in 1945, the Japanese forces surrendered and he along with his companions was imprisoned by the then British Government. They returned to India in 1947. In addition he deposed about the release of his pension by the Punjab as well as the Central Governments and said that his name figured at Sr. No. 250 in the book of freedom fighters of Punjab. Statement of Sh. Surjan Singh was supported by PW-2-Joginder Kaur wife of Sh. Ajaib Singh who had also been working with Sh. Surjan Singh and was also a freedom fighter. His pension was also stopped who filed a suit which was decreed by Civil Judge (Senior Division) Amritsar when the statement of one Jagir Singh (PW-3) clerk of Treasury Office, Amritsar, was also recorded who deposed regarding the payment of pension by the Punjab Government to Surjan Singh, Pritam Singh s/o Ujjagar Singh , Trilok Singh s/o Dhanna Singh. Likewise, Arjan Singh Gharka(PW-4), Tehsil Taran Taran and Pritam Singh son of Ujjagar Singh of village Malhian had also deposed that they had been serving in the Army along with Sh. Surjan Singh and they were also getting the freedom fighters pension from the Punjab Government with effect from 1.10.1990. Statements of PW-4 and PW-5, Arjan Singh and Pritam Singh respectively clearly shows that Sh. Surjan Singh was also serving in the Army with them. Even after passing of the aforementioned ex parte decree, Shri Surjan Singh was not able to get his pension due to indifferent attitude of respondent Nos. 1 and 2. Therefore, he had to initiate execution proceedings for executing the judgment and decree dated 24.12.1996. While fighting for his pension and dignity, Shri Surjan 5 C.W.P. No. 7291 of 2007 Singh unfortunately expired on 18.2.2000. He survived fighting for freedom of the country but died while fighting legal battle against mightly respondents, and after his death, his legal heirs i.e. his widow Smt. Gurcharan Kaur (petitioner) and three sons, namely, Sarvshri Jasbir Singh, Amarjit Singh and Kulbir Singh, were impleaded as Decree Holder by the Executing Court. During the pendency of the execution proceedings, the concerned authorities with a view to get the ex parte decree set aside, filed an objection petition dated 15.5.2004, under Section 47 read with Section 151 C.P.C., on technical ground taking the stand that under Section 4 of the Pension Act, 1871, the Civil Court had no jurisdiction to try and decide the case. Resultantly, on 13.9.2004, Civil Judge (Senior Division), Amritsar, dismissed the execution petition (P-16). Faced with this situation, the petitioner and her sons sent a legal notice dated 10.3.2005 (P-17). Alongwith the legal notice they had also attached copies of documentary evidence to show and prove that Late Shri Surjan Singh was a Freedom Fighter. The aforementioned legal notice was further supplemented by a complaint dated 7.8.2006 (P-19). At this stage it is pertinent to notice the facts showing the genuineness of the Freedom Fighter status of Late Shri Surjan Singh, the following evidence has been placed on record:- i) He was awarded Tamar Pattar by the former Prime Minister Smt. Indira Gandhi, on 25th Independence Day, on 15.8.1972 (P-1); ii) The former Chief Minister, Punjab, recommended/ordered release of Rs. 1,00,000/- through the Deputy Commissioner, Amritsar, for 6 C.W.P. No. 7291 of 2007 construction of a memorial in the honour of Shri Surjan Singh, at his native village Ballianwala (P-2); iii) A foundation stone for a memorial in his honour as Freedom Fighter, was laid by Shri Jagir Singh, the then MLA of the Constituency (P-3); iv) The book titled ‘Azadi Di Jang’, written by Shri Surjan Singh, was recommended/prescribed and made available for many years by the Punjab School Education Board in the libraries of the High/Higher Secondary Schools (P-4 & P-5); v) Former Education Minister, Punjab Shri Lakhmir Singh Randhawa, highly appreciated with reverence, the aforementioned book, vide his official letter (P-6); vi) Late Shri Surjan Singh was honoured many a times at various functions in District Amritsar (P-7). He was honoured at one such function even by Giani Zail Singh, the then Chief Minister of Punjab; vii) The leading newspaper of the Northern India i.e. ‘The Punjabi Tribune’ carried an article on 29.5.1997, solely dedicated to the contributions of Late Shri Surjan Singh and even in that article, the facts were mentioned that he had remained the body guard of Netaji Subash Chander Bose and that he was passing his days under extreme financial devastation (P-8); viii)Late Shri Surjan Singh was sanctioned the Freedom 7 C.W.P. No. 7291 of 2007 Fighter Pension by the Punjab Government, vide PPO No. 1572/FF/PB in the year 1962, which he received till his death and after that is being received till date by his widow Smt. Gurcharan Kaur (petitioner); ix) The Government of Punjab even granted ‘Swatantrata Sainik Sanman Pension’ to Shri Surjan Singh, vide Department of General Administration-Political-II Branch’s letter/order No. 1(S)INA-4PII-90/8055, dated 1.11.1990, with his name at Sr. No. 243, in the approved list of freedom fighters of District Amritsar (P-9); x) Late Shri Surjan Singh’s name is included in the list of freedom fighters, at Sr. No. 250, in the book titled ‘Azadi De Parwane’, published by the Punjab Government (P-10); xi) Even the ‘Message’ of praising the Punjab Government for publishing such book, from the then Speaker of the ‘Lok Sabha – Shri Gurdial Singh Dhillon, was also published with the aforesaid book (P-11); and xii) The Government of Punjab had even granted ‘Free Travel’ facility to Shri Surjan singh as well as his wife Smt. Gurcharan Kaur (petitioner) (P-12 & P-13). Contesting the claim of the petitioner, reply on behalf of 8 C.W.P. No. 7291 of 2007 respondent Nos. 1 and 2 has been filed taking the stand that the petitioner has failed to produce any documentary evidence as required under the Pension Scheme for grant of pension to eligible freedom fighters. It has been asserted that the husband of the petitioner, Late Shri Surjan Singh was granted pension w.e.f. 1.8.1972 provisionally under the Pension Scheme on the recommendation of the Government of Punjab. In 1977, his case was reviewed and a show cause notice dated 2.7.1977 (R-1) was issued asking him to furnish necessary documentary evidence in support of his claimed suffering. Since, Late Shri Surjan Singh failed to furnish the documentary evidence, the provisional pension was suspended on 24.8.1977. A further show cause notice dated 24.8.1977 (R-2) was issued to Late Shri Surjan Singh, requiring him to reply within 21 days. Representations received from him were considered but the same were not found satisfactory. The provisional pension was, therefore, finally cancelled vide letter dated 27.8.1979 (R-3). It has further been mentioned that members of INA are classified in two categories (i) Military Category – those who joined INA from the then British Indian Army side; and (ii) Civilian Category – those who joined INA movement from the civilian side. The case of Late Shri Surjan Singh falls under the second category. It is further submitted by respondent Nos. 1 and 2 that since no official documentary evidence of jail suffering could be available for second category of persons, therefore, as per the Pension Scheme secondary evidence in such cases i.e. Co-prisoners Certificate to prove imprisonment/detention suffering of minimum six months is required to be produced by a claimant. It has been submitted that Late 9 C.W.P. No. 7291 of 2007 Shri Surjan Singh furnished certificates from Sarvshri Thakar Singh and Banta Singh, who certified that Shri Surjan Singh had remained in the Training Camp Shanghai from 10.4.1944 to 18.9.1945, however, they had not indicated that either they themselves or late Shri Surjan Singh had suffered any imprisonment. These certificates were, therefore, not considered as Co-prisoner’s Certificate. The factum of filing of civil suit, passing of ex parte judgment and decree and subsequently dismissal of execution petition by the Civil Judge (Senior Division) Amritsar, has been admitted. In para No. 2 of the reply it has been mentioned that pension to freedom fighters is regulated under the Swatantrata Sainik Samman Pension Scheme, 1980, which is a document based scheme. It is claimed that under the Scheme, a person is eligible for Swatantrata Sainik Samman Pension if he had undergone at least one of the sufferings prescribed in the Scheme (imprisonment/detention against an executive order/underground sufferings/externment/interment for minimum six month etc.) on account of his participation in the freedom struggle. The respondents have also pleaded that participation in the INA and in the Indian Independence League is also treated as participation in the National Liberation movement. Under the Scheme, a person claiming pension on the grounds of imprisonment/detention suffering can be considered on production of the following evidence:- “(a) Primary evidence:- Imprisonment/detention certificate from the concerned jail authority, District Magistrate or the State Government indicating the period of sentence awarded, date of admission, date of 10 C.W.P. No. 7291 of 2007 release, facts of the case and reasons for release. (b) Secondary evidence:- In case official records of the relevant period are not available, secondary evidence in the form of 2 co-prisoner certificates (CPC) from central freedom fighter pensioners who have proven jail suffering of minimum 1 year and who were with the applicant in the same jail 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. In case the certifier happens to be a sitting or Ex-MP/MLA, only one certificate in place of the two is required. In the case of persons belonging to INA category, only one CPC is required.” After hearing learned counsel for the parties and perusing the paper book with their able assistance and the judgment cited at bar, we are of the view that the bureaucrats dealing with the pension cases of well known freedom fighters like the petitioner display complete insensitiveness to the sacrifices made by Sh. Surjan Singh. There is overwhelming evidence on record which, in fact, allay any doubt in the mind of any man that late Sh. Surjan Singh was a freedom fighter. Before the Civil Court, he had stated in the year 1996 that he was body guard of Netaji Subhash Chander Bose twice when Gurdial Singh was his driver. 11 C.W.P. No. 7291 of 2007 Even Gurdial Singh look to have suffered at the hands of this bureaucratic attitude which has been highlighted by Hon'ble the Supreme court in the case titled as Gurdial Singh v. Union of India AIR (2001) SC 3883 . Like the petitioner, Gurdial Singh has also stated that he joined Indian National Army in September, 1942 and his statement was doubted that Indian National Army headed by Netaji came in existence only in July/August, 1943 when civilians were also admitted to it. A large number of other discrepancies listed in the judgment in the case of Gurdial Singh(Supra) were also pointed out. This approach of the respondents was disapproved with a rebuff in paras 7, 8 and 9 by their Lordships, which reads as under:- “ 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 12 C.W.P. No. 7291 of 2007 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 13 C.W.P. No. 7291 of 2007 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. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in CWP No.3790 of 1994 entitled Mohan Singh V. Union of India decided on 1-6-1995 and CWP 14442 of 1995 decided on 11-12-1995. 9. We are satisfied that the order of the respondent Authorities impugned before the High Court (Annexure P-14) dated 1.11.2000 is liable to be set aside and the appellant entitled to the grant of relief of pension. However, keeping in view the lapse of time and peculiar circumstances of the case, we are not inclined to grant him the pension with effect from 12.3.1973 as claimed and feel that the ends of justice would be met if the appellant is granted pension with effect from March, 1996 when he was forced to file Writ Petition No. 12350 of 1996(emphasis added) In the present case, Sh. Surjan Singh is Tamar Pattar awardee by the former Prime Minister Smt. Indira Gandhi. On 25th Independence Day, 15.8.1972 the presentation was made to him(P-1). The Tamar Pattar 14 C.W.P. No. 7291 of 2007 was also shown to us in the Court. A memorial in the honour of Sh. Surjan Singh at his native village Balianwala has been constructed and the grant has been given by the Punjab Government. His name figures in the book titled as “Azadi Di Jung” which has remained a prescribed course book for many years by the Punjab School Education Board in the libraries of the High/Higher Secondary Schools (P-4 and P-5). There are various articles devoted to the life of the great freedom fighter like Article dated 29.5.1997 published in the Punjabi daily 'Punjabi Tribune' (P-8). The Punjab Government released pension to him in the year 1962 which has been received till his death. The Punjab Government also granted Swatantrata Sainik Sanman Pension to him. The aforementioned features and evidence should have been regarded as sufficient for raising a presumption in favour of the petitioner that in all probabilities he must have remained a freedom fighter. This insensitivity and the bureaucratic approach adopted by the respondents has resulted into harassment and disturbance to this well known freedom fighter who after fighting for the freedom of the country, has to fight to retrieve his honour by fighting in courts in 1996. He filed civil suit No. 191 dated 13.3.1996 which was decided ex parte on 24.12.1996 and the decree passed by the Civil Court was successfully defeated by the respondents by placing reliance on Section 4 of the Pension Act, 1871 (P-16) at the stage of execution. It was during these proceedings that Sh. Surjan Singh breathed his last on 18.2.2000. Even otherwise, we find the petitioner would be covered by the Pension Scheme. Under the Scheme a person claiming pension on the ground of imprisonment/detention and suffering can be granted 15 C.W.P. No. 7291 of 2007 pension if he produced either primary evidence of detention/imprisonment certificate or secondary evidence. The provisions of Pension Scheme concerning secondary evidence reads as under:- (b) Secondary evidence:- In case official records of the relevant period are not available, secondary evidence in the form of 2 co-prisoner certificates (CPC) from central freedom fighter pensioners who have proven jail suffering of minimum 1 year and who were with the applicant in the same jail 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. In case the certifier happens to be a sitting or Ex-MP/MLA, only one certificate in place of the two is required. In the case of persons belonging to INA category, only one CPC is required.” From the statements made by two witnesses before the Civil court, namely, Arjan Singh(PW-4) and Pritam singh son of Ujjagar Singh (PW-5) would have been considered sufficient secondary evidence of the fact that Sh. Surjan Singh has served with them in the Army specially when the Punjab Government has not only recommended the case of Sh. Surjan Singh, but also granted him pension. Therefore, the statement of 16 C.W.P. No. 7291 of 2007 Sh. Arjan Singh on solemn affirmation that he knew Sh. Surjan Singh who remained with him in Shinghai(China). He was soldier of Indian National Army and he was regarded as volunteer in 1942. It was after Sh. Surjan Singh's recruitment that the witness Arjan Singh was recruited in the Army. Likewise, Pritam Singh (PW-5) has stated that witness remained in Indian National Army from 1942 to 1945 and Sh. Surjan Singh remained with him in Shanghai Jail. The