Kerala High Court
Union Of India vs Lonan Benjamin on 1 November, 2001
Author: K. Balakrishnan Nair
Bench: K.S. Radhakrishnan, K. Balakrishnan Nair
JUDGMENT K. Balakrishnan Nair, J.
1. The point which arises for decision in both these Writ Appeals is whether the imprisonment in jail as under trial prisoner cold be reckoned for computing the six months period of imprisonment for getting freedom fighters pension.
2. The undisputed facts are the following:- The first petitioner in O.P.No. 31246/99 is a freedom fighter. The other petitioner in that Original Petition and the petitioner in O.P.No. 31395/99 are the widows of freedom fighters. All of them are getting freedom fighters pension/freedom fighters family pension from the State Government. When the Central Government declared that Punnapra Vayalar struggle was also part of the freedom struggle, they became eligible for the Central pension also. But their applications were not favourably considered because the imprisonment suffered by the concerned freedom fighters was as under trial prisoners and not as convicts. According to Central Government, even though they were freedom fighters in terms of the scheme and were charge sheeted by the police in connection with the freedom struggle, they are not eligible for pension as their cases ended in acquittal. They were only under trial prisoners. So, they are ineligible for pension, the Central Government contended.
Therefore, the decision in these cases will rest on the true construction of the provisions of the Freedom Fighters Pension Scheme known as Swatantrata Sainik Samman Pension Scheme, 1980.
3. The Scheme has been provided as Ext. P1 in O.P. No. 31246/1999. A freedom fighter who had suffered a minimum imprisonment of six months in the main land jails is eligible for pension. The relevant clause in the scheme given in paragraph 4(a) of Ext. P1 reads as follows:-
"4(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before independence. However, Ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India."
An explanation has been added to the said clause. The relevant portion of it reads as follows:
"1. Detention under the orders of the competent authority will be considered as imprisonment.
2. Period of normal remission upon one month will be treated as part of actual imprisonment.
3. In the case of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered.
4. Broken period of imprisonment will be totalled up for computing the qualifying period.
(b) A person who remained underground for more than six months provided he was:
1. a proclaimed offender; or
2. one on whom an award for arrest/head was announced; or
2. one for whose detention order was issued but not served.
(c) A person interned in his home or externed from his district provided the period of interment/externment was six months or more.....".
The main Clause 4(a) speaks of imprisonment only. It does not specify whether it should be as convict or as under trial prisoner. Going by the plain meaning of the words, the petitioners are eligible for pension.
4. But, relying on Clause 3 of the explanation, the appellant has taken the stand that under trial period cannot be counted. As rightly pointed out by the learned Single Judge, the explanation, in fact, dilutes the thrust of the main provision providing for six months imprisonment. Other forms of suffering and incarceration in connection with the freedom struggle are also deemed to be imprisonment for the purpose of minimum imprisonment required as per the main provision. Explanation 3 only says that in cases ending in conviction the imprisonment as under rial prisoner and as convict, can be clubbed together to reckon the total period of six months. It does not mean that if the entire detention is as under trial prisoner, the same has to be excluded. If that was the intention, the same would have been explicitly stated. The interpretation adopted by the appellants cannot be correct,in view of Clause 4(b) of the Explanation. The said provision says that if a freedom fighter was one who remained underground as a proclaimed offender or against whom an award for arrest was pending, then he will also be eligible for pension. It means that if an accused absent himself and goes underground to escape the process of law like arrest, he will be eligible in view of this clause irrespective of the final fate of the criminal case against him. But, if he was actually arrested and remanded and while so, faced the trial which ultimately ended in his acquittal, he will not be eligible, if the Government's contention is accepted. Further, in view of Clause 4(c) of the Explanation, a person interned in his house for six months is also eligible for pension. It means, a person even without any criminal case against him when prevented from moving out for six months from his house becomes eligible for pension. But, a person who is actually involved in a criminal case in connection with the freedom struggle and who was imprisoned for more than six months as under
trial prisoner will be denied pension depending on the outcome of the criminal case against him, if the view of the Government is accepted.
5. The object of Ext. P1 scheme was to provide succour to the aged and infirm freedom fighters and their dependants in recognition of their sacrifice for the mother land. Going by the settled cannons of construction, we are bound to adopt an interpretation which subserves best the object of the scheme. The freedom fighters were oppressed and harassed by criminal cases, house arrest etc. The evade the process of law of the oppressive Government, many went underground. Undoubtedly, they are eligible for pension. Several others were arrested and false cases were foisted upon them. They languished in jail as under trial prisoners and some of them later suffered imprisonment as convicts also. Many false cases have ended in acquittal of the freedom fighters. If the interpretation advanced by the appellant is accepted, those who suffered imprisonment as a result of foisting of false cases which ended in their acquittal will be ineligible for the pension. Having regard to the laudable object of the scheme, the framers of it cannot be held to have such an intention. The intention of the framers of the scheme can be gathered by reading the scheme as a whole. Those who suffered internment in their house, and those who evaded arrest and became proclaimed offenders or carried an award for arrest are made eligible for pension. It cannot be said that the framers of the scheme did not intend the benefit of the scheme being extended to those who suffered incarceration, owing to foisting of false cases, as under trial prisoners. An intention cannot be attributed to the framers of the scheme that the eligibility of the prisoners should depend on the success or otherwise of the prosecution in securing a conviction.
6. The Court can definitely look at the whole scope and object of the Act to gather the intention of it. Lord Porter in Raja Bhagwan Baksh Singh v. Secretary of State (AIR 1940 Privy Council 82) said:
"A right construction of the Act can only be attained if its whole scope and object together with an analysis of its wording and the circumstances in which it is enacted are taken into consideration."
The above statement of Lord Parker has been quoted with approval by our Supreme Court in Premchand Jain v. R.K. Chabra (1984 (2) SCC 301). It will be quite apposite to quote the following words of Judge Learned Hand:
"Compunctions about judicial legislation are right enough as long as we have any genuine doubt as to the breadth of the legislature's intent; and no doubt, the most important single factor in ascertaining its intent is the words it employs. But the colloquial words of a Statute have not the fixed and artificial content of scientific symbols, they have a penumbra, a dim fringe, a connotation, for they express an attitude of will, into which it is our duty to penetrate and which we must enforce when we can ascertain it, regardless of imprecision in its expression."
(Quoted in 60 Harvard Law Review 370)
7. Further, if the interpretation given to the scheme by the appellant is accepted, the same will result in gross injustice also. When persons under internment in the house and those who went underground evading arrest are eligible for pension, those who were actually arrested and suffered torture as under trial prisoners, will be denied pension on the basis of the failure of the prosecution to prove the case against him. Maxwell on Interpretation of Statutes (Twelfth Edition) says:
"Whenever the language of legislature admits of two constructions and, if construed in one way, would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention to bring it about has been manifested in plain words."
One Supreme Court has also spoken in similar words in several cases. In Madhava Rao Scindia v. Union of India (AIR 1971 SC 530) Shah, J. said:
"The Court will interpret a Statute as far as possible, agreeably to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law maker intending injustice and unreason. The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain and unambiguous. A provision in a stature will not be construed to defeat its manifest purpose and general values which animate its structure.....".
8. When we read the scheme as a whole, in the light of the said principles, we have no hesitation to hold that the freedom fighters concerned in these cases are eligible for pension. On their death, their dependents are eligible. Therefore, we find no infirmity with the decision of the learned Single Judge. We affirm the same. The Appeal lack merit and they are accordingly dismissed.
No costs.