Madras High Court
S.N.Mohammed Hanifa vs The Under Secretary To Government on 22 February, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.8287 of 2011 & M.P.No.1 of 2011 S.N.Mohammed Hanifa .. Petitioner Vs. The Under Secretary to Government Ministry of Home Affairs Freedom Fighters Division 1st floor, Loknaick Bhavan New Delhi .. Respondent. Writ petition is filed under Article 226 of Constitution of India for the issuance of writ of certiorarified mandamus to call for the records relating to the proceedings of the respondent vide in his proceedings F No.29/19/ 2005-FF(INA) dated 21.09.2005 and quash the same, consequently direct the respondent to issue Freedom Fighter Pension to the petitioner. For Petitioner : Mr.Thenrajan For Respondents : Mr.C.V.Ramachandra Murthy CGSC ***** O R D E R
The petitioner prays that issuance of writ in the nature of certiorari, to quash the order dated 21.09.2005, declining the request of the petitioner for grant of Freedom Fighter Pension.
2. The impugned order reads as under:
F.No.29/19/2005-FF(INA) Government of India/Bharat Sarkar Ministry of Home Affairs/Girih Mantralaya Lok Nayak Bhavan, Khan Market New Delhi-110 003 Dated September, 2005 To Shri S.N.Mohamed Anifa S/o Nagoor Meera No.1, 6th Street, Bharathi Nagar Korukkupettai, Chennai-21 Subject: Swatantrata Sainik Samman (SSS) Pension Scheme, 1980-reg.
Sir, I am directed to refer to Government of Tamil Nadu's Letter No.50217/PP.1/2004-1, dated 22.11.2004 forwarding therewith your application dated NIL on the subject noted above and to say that your case has been examined keeping in view the State Government's aforesaid letter, the provisions of the SSS Pension Scheme, 1980 and the documents submitted by you in support of your jail suffering from May 1945 to November 1945 in Rangoon Central Jail for participating in the INA movement.
2. Under the SSS Pension Scheme, 1980 any person who claims jail suffering of 6 months or more is eligible for grant of pension 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 release, fact of the case and reasons for release.
(b) Secondary evidence:- In case official records of the relevant period are not available, the 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, certify that documentary evidences from official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting of Ex-MP/MLA, only one certificate in place of two is required. In the case of persons belonging to INA category, only on eCPC is required.
3. After examination of the case on the basis of available records, it is found that your are not eligible for grant of SSS pension due to the following shortcomings:-
(i) You have failed to produce acceptable primary documentary evidence to establish your jail sufferings by producing a copy of jail certificate from the concerned jail authority, District Magistrate or the State Government, indicating the period of detention/sentence awarded, etc.
(ii) The CPC from Shri M. Duraisamy submitted by you as secondary evidence in the absence of contemporary evidence is not acceptable for the reason mentioned below:
Shri M.Duraisamy, the certifier, has mentioned in the certificate that he himself suffered imprisonment for a period of about 8 months. Only freedom fithers receiving Central Samman Pension who have proven jail suffering of year or more are eligible to issue a co-prisoner certificate. Since Shri M.Duraisamy himself has suffered imprisonment for less than 1 year, he is not an eligible certifier. Therefore, you do not fulfill the eligibility and evidentiary requirements of the Scheme.
4. It is clarified that the Freedom Fighters Pension Schemes operated by the State Government and the Central Government are two separate and different Schemes having different eligibility criteria. Grant of pension by the State Government does not ipso facto entitle a freedom fighter to Samman pension under the SSS Pension Scheme from Central Revenue.
5. In view of the above shortcomings, it is regretted that it is not possible to accept your claim for the grant of SSS Pension from Central Revenue, since it does not meet the eligibility and evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. Hence, your claim is, hereby rejected.
6. This issues with the approval of the competent authority."
3. Petitioner served the Indian National Army at Burma, to fight the British Imperialism by joining Nethaji Subhash Chandra Bose. The petitioner was arrested by the British and confined at Central Prison, Rangoon from May 1994 to December 1945. The co-prisoner of the petitioner in the prison was Thiru Duraisamy and Thiru N.Muthu.
4. The petitioner after being repatriated to India, applied for Freedom Fighter Pension to the State and Central Government, along with the requisite documents. The State Government processed the application of the petitioner and accepted the application for grant of Freedom Fighter Pension.
5. The petitioner on the other hand was informed by Central Government vide letter dated 03.06.1996, that his case for grant of Freedom Fighter Pension was under consideration.
6. The petitioner thereafter received a communication dated 21.01.2005, that the co-prisoner's certificate of Thiru Duraisamy could not be accepted, as he had not undergone imprisonment for more than one year. It was pointed out, that under the scheme the certificate of co-prisoner who had undergone more than one year of sentence was only accepted.
7. The petitioner submits that Duraisamy was also receiving the Freedom Fighter Pension having undergone imprisonment for eight months. It is also submitted by the petitioner that Dr. (Col.) Lakshmi Sehgal of INA had addressed a letter dated 31.10.2003, to the Deputy Prime Minister pointing out that IIL-INA personnel in Burma had not suffered imprisonment of one year, but maximum of 10 months.
8. The committee headed by S.S.Yadav had also vide letter dated 26.04.2003 addressed to the Deputy Prime Minister pointed out ,that the EX-INA personnel including the members of IIL and Ashad Hind Dal were not in a position to produce evidence about their detention as prisoner of war camp. Therefore, they should be allowed to submit certificate from co-prisoners, who were receiving the Freedom Fighter Pension.
9. The contention of the learned counsel for the petitioner therefore is is that the request of the petitioner has been rejected on non existing basis.
10. The petitioner being dissatisfied filed representation dated 03.03.2011, against the decision, but no action been taken on his representation.
11. The writ petition is opposed by the learned counsel for the respondent on the ground, that the petitioner cannot take any advantage of the letter addressed to the Deputy Prime Minister, as the Central Government is bound by the scheme as framed. The stand of the respondent is, that under the scheme the applicant has to satisfy the conditions stipulated in the scheme before the application is considered for grant of Freedom Fighter Pension. The petitioner does not fulfill the conditions under the scheme as he has failed to furnish the admissible co-prisoners certificate.
12. The further contention of the learned counsel for the respondent is , that the petitioner is guilty of concealment of facts, as he has failed to disclose that besides the impugned order of rejection, the representation of the petitioner was also rejected, vide order dated 02.09.2009, which reads as under:
F.No.29/19/2005-FF(INA) Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya (FFR Divission) 1st Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003 Dated 02.09.2009 To Shri S.N.Mohamed Anifa S/o Nagoor Meera No.1, 6th Street, Bharathi Nagar Korukkupettai, Chennai-21 Subject: Request for review of the case for grant of Swatantrata Sainik Samman pension from Central Revenues -reg.
Sir, I am directed to refer to your representation dated 06.08.2009 addressed to the Union Hon'ble Home Minister and to say that your case which was rejected earlier on 21-9.2005 has been reviewed at the levelo of Hon'ble Home Minister but it has not been found possible to grant you pension under the Swatantrata Sainik Samman Pension Scheme, 1980
2. No further representation for review of the case will be entertained by this Ministry in future. "
13. Learned counsel for the petitioner vehemently contended, that order dated 02.09.2009, cannot be said to be a fresh order of rejection, as it was passed on his representation to review, which was rejected therefore the impugned order of rejection is only the one dated 02.09.2005.
14. It is contended that the impugned order is totally arbitrary, as the Central Government has failed to take notice of the fact, the State Government had already sanctioned Freedom Fighter Pension to the petitioner which was binding on the Central Government.
15. In support of this the learned counsel for the petitioner placed reliance on the judgment of this court in R. Thangavelu vs. The Government of India, 1994 1 MLJ 628 laying down as under:
51. In the instant case, though it is contended in the counter affidavit that there is some discrepancy in the co-prisoner's certificate, the Government of India ought not to have rejected the claim of the petitioner for Central Pension summarily without giving an opportunity to the petitioner. Whenever rejection is made on the ground of want of proof or otherwise, it is necessary for the Government to give opportunity to the concerned applicant to produce the necessary proof or explain the discrepancy found out by the Central Government. It is also in keeping with the principles of natural justice and fairness in action. In the instant case, the impugned order was issued on a printed form, which discloses the non-application of mind. The 1st respondent is expected to apply its mind to all the circumstances and consider the claim of a freedom fighter in the light of the scheme framed by the Government. In our opinion, the rejection of the claim of the petitioner is mechanical. The Government have not indicated their mind to the petitioner. The Government should have given an opportunity to the petitioner to explain the discrepancy pointed out by the 1st respondent. But the claim of the petitioner in the instant case was rejected without affording an opportunity to the petitioner and hence, in our view, the same would not be in order. It is obligatory on the part of the Government to apprise the applicants concerned about the adverse remarks, etc., and give an opportunity to offer their views or explanations on such materials. We have already held that the Government also should take into account the book published by them under the title 'who is who' containing the names of freedom fighters, and act upon the same. Equally, when once the Central Government grants pension after satisfying themselves about the fulfilment of the conditions stipulated in the scheme, it will not be fair for the State Government to reject the claim for State Pension. Similarly, if the State Government grants pension to a freedom fighter, the same should be accepted by the Central Government and no further proof should be insisted upon.
52. In the instant case, as already observed, the petitioner is receiving the Stale Pension. He was also awarded Tamara Patra Certificate. Further, the All India INA Enquiry and Relief Committee headed by the then Prime Minister Shri Jawaharlal Nehru has given a certificate to the petitioner. This apart, the petitioner's application for Central Pension was duly recommended and forwarded by the Government of Tamil Nadu. The original INA certificate was also submitted by the petitioner to the 1st respondent to prove his participation and Imprisonment during the freedom movement. As stated already, the State Government has also granted pension to the petitioner as a freedom fighter. He must, in our view, automatically get the order of pension under the Central Scheme without any further enquiry on the claimant satisfying the guidelines and the 1st respondent cannot summarily reject that he is not a freedom fighter at all. We have laid down the above principles by keeping in mind the various legal pronouncements of the Supreme Court and also our High Court, and also the object and purposes of the scheme. Since the impugned order has been passed in a mechanical manner, the same is liable to be quashed."
Reliance is also placed, on the judgment of this court in K.S.Velusamy vs. The Govt. of India and another , AIR 2000 Madras 42 where in again it was held as under:
"In other words, once either the State Government or the Central Government grants pension to a particular freedom fighter, he must automatically get the other pension either under the State or under the Central Government Scheme without any further enquiry. On the claimants satisfying the guidelines, and the Government cannot reject the claim summarily that he is not a freedom fighter at all......."
In the light of the pronouncement of the Division Bench inasmuch as the petitioner was granted State Pension as referred above even from 29-7-1991, the first respondent is not justified in passing the impugned order rejecting the claim of the petitioner for Central Freedom Fighters Pension. Without going into the other aspects inasmuch as the petitioner is getting pension from State Government, in the light of the above said pronouncement the impugned order is set aside and the matter remitted to the first respondent for fresh disposal. The first respondent is hereby directed to reconsider and pass orders within a period of four months from the date of receipt of a copy of this order. First respondent is also directed to consider the claim of the petitioner with reference to the order of the 2nd respondent dated 29-7-1981 granting State Freedom Fighters Pension as well as the guidelines made by the Division Bench in R. Thangavelu v. Government of India, 1994 WLR 137.
6. Writ petition is allowed to the extent mentioned above, No costs. Consequently, connected WMP, is closed."
Learned counsel for the petitioner also contended that the impugned order, suffers from vice of violation of principle of natural justice, as the petitioner was not given personal, before rejecting his application.
16. Learned counsel for the respondent, on the other hand contends that the law laid down by this court in R. Thangavelu vs. The Government of India and K.S.Velusamy vs. The Govt. of India and another, cannot be said to laying down the correct law, in view of the judgment of the Hon'ble Supreme Court in Mahender Singh vs Union of India (C.A.No.5215 of 2009 decided on 27.09.2010), wherein the Hon'ble Supreme Court was pleased to lay down as under:
"9. Though the State Advisory Committee and the Government of Bihar recommended the case of the appellant for Central Scheme, it is pointed out by the learned Counsel for the respondent that the same is not binding on the Central Government in the absence of required proof for the same. In other words, the recommendation of the State Government is not final or conclusive and it is for the authority of the Central Government granting such pension to make further inquiry in the matter in terms of various conditions prescribed in the Scheme and to take a final decision.
10. In the light of the above discussion, we conclude that the appellant has failed to establish his claim for freedom fighter pension in terms of the Central Scheme, on the other hand, we are in agreement with the conclusion arrived at by the Division Bench of the High Court. Consequently, the appeal fails and the same is dismissed. No order as to costs."
In view of the authoritative pronouncement of Hon'ble Supreme Court, the law laid down by this court cannot be said to be a good law, as the Central Government Scheme is independently decide, whether the applicant is eligible for Freedom Fighters Pension from the Centre or not. The contention of learned counsel for the petitioner that grant of pension by state Government, automatically entitles the Central Government pension, therefore cannot be accepted.
16. Though, there is force in the contention of the learned counsel for the petitioner, that the petitioner was entitled to hearing before the rejection of the representation, but in view of the admitted fact that the petitioner does not satisfy the conditions laid down in the Central Government scheme, and in view of the fact that the petitioner is unable to challenge the impugned order of rejection on merit, therefore technical plea of violation of principle of natural justice, also deserves to be rejected. Even if the case is remitted back to respondent for personal hearing it will only be a empty formality as admittedly the petitioner is not in a position to produce jail custody certificate or admissible certificate of co-prisoners.
17. For the reasons recorded, no grounds is made out to interfere with the impugned order.
18. No merits . Dismissed. Connected miscellaneous petition is closed.
To The Under Secretary to Government Ministry of Home Affairs Freedom Fighters Division 1st floor, Loknaick Bhavan, New Delhi