IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.12.2008 CORAM THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN Writ Appeal No.2016 of 2003 and W.A.M.P.No.2847 of 2003 The Government of India, rep. by its Secretary, Ministry of Home Affairs, Freedom Fighters Division, New Delhi-3. ... Appellant Vs. 1.T.R.T.Thirumalaivasi 2.The Government of Tamil Nadu rep. by its Secretary, Public (Political Division) Department, Fort St. George, Chennai 600 009. ... Respondents Writ Appeal under Clause 15 of Letters Patent, praying to set aside the Order dated 25.02.2002 made in W.P.No. 16636 of 1999 filed under article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for the records pertaining to the order dated 11.1.99 of the first respondent and to quash the same and consequently directing the 1st respondent to grant pension under Swathantra Sainik Pension Scheme 1980 to the petitioner from 11.3.1982 onwards. For Appellant : Mrs.R.Maheswari Senior Central Govt. Standing Counsel For Respondents : Mr.K.V.Sundararajan (for R1) JUDGEMENT (Judgement of the Court was delivered by D.MURUGESAN, J.) This writ appeal is directed against the order dated 25.02.2002 passed by the learned single Judge directing the Central Government to grant the pension to the first respondent herein under the Swathantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as "the Scheme, 1980) from 11.03.1982 onwards, at the https://hcservices.ecourts.gov.in/hcservices/ instance of the Ministry of Home Affairs, Government of India, represented by its Secretary. 2. The issue raised in this writ appeal is, Whether the first respondent – Mr.T.R.T.Thirumalaivasi, is entitled to the pension under the Scheme, 1980 on the ground that he had suffered minimum imprisonment of 6 months on account of his participation in freedom struggle? 3. The claim of the first respondent for pension was on the basis that he under went imprisonment from 01.11.1942 to 29.04.1943 in Central Jail, Vellore on account of his participation in Quit India Revolutionary Movement. In support of the said claim, he relied upon the free fighters' pension order No.12169, dated 21.09.1983 issued by the Under Secretary to Government, Public (Political Pension IV) Department, Freedom Fighters' Pension Form IV Department, granting freedom fighters' pension under the scheme evolved by the State Government of Tamil Nadu. In addition to the above, he also relied upon the co-prisoner certificates issued by (1) Mr.P.S.K.lakshmipathiraj, Ex. M.L.A., (2)Mrs.Lakshmanan MDV, (3) Mr.Rajaram Naidu, Ex. Minister and (4) Mr.MayandiBharathi. The said certificates issued by the above respective freedom fighters would disclose that the first respondent had suffered imprisonment during the period between 01.11.1942 and 29.04.1943 in Central Jail, Vellore on account of his participation in Quit India Revolutionary Movement. However, the request of the first respondent for payment of pension was rejected by the appellant by order dated 11.01.1999 on the following grounds: (1) The State Government of Tamil Nadu has not duly verified and recommended the case for grant of pension in respect of your (first respondent herein) claimed imprisonment suffering/underground suffering. (2) Your (first respondent in the writ appeal) claimed underground suffering after release from prison should be against warrant or arrest/proclamation order/or award on head as required under the Scheme. (3) You (first respondent in the writ appeal) have stated that after release from jail you were being shadowed by the Special Branch CID and you were compelled to go underground immediately after your release from jail. In this connection it is stated here that even if the CID tried to arrest you, you have not attached and adduced documentary evidence to prove/show the reason of your being wanted by them. If such records of the period are not available, you have not attached the non-availability of Record Certificate duly verified by the State Government as required in the Scheme. https://hcservices.ecourts.gov.in/hcservices/ 4. While the said order was questioned in W.P.No. 16636 of 1999, the learned single Judge had accepted the claim of the first respondent and held that he is entitled to freedom fighters' pension in terms of the Scheme, 1980, as he had produced sufficient evidence to show that he had suffered imprisonment for six months on account of his participation in the freedom struggle. 5. Mrs.R.Maheswari, learned Senior Central Government Standing Counsel, in challenging to the above would submit that when the order of the Central Government was made on the ground that there was no evidence to show that the first respondent had suffered imprisonment for six months on account of his participation in the freedom struggle, the learned single Judge ought not to have re-appreciated the said evidence and come to a different conclusion. She would further submit placing reliance upon the judgements of the Apex Court reported in Mukund Lal Bhandari v. Union of India, 1993 Supp. (3) SCC 2 and Union of India v. Mohan Singh and others, 1996 (1) SCC 351, that when the Scheme itself mentions the documentary evidence which are required to be produced before the Government and the Government after scrutiny of the documents had come to the conclusion that there are no proof, the Court could not scrutinise the documents to find out sufficiency of proof. The learned single Judge, is therefore, had committed error in re-appreciating the evidence. 6. We have heard Mr.K.V.Sundarrajan, learned counsel appearing for the first respondent as well on the above. 7. The objects of the pension Scheme has been well stated by the Apex Court in Gurudial Singh v. Union of India, (2001) 8 SCC 8 in para (6) & (7) and the same are reproduced hereunder:- "6. The Scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. 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 the 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 a foreign country is very cumbersome and expensive. Keeping in mind the object of the Scheme, the authorities concerned are required that in appreciating the Scheme for the benefit of freedom fighters a rational 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. This Court in Mukund Lal Bhandari case, 1993 Supp (3) SCC 2, observed : “The object in making the said relaxation was not to reward or compensate the sacrifices made in https://hcservices.ecourts.gov.in/hcservices/ the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the freedom struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The Scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the Scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependants. The preference in employment, allotment of accommodation and in admission to schools and colleges to their kith and kin etc. are also the other benefits which have been made available to them for quite sometime now.” The Court categorically mentioned that the pension under the Scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not. 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 the Scheme had 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 https://hcservices.ecourts.gov.in/hcservices/ 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 touchstone 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. The Scheme relating to eligibility of pension are as follows:- 2.2 Imprisonment:- A person who had suffered minimum imprisonment of six months (3 months, in case of women, SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidences:- (a) 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 release, facts of the case and reasons for release. (b) In case records of the relevant period are not available, secondary evidences in the form of 2 co-prisoner Certificates (CPC) from freedom fighers who have proven jail suffering of minimum 1 year and who were with the applicant in the 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. M.P./M.L.A., only one certificate in place of the two is required. 2.3. Underground:- A person who on account of his participation in freedom struggle remained underground for more than six months provided he was; A. a proclaimed offender; or B. one on whom an award for arrest was announced; or C. one for whose detention, order was issued but not served. Explanation: Voluntary underground suffering or self- exile suffering for party work under command of the party leaders, are not covered as eligible sufferings for pension under the Central Scheme. The claim of underground suffering is considered subject to furnishing of the following evidence:- https://hcservices.ecourts.gov.in/hcservices/ (a) Documentary evidence by way of Court's/Government's orders proclaiming the applicant as an absconder, announcing an award on his head or for his arrest or ordering his detention. (b) In case records of the relevant period are not available, secondary evidences in the form of a Personal Knowledge Certificate from a prominent freedom fighter who has proven jail suffering of a minim two years and who happened to be from the same administrative unit 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. 9. A person, who had suffered minimum imprisonment of 6 months on account of his participation in freedom struggle is entitled to pension scheme, subject to furnishing 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 release, facts of the case and reasons for release and in case of non-availability of records of the relevant period, he is entitled to secondary evidence in the form of 2 co- prisoner certificates from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in jail. It is the specific stand of the District Magistrate/District Collector that the records relating to the period in question are not available. Hence, the first respondent is entitled to produce secondary evidence. Accordingly, he had produced Co-prisoner Certificates from the following freedom fighters: (1) Mr.P.S.K.Lakshmipathiraj,Ex.M.L.A., (2) Mrs.Lakshmanan MDV, (3) Mr.Rajaram Naidu, Ex. Minister and (4) Mr.Mayandi Bharathi 10. The appellant had not disputed the co-prisoner certificates from freedom fighters, who have suffered imprisonment for more than one year on account of their participation in freedom struggle. It is not question of re-appreciation of evidence, when those certificates have not been disputed by the appellant and there is nothing to indicate in the impugned order that the certificates cannot be relied upon. The appellant had rejected the request of the first respondent for pension under the Scheme, 1980 on three grounds as already extracted above. 11. Insofar as the first ground is concerned, it is observed by the appellant that the State Government has not duly verified and recommended the case for grant of pension in respect of claimed imprisonment suffering/underground suffering. In this context, we may usefully refer the communication of the Deputy Secretary to Government, Government of Tamil Nadu, Public Department, Secretariat, Madras to Deputy Secretary to Government of India, Ministry of Home https://hcservices.ecourts.gov.in/hcservices/ Affairs, Freedom Fighters Division, New Delhi, dated 13.07.2005, wherein it is stated that the first respondent had produced co- prisoner certificate issued by Thiru.P.S.K.Lakshmipathy Raju and on the recommendation of State Advisory Committee, he was sanctioned freedom fighters pension. Therefore, the one of the grounds for rejection of the request made by the first respondent for freedom fighters pension under the Scheme, 1980 that the State Government has not duly verified and recommended the case for grant of pension in respect of the first respondent's claimed imprisonment suffering is factually in correct. 12. As regards the other two grounds are concerned, we are not inclined to consider the request of the first respondent for grant of pension under the Scheme viz. Clause 2.2 of the basic provisions of the Scheme, relating to underground suffering, as we proposed to consider his claim only on the basis of Clause 2.2 of the basic provisions of the Scheme, 1980. As we have found that the reason stated by the appellant for rejection of the request of the first respondent for grant of pension under the Scheme, is factually incorrect, in the wake of the four co-prisoner certificates, which are not even disputed by the appellant, the first respondent is entitled to the pension in terms of Clause 2.2. of the basic provisions of the Scheme, 1980. Therefore, the two judgements relied upon by the learned Senior Central Government Standing Counsel for the appellant have no application to the facts of the present case, as we are not called upon to go into the sufficiency of evidence. Since those four co-prisoner certificates have not been considered by the appellant while passing the impugned order, the question of re-appreciating the evidence would not arise in this case. 13. As we have already discussed supra, the first respondent had applied for grant of pension in terms of Clause 2.2 of the basic provisions of the Scheme, 1980. On account of non availability of records, he had produced secondary evidence in the form of four co- prisoner certificates from freedom fighters who have underwent for more than one year of imprisonment on account of their participation in freedom struggle and the were not discarded by the appellant, as could be seen from the impugned order. The first respondent is therefore, entitled to pension as claimed. 14. For the reasons discussed above, we do not find any infirmity in the order dated 25.02.2002 made in W.P.No.16636 of 1999 and the writ appeal is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kmk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary, Government of India, Ministry of Home Affairs, Freedom Fighters Division, New Delhi-3. 2.The Secretary, Government of Tamil Nadu, Public (Political Division) Department, Secretariat, Fort St. George, Chennai 600 009. 1 cc to Mr.K.V.Sundararajan,Advocate,SR.67692 1 cc to Mrs.R.Maheswari,SR.67618 Writ Appeal No. 2016 OF 2003 NTK(CO) EM/12.12.08 https://hcservices.ecourts.gov.in/hcservices/