IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.237 of 2008 Date of Decision: 8.12.2008 State of Punjab and others Appellants Versus Muktiar Singh and another Respondents CORAM:- HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH Present: Ms.Madhu Dayal, Additional Advocate General, Punjab for the appellant None for the respondents ….. T.S.Thakur, C.J. (Oral) C.M. No.844 of 2008 No one appears for respondent No.1 despite service. Respondent No.2 is only a proforma respondent. In the circumstances and keeping in view the fact that the contesting respondent has not chosen to oppose the application for condonation of delay, we condone the delay in this appeal and allow C.M. No.844 of 2008. L.P.A. No.237 of 2008 This appeal arises out of an order dated 11.4.2008 passed by a Single Bench of this Court whereby WP No.13076 of 2002 filed by respondent No.1 for payment of pension under Swatantra Sainik Sanman Pension Scheme has been allowed with a direction to the respondent- L.P.A. No.237 of 2008 2 appellant herein to pay to the petitioner-respondent No.1 in this appeal arrears of the pension under the said Scheme with interest @ 9% per annum from the date the same was due till date of its payment. The controversy arises in the following circumstances. Respondent Mukhtiar Singh claimed to have participated in Praja Mandal Movement during the freedom struggle of the country and suffered imprisonment for a period of three months during October 1942 in the jail at Faridkot. The petitioner also claimed to have remained imprisoned for a period of nine months in the Ferozepur jail along with Kheira Singh of village Mehana and Banta Singh of village Kaliyan. His claim for payment of pension under Swatantra Sainik Sanman Pension Scheme based on the above having been turned down by the government, the petitioner filed Civil Suit No.495 of 1993 in the Court of Civil Judge Junior Division, Bathinda. The said suit was contested by the Union of India as also by the State of Punjab who filed separate written statements to the same giving rise to the following six issues:- 1. Whether the plaintiff is entitled to pension under the scheme “Central Govt. Swatantarta Sainik Sanman Pension Scheme 1980” OPP. 2. Whether the suit is not maintainable being pre-mature? OPP 3. Whether the suit is liable to be dismissed for service of notice under S.80 CPC? OPD 4. Whether this court has got no jurisdiction to try this suit? OPD L.P.A. No.237 of 2008 3 5. Whether the suit is barred by limitation? OPD 6. Relief.” In support of his case, the plaintiff –respondent herein stepped into the witness box, while defendant No.2 examined Shri Rajinder Kumar, Senior Assistant, D.C. Office, Bathinda as DW1. Defendant No.2 Union of India examined Shri Nand Lal, Assistant Grade-II as DW2. Appreciation of the evidence so adduced by the parties, led the Court to answer issue No.1 in favour of the plaintiff-respondent to hold that the plaintiff-respondent herein was entitled to claim the pension under the Scheme mentioned above. Similarly, issue No.2 was also answered in favour of the plaintiff-respondent and the suit filed by the plaintiff held maintainable. While dealing with issue No.3, the trial Court recorded a finding that both the defendants have been served with notice under Section 80 CPC. Issue No.4 regarding jurisdiction of Court to try the Suit was also answered in favour of the plaintiff and against the defendants and so was issue No.5 regarding limitation. In conclusion, the trial Court of Civil Judge, Junior Division, Bathinda observed:- “In view of my findings on the above issues, I hold that the application of the plaintiff was within time and he is entitled to freedom fighter’s pension under the scheme as he was found eligible for the pension and his case was recommended by the Deputy Commissioner, Bathinda on 24.10.1991. Since the pension is payable by defendant No.1 i.e. Union of India, the State of Punjab defendant No.2 is directed to transmit the L.P.A. No.237 of 2008 4 pension case of the plaintiff to the Union of India within one month from today and the Union of India should scrutinize the claim of the plaintiff and dispose it off as expeditiously as possible and in any case within 3 months of the receipt of pension case from the state of Punjab. If the Union of India finds the pension case of the plaintiff in order, then he should be paid the pension from the date of his original application dated 25.5.1985. Suit of the plaintiff is decreed in the manner stated above, with costs. Decree sheet be prepared. File is consigned.” (emphasis supplied). Since the defendants -judgment debtors did not, despite the findings recorded by the Court, grant the requisite relief in his favour, the plaintiff-respondent was left with no option but to file execution proceedings for execution of the decree passed in his favour. The said proceedings were dismissed by the executing Court who was of the view that the decree passed in favour of the plaintiff-respondent granted relief subject to “his being found eligible” for grant of pension by the Union of India and that since Union of India had not found him eligible, there was nothing which the plaintiff – decree holder could claim under the said decree. An appeal filed against the said order failed and so did a revision before this Court. The petitioner- respondent then filed WP No.13076 of 2002, in which he once again sought to assert his claim for payment of pension under the Scheme mentioned above. Ranjit Singh, J, before whom the said petition came up for hearing, took the view that the petitioner had made out a case for grant of pension in terms of the Scheme and accordingly directed the respondents to release the L.P.A. No.237 of 2008 5 arrears of pension in his favour with interest @ 9% per annum from the date the same was due till date of its actual payment. The Court was of the opinion that the material placed by the petitioner-respondent on record, was sufficient to establish that he had remained imprisoned in connection with the freedom struggle for the period prescribed thereby entitling him to claim pension and that the mere absence or non-availability of the record of under- trial prisoner with the jail authorities was not sufficient to disentitle the petitioner-respondent to the said benefit. Relying upon the decisions of the Supreme Court in Mukund Lal Bhandari and others v. Union of India and others, JT 1993 (3) SC 342 and Gurdial Singh v. Union of India and others, JT 2001(8) SC 165, the Court held that the appellants had taken a hyper- technical view of the matter while rejecting the claim made by the petitioner- respondent even when he had succeeded in a fully contested Civil Suit filed by him. The Single Judge observed:- “The respondents have relied upon hyper-technical grounds in rejecting the claim and have somehow tried to find reasons how the relief can be denied to the petitioner. The fate of the petitioner can well be imagined. He contested a full fledged civil suit where he succeeded. He remained still unsuccessful on account of addition of superfluous words in the order, full advantage of which was taken by Union of India to deny the decree, a fortune to the petitioner-freedom fighter, which is nothing but a meager sum of Rs.200/- per month. It is unfortunate to notice this state of affair. The petitioner happens to be present in person before this Court. I have noticed his L.P.A. No.237 of 2008 6 plight. He has rightly expressed his anguish on the delay in disposing his claim and about denial of this pension to him. He is justified in making a grievance that pension should not come to him when he is no more in this world. I have taken up his case for hearing, when he is seen pleading for decision. An old infirm man still has a spirit left in him. To see him beg for decision and not for pension was rather disgusting to notice. He certainly would deserve better treatment.” (emphasis supplied). The present appeal assails correctness of the above decision as noticed earlier. We have heard Ms.Madhu Dayal, counsel appearing for the appellant and perused the record. The respondent has not appeared despite service. In response to a query from the Court Learned counsel for the appellant submitted that although respondent No.1 was nearly 90 years old he is according to his instructions alive though in poor health to receive the benefits flowing from the order passed in his favour. She strenuously argued that this Court ought to modify the impugned order to the extent of making the pension payable with effect from the date of the order passed in favour of the respondent and not from the date he made the application for the grant of the said benefit. In support of that submission, Ms. Dayal placed reliance upon the decision of the Supreme Court in Union of India and another v. Kaushalaya Devi, 2007(2) RSJ 557 and Union of India and others v. Kashiswar Jana, AIR 2008 Supreme Court 1987. She argued that since the grant of pension in the present case was based entirely on circumstantial evidence, the ratio of the decisions, referred to above, was fully applicable. L.P.A. No.237 of 2008 7 There was, according to Ms.Dayal, no conclusive or direct evidence establishing the appellant’s claim for payment of pension by reference to the imprisonment he is alleged to have suffered in connection with the freedom struggle. In Kaushalaya Devi’s case (supra), the short question that fell for consideration before their Lordships was, whether a claim for payment of pension under the Swatantra Sainik Sanman Pension Scheme could be granted from the date of the application or from the date of the passing of the order holding the applicant entitled to the same. Relying upon an earlier decision rendered by their Lordships in Government of India v. K.V.Swaminathan, 1997 (10) SCC 190, the Court held that in cases where grant of benefit was on the basis of secondary evidence and not on the basis of jail certificate produced by the claimant, the proper course would be to award pension from the date of the order passed by the Court and not from the date of the making of the application. That was also, it appears, a case where the claimant was held entitled to pension on the basis of the statement of some other prisoner who had suffered incarceration in connection with the freedom struggle. The Court observed:- “4. It has been held by this Court in Government of India vs. K.V. Swaminathan, 1997 (10) SCC 190, that where the claim is allowed on the basis of benefit of doubt, the pension should be granted not from the date of the application but from the date of the order. 5. In the present case, we have perused the record and found that it is stated therein that the claim was allowed on the basis L.P.A. No.237 of 2008 8 of secondary nature of evidence. In other words, the claim was not allowed on the basis of jail certificate produced by the claimant but on the basis of oral statement of some other detenue. Hence, we are of the opinion that the pension should be granted from the date of the order and not from the date of the application.” To the same effect is the decision in Kashiswar Jana’s case (supra), in which also, the Supreme Court has relying upon Kaushalaya Devi’s decision and that rendered in K.V.Swaminathan’s case, allowed the appeal filed by the Union of India and set aside the order passed by the High Court directing payment of pension with the modification that the pension shall be paid from the date of order granting the pension and not from the date of the application. It is not in dispute that in the instant case the petitioner – respondent herein has been held entitled to payment of pension under the Scheme in question, on the basis of secondary evidence in the form of certificates issued by his co-prisoners. There is admittedly, no certificate from jail concerned nor any direct evidence to show that the petitioner was indeed imprisoned for the period alleged by him in either Faridkot or Ferozepur jails. The claim to a large extent is based on the certificates given by the co-prisoners of the petitioner-respondent in this appeal. On facts, there is considerable similarity between the case in hand and those decided by the Supreme Court referred to above. The question, however, is whether we ought to direct payment of pension with effect from the date of the order in the writ petition or with effect from the date of the order passed in the L.P.A. No.237 of 2008 9 Civil Suit filed by the respondent. In our view the rationale behind the direction issued by their Lordships of the Supreme Court is that where the claim is disputed and eventually granted on the basis of an adjudication by the Court, the grant of benefit could be from the date of the order of adjudication in cases where there is no direct evidence to support the claim and the adjudication proceeds on the basis of only secondary evidence. If that logic was to be applied to the facts and circumstances of the present case, we would be justified in directing the payment of the pension to the respondent with effect from the date the civil Court first held him entitled to the benefit of the Scheme in the Civil Suit, which was filed and eventually decreed in his favour despite a contest from the defendant –appellant herein. It is true that the executing Court and even the appellate Court in appeal against the order passed in execution proceedings had taken the view that the decree passed in favour of the respondent was conditional in the sense that the amount of pension was to be paid to him subject to his being found eligible for the same, yet we have no hesitation in holding that the Civil Court had, upon proper appreciation of the material before it, recorded a clear finding to the effect that the plaintiff-respondent herein was entitled to the benefit of the Scheme. The passage extracted by us in the earlier part of this order from the decision rendered by the Civil Court clearly holds the plaintiff entitled to the benefit of the Scheme. That being so, the executing Court may have understood the said decision as giving a direction to the government to consider the matter afresh, yet the decision did go into question of entitlement and record a finding in favour of the plaintiff. Suffice it to say that since the Scheme is a beneficial in nature and recognizes the services L.P.A. No.237 of 2008 10 rendered by the freedom fighters more than extending any real monetary benefit to them, we see no reason why the benefit should not be made due and payable with effect from the date a competent civil Court had determined the entitlement of the plaintiff-respondent. So viewed, we are of the opinion that the benefit of pension, which is at any rate not a very fabulous amount, should commence in the present case, not from the date of the order passed by the learned Single Judge, as argued by Ms.Madhu Dayal but from the date the Civil Court delivered its judgment in Civil Suit filed by the plaintiff- respondent. To that extent, the order passed by the learned Single Judge may require modification. There is, however, nothing that needs to be altered in the judgment insofar as the learned Single Judge has found the respondent entitled to the grant of the benefit on the basis of the material that was placed on record before him. We accordingly allow this appeal but only in part and to the extent that the benefit of pension payable under the Swatantra Sainik Sanman Pension Scheme shall enure to the petitioner –respondent herein with effect from 29.3.1996. Pension as revised from time to time shall be paid to the respondent with effect from the said date till actual payment, with interest @ 9% per annum, awarded by the learned Single Judge. The needful shall be done by the respondent expeditiously but not later than two months from today. No costs. (T.S.THAKUR) CHIEF JUSTICE 8.12.2008 (JASBIR SINGH) gk JUDGE L.P.A. No.237 of 2008 11