...

l\IUKUND LAL BHANDARI AND ORS.

UNION OF INDIA AND ORS.

[P.8. SA \VANT A!)ID G.N. RAY, JJ.]

MAY 14, 1993

Freedom Fighters Pension Scheme .1972-Swamamra Sainik Samman Pension Sclre111e-Delay in applica1ion, anti retrospectil'ity in pamem of pension-Held, object being to assist and l1011011rfreedo111figluers, delay wo11/cl

1101 affect e111i1/e111em-Pensio11 payable .fiwn tire date of application.

The petitioners (late) freedom fighters participated in the Ar)a Samaj Movement in the late 1930 s, in the erstwhile Nizam State of' Hyderabad.

The Freedo~ Fighters Pension Scheme 1972, wlten it was framed, provided for payment of pension to freedom fighters who had suffered a D minimum imprisonment of six months and whose gross income did not exceed Rs. 5,000. From August 1980, the Scheme was extended to all freedom fighters irrespective of their income and as a token of honour (Samman) to them. In 1985, it was extended to those who participated in the Arya Samaj Movement of' I 936-39 which took place in the forme.r Hyderabad State.

In the writ petition before this Court it was contended for the Union of India thatthe petitioners had not produced the required proof to demonstrate eligibilit)•; that they had filed their applications after the prescribed date; and that, in an)' event, they would be entitled to the pension only from the date the)' produced the required documenr)· proof and not an earlier date.

Allowing the petition, this Court

HELD : 1. What'loever the date on which the claimants make the applications, even where it is after the prescribed date, the benefit should he made available to them. The date prescribed in any past or future notice G inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid time limit. (896-F)

Those. eligible for the pension may be scattered, or may hal'e no knowledge of the prescribed date. Moreo\•er, if the scheme has been intro-

891 H

St7PRE\1E COl.'.RT REPORTS

[1993] 3 S.C.R .. ~

dul:ed with the genuine desire to assist and honour these who had gi\'cn the hest part of" their life for the l:ountr_y. it ill-beha\'es the government to raise picas of limitation against sud1 daims.

2. The date on which the required p1·1mf is furnished should make no ditl"erenl:c to the entitlement of the benefit under the Sl:heme. It is unrealistic H and demeaning to the object of the scheme, to fix a rigid time limit for proof of entitlement. Once the application is made, e\'cn if it is unaccompanied by the requisite eligibility data, the date on which it is made should he accepted as the datcofthe prefcrmentofthedaim whate\'erthedateon whk-h the proof of eligibility is furnished. (897-C)

3. The pension will he payable from the date on which the original application is rccei\'ed whether the application is recci\'ed whether the application is filed with or without the rel1uisitc C\'idence. The sanction of the pension would, howc\er, be subject to the requisite proof in support of the claim. (898-H)

There is no doubt that if the object of the scheme is to benefit the freedom fighters, theoretical!~·, they should be entitled to the benefit from the date the scheme came into existence. Rut the spirit of the.scheme being both to assist and honour the need~· and acknowledge the \'aluablc sacrifices made, it would be contra1y to its spirit to con\'ert it into some kind of a programe of E compensation. (897-F)

Moreover, since the benefit of the scheme is a\'ailable irrespective of the date on which the application is made, it would not be ad, isable to extend the benefit retlospecti\'ely. (898-C)

4. Applications and e\idence produced in supportol'the claim should be scrutinised and disposed of, in any case~ within three months of their receipt.

(898-G)

Duli Chand". V nion o.f India. W .P. No. 1190 of 1989 and Surja and Ors. <; ''Union of India & Anr. W.P.'No. 75 of1991, referred to.

ORIGINAL JURISDICTION : Writ Pentilion (c) No. 153 of I 992.

H (\Jnder Article 32 of the Constitution of India)

Mahabir Singh, R.K. Khanna and R.P. Singh (NP) for the Petitioners.

D.P. Gupta, Solicitor General, Ms. A. Subshini (NP) and Ms. Niranjana Singh for the Respondents.

The Judgment of the Court was delivered by

SA WANT, J. This is a petition by some freedom fighters and defendants of other freedom fighters claiming pension under the Freedom Fighters Pension Scheme, 1972. The Scheme was introduced by the Government of India on the occasion of the 25th Anniversary of the Independence. It commenced on 15th August, 1972 and provided for the grant of pension to freedom fighters and if they C were not alive to their families and also to the families of the martyrs. The minimum pension sanctioned to the freedom fighters was Rs. 200 per month and for their families, it varied from Rs. 100 to Rs. 200 in accordance with the size and the number of eligible dependents in the family. Till 31st July, 1980 the pension was admissible only to those whose gross annual income did not exceed Rs. 5000.

From lst August 1980, the benefit of the Scheme was extended to all freedom D fighters irrespective of their income and as a token of honour (Samman) to them.

From that date, the maximum quantum of pensio~ was also increased from Rs. 200 ,

to Rs. 300 for freedom fighters and the minimum was enhanced from Rs. 100 to Rs. 200 to the widows of the late freedom fighters with addition of Rs. 50 per month for each unmarried daughter with a maximum limit of Rs.300 per month. The eligibility to get the Samman pension, as it came to be called from 1st August, E 1980, depended upon the freedom fighter having suffered a minimum imprisonment of six months. However. ir thl' frl'e_dom fighter was a woman or belonged to the Scheduled Caste or Scheduled Tribe community, the minimum period ofactual imprisonment, was reduced to three months. While explaining the meaning of the actual imprisonment the Scheme states; (a) the detention under the orders of the competent authority will be considered as imprisonment; (b) the period of normal remission upto one month would be treated as part of the actual imprisonment; (c) in case the trial ended in conviction, the under-trial period would be counted towards actual imprisonment suffered; (d) the broken period of imprisonment would be totaled up for computing the qualifying period; (e) the person remaining underground for more than six months, provided he was a proclaimed offender or one for whom an award for arrest or for his head was announced or one for whose detention, order was issued but not served and (f) the person interned in his home

or external from his district for six months or more, a person whose property was : confiscated or attached or sold due to participation in the freedom struggle, a person who became permanently incapacitated on account of violence inflicted on H

A . him during such struggle, a person who lost his Govt. job Central or State and thus the means of Ii velihood for participation in such struggle, were also made eligible for the pension.

In September 1985, on the recommendations of the non-official advisory committee at the Central level the Government renamed the Pension Scheme, and B also enhanced the quantum of the pension by its Circularnetter of 30th September,

1985. It informed all the State Governments and Union Territory Adininistration that the Scheme was renamed as Swatantra Sanik Samman Pension Scheme. The circular further informed that the Scheme was extended with retrospective effect from 1980 to those who participated in the Arya Samaj Movement of 1936-39 c which took place in the former Hyderabad State. The quantum of monthly pension admissible to the freedom fighters and their widows was raised to Rs. 500 with effect from 1st June, 1985 and the unmarried daughters of the widows who had been sanctioned family pension became entitled to additional pension of Rs. 50/

- per month.

2. In Writ Petitii:Jn No. 1190 of 1189 - Duli Chand & Ors. v. Union of India & Ors. ->where the claim for pension was made by the petitioners, the Union of • India did not file a counter. On the other hand, a statement was made on their behalf that do documents being produced in support of the claim, there would be no objection to granting the pension. It does not further appear that any contention was raised on behalf of the Government that the pension should not be made .

E payable with retrospective effect. The facts, on the other hand, reveal that one of the petitioners in that writ petition was granted pension by the Government with effect .from I st August, 1980 during the pendency of the petition. It is on these facts, that this Court by its order of 16th July, 1990 made in that petition, directed that 41 of the petitioners should be granted pension with effect from !st August,

1980 although they had made their applications beyond the date which was prescribed for making application.

Writ Petition No. 75 of 1991 - Surja & Ors. v. Union of India.& Anr. - was filed by some of the participants in the Arya Samaj Movement in the late 1930s in the erstwhile Nizam State of Hyderabad. The participants in question were G sentenced to various terms of imprisonment exceeding six months. The Union of India filed a counter-affidavit and pointed out that the earlier petition, viz., W.P.

No. 1190of1989 (Supra) was decided ex-parte and by accepting all the allegations madeby the petitioners therein. The Court, therefore, felt that it would not be appropriate to dispose of the petition by adopting the order made by it in the earlier petition. One of the questions which fell for consideration was whether the H petitioners had suffered the minimum sentence of six months' imprisonment on

U.L BllANDARh !J)'; JON OF INDIA [SA WANT. J)° ,--895

-.-.... _ account of their participation in the said Moveme~~ Which-was:thequalifyiilg A p.."Tiod. of imprisonment under the Scheme .. It wasfou.nd from the material

pducd by most of the petitioners that they were sentenced~ imprisonment for terms exceeding six months. f-lowever9 while the)r \\:.ere urfergoing their sen tences. a general amnesty was declared by the then N~On his birthday, and without their asking for the same. their sentences were redUCed and they \\'ere set free. In vie~ of the fact that the petitioners" sentences were reduced wilhorit their 8 praying for the same, it was held that the petitioners had satisfied the. condition under the Schen; e, yiz .• that they had been imprisoned for six months: While

~~ -- interpreting the qualirying condition of six months" imprisonment. it was in terms held th.ii ira priso-er was setened to imprisonment for si~ months or more and if the period of actu~ imprisonment was reduce not on account of his clming any remission, he should be deemed to have fulfilled the qualifying period of C iinprisonmentforsix monts. In the ciicutances~ theclai_~?fthe petitionersv•as accepted and they were directed to be paid pension with effect from lst August,

1980. Here again, it may be pointed out. it was not contended on behalf of the Union of India that the pension should not be made payable with retrospective effect and hence there \vas no occasion to consider whether notwithstanding the D delay in making tJ:!e application and whatever the date on which the appliant made the claim. he should be entitled to the same with effect from the retrospective date as if he had made his application in time. viz .• before the date prescribed for making such appli<; ation.

3. Coming now to the present petition. the petitioners/the late freedom E fighters are persons who had participted}n the Arya Samaj Movement in the late , 1930s in the erstwhileNizamState of Hyderabad. In view of the amendment made to the Scheme by the Government Circularnetter dated 30th September. 1985. the peu"tioners would undisputedly be entitled to the benefi_t of the Scheme provided. of course, they produced the relevant material in suppon of their claim. This is not. disputed on behalf of the Union of India. However, three contentions have been F raised. Firstly. the petitioners have not produced the required proof in suppori of their claim that they had in fact participated in the movement and were sentenced to imprisonment for six months or more. Second I y , they had filed their applications

beforttiie~ Government after the date prescribed for filing the application. And thirdly, in any case, if it is held tha!Jhey satisfied the qualifying conditions under. G the Scheme. they would be entitled to the pension on! y from the date they produced the requird documentary proof in suppon of their claim and not from any earlier date.

4. As regards the sufficiency of ihe proof. the Scheme itself mentions the II

•.

A documents which are required to be produced before the Gmernment. It is not possible for this Court to scrutinize the documents which according to the petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly.

As regards the contention that the petitioners had filed their applications after the date prescribed in that behalf, we are afraid that the Government stand is not justifiable. It is common knowledge that those who particiI?ated in the freedom struggle either at the national level or in the erstwhile Nizam State. are scattered all over the country and most of them may even be inhabiting the remotest parts of the rural areas. What is more, almost all of them must have now grown pretty old, if they are alive. Where th.e freedom fighters are not alive and their widows and the unmarried daughters have to prefer claims, the position may still be worse with regard to their knowledge of the prescribed date. What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it ill-behoves the Government to. raise pleas of limitation against such claims. In fact, the Government, if it possible for them to do so, should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same. That wou Id be the true spirit of working out such Schemes. The Schemes has rightly been renamed in 1985 as the Swatantra Sainik Samman Pension Scheme to accord with its object. We, therefore, cannot countenance the plea of the Government that the claimants would only be entitled to the benefit of the Scheme if they made applications before a particular date notwithstanding that in fact they had suffered the imprisonment and made the sacrifices and were thus otherwise qualified to receive the benefit. We are, therefore, of the view that whatever the dat~ on which the claimants make the applications, the benefit should be made available to them. The date prescribed in any past or future notice inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid time-limit.

Coming now to the last contention advanced on behalf of the Government, viz., that the benefit of the Scheme should be extended only from the date the G claimant produces the required proof of his eligibility to the pension, we are of the view that this contention can be accepted only partially. There have been cases, as

/ in the present case, where some of the claimants had made their applications but either without the necessary documentary proof or ith insufficient proof. It is unreasonable to expect that the freedom fighters and their dependents, would be H readily in possession of the required documents. In the very nature of things; such

documents ha\'e to be secured either from the jail records or from persons who have been named in the Scheme to certify the eligibility. Thus the claimants have to rely upon third parties. The records are also quite old. They are bound to :.ake their own time to be available. It is, therefore, unrealistic to expect that the . claimants would be in a position to produce documents within a fixed time limit.

What is necessary in matters of such claims is to ascertain the factum of the eligibility. The point oflime when it is ascertained, is unimportant. The prescription of a rigid time-limit for the proof of the entitlement in the very nature of things is demeaning to the object of the Scheme. We are, therefore, of the view thatneither the date of the application nor the date on which the required proof is furnished should make any difference to the entitlement of the benefit under the Scheme.

Hence, Once the application is made, even if it is unaccompanied by the requisite eligibility date, the date of which it is made should be accepted as the date of the preferment of the claim whatever the date on which the proof of eligibility is furnished.

5. That leaves us with the question as to whether, notwithstanding the date

on which the application itself is made, the claimant should be entitled to the D benefit of the pension with effect from an earlier date. In support of the contention that the benefit should be made available with retrospective effect, reliance is placed on the two cases cited earlier where the benefit is given with effect from lst August, 1980. We have given our anxious consideration to the question and are of the view that for reasons more than one, the benefit should flow only from the date of the application and not form any date earlier. As pointed out before in the two earlier cases the question with regard to the retrospectivity of the benefit was neither nor answered. We have, therefore, to decide it for the first time. There is no doubt that if the object of the Scheme is to benefit the freedom fighters, theoretically, they should be entitled the freedom fighters, theoretically, they should be entitled to the benefit from the date the Scheme came into operation. But the history. the true spirit and the object of the Scheme would itself probably not support such starlit-jacket formula. As has been pointed out above, the Scheme was introduced in 1972 on the occasion of the Silver Jubilee of our National Independence. It is not suggested that some of the free<; lom fighters were not in need of financial assistance prior to that date. When the Scheme came into force

for the first time, it was also restricted to those who were in need of such assistance G and hence only such freedom fighters were given its benefit. whose annual income did not exceed Rs 5,000. It is only later, i.e., from !st August, 1980. that the henefit was extended to all irrespective of their income. The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom

struggle. The object was to honourand where it was necessary. also to mitigate the H

898 Sl'PREME COl_lRT REPORTS IJ993j 3 S.CR.

A sufferings of thuse 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 l1f it, since they consider it as an affrnnt 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 inw sume kind of a B programme of compensation. Yet that may he 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 c making the benefit of the scheme available irrespeclive of the date un which the application is made, it would n1)l he advisable to extend the benefit retrospectively.

Lastly, the pcnsilm under the present Scheme is not the only benefit made available to the freedom fighters or their depemlcntsc The preference in employment, allotment or accommodation and in admission to schools and colleges to their kith and kin etc. arc also the other benefits which have been made avail ah le to them for

0 quite sometime now.

Hence we are of the view that the pension under the Scheme should be made payabie only from the date on which the application is made whether the application is accompanied by the necessary proof of eligibility or not. The pension should, ofcourse. be sanctioned only after the required proof is produced.

6. We decline to go into the facts of the individual petitioners in this petition and direct the respondents as follows:

[a] The respondents should accept the applications of the petitioners irre- F spective of the date on which they are made. The applications received hereafter should also be entertained witlwut raising the plea lhat they are beyond the prescribed date.

lb] The respondents should scrutinies every application and the evidence produced in support of the claim and dispose it of as expeditiously as possible and G in any case within three months ofthereceiptoftheapplication, and the documents proof keeping in view the l_audable and sacrosanct object of the Scheme.

[ c I The pension shou Id be paid to the applicant from the date on which the llr-iginal application is received whether the application is filed with or without the H requisite evidence. The sanction of the pension would, however, be subject tn the

,..

M.L BHANDARI v. UNION OF INDIA [SAW ANT, J] 899

requisite proof insupport of the claim.

The respondents are directed to dispose of the cases of the individual petitioners in the present petition in the light of the above directions at the latest within two months from today.

The petition is disposed of accordingly with no order as to costs.

U.R.

Petition disposed of.