Madras High Court
R. Thangavelu vs The Government Of India Represented By ... on 16 December, 1993
Equivalent citations: (1994)1MLJ628
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
ORDER A.R. Lakshmanan, J.
1. The writ petitioner herein and others who claim to be the freedom fighters, were refused the grant of pension under the Swadantrata Sainik Samman Pension Scheme by the Ministry of Home Affairs, Union of India. Hence, they approached this Court for issue of a writ of certiorarified mandamus to quash the order of the Government of India and for mandamus to pay the pension from a particular date. Some writ petitions were filed for the relief of mandamus directing the Government to consider their names and consequently to pay the pension from a particular date.
2. Some impugned orders were passed on merits. Some without assigning any reason. A few orders were issued on the printed/cyclostyled form by filling up the necessary particulars in the blanks left out for that purpose. Some orders were passed on the ground that the imprisonment undergone has not been established. Quite few orders have been passed rejecting the applications on the question of belatedness. Some claims were rejected on the question that the same can be considered only if official documentary evidence such as jail certificate, warrant of arrest, etc., are produced. It is seen from some orders that the certificate does not indicate the period of conviction and the actual date of release. A few cases were rejected on the ground that the co-prisoner's certificate was not filed or even the filed certificates are not genuine. Some cases have been rejected by the Government of India on the ground that the Government of Tamil Nadu has not recommended the case of the persons concerned for payment of pension. Some cases were rejected on the ground that the detention period was less than six months.
3. Since all the writ petitions raise a common question, all the writ petitions have been heard together to settle the general principles of law in controversy like this.
4. Learned Counsel appearing for the petitioners stated that the rejection of pension on various grounds mentioned above is not correct and that the impugned orders were passed without giving opportunity to the petitioners before rejection of their claim. Hence, the principle of natural justice has been violated. It is also stated that the scheme itself says that the certificate from co-prisoner is sufficient and hence the rejection on the ground that sufficient documentary evidence such as jail records were not produced in respect of the date of imprisonment, date of release, etc., is against the very scheme itself. According to them, the State Government's recommendation is not necessary, which is also not contemplated and the rejection of pensionary benefits on that ground by the Central Government is totally irregular. It is their contention that the rejection on the question of delay is also not warranted in view of some of the pronouncements. They have also brought to our notice one or two instances where the certificate issued by a national leader was not accepted and acted upon the claim was rejected. In another instance, the claim of a notable personality, a senior lawyer and a former Member of Parliament for pension was rejected without considering his status and the genuineness of his claim.
5. Mr. R. Santhanam, learned Additional Central Government Standing Counsel, has placed the relevant filed before us for our perusal. He would submit that the main criteria of six months imprisonment for grant of pension under the scheme is still retained and that many claims were rejected since the certificates produced by the persons concerned were not genuine. In all the rejected cases, the parties have furnished bogus certificates.
6. The principles governing the Central Scheme of Pension can be summarised as follows: A Central Scheme for the grant of pension to freedom fighters and their families from Central Revenues was introduced by the Government of India during the Silver Jubilee year of Independence. The scheme commenced from 15.8.1972 and provided for the grant of pension to living freedom fighters are not alive the members of their families/martyrs are entitled to avail the benefit of the scheme. The minimum quantum of pension sanctioned to a freedom fighter was Rs. 200 per month and in case of families, it varied from Rs. 100 to Rs. 200 in accordance with the size and number of eligible dependants in the family. Till 31.7.1980, the freedom fighters pension was admissible only to those who were in need of financial assistance on account of their meagre annual gross income. Thus, anannual income ceiling of Rs. 5,000 was enforced for eligibility to pension. From 1.8.1980, the benefit of the pension, scheme has been extended to all freedom fighters as a token of Samman to them. The Government not only removed the income ceiling from 1.8.1980 but also raised the quantum of monthly pension from Rs. 200 to Rs. 300 in case of living freedom fighters and Rs. 100 to Rs. 200 to the widow of the late freedom fighter with additional Rs. 50 per month each for unmarried daughter upto a maximum limit of Rs. 300 per month.
7. According to the scheme, a person who had suffered a minimum imprisonment of six months in the main land jails before independence is eligible for the grant of Samman pension. However, ex-INA A personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. The minimum period of actual imprisonment for eligibility of pension has been reduced to three months in case of women and SC/ST freedom fighters from 1.8.1980. Detention under the orders of the competent authority is considered as imprisonment and the period of normal remission upto one month will be treated as part of actual imprisonment.
8. Under the Scheme, the following class of persons are also eligible for the sanction of pension:
(a) A person who remained underground for more than six months, provided he was a proclaimed offender or an award of arrest/head was announced, or detention order was issued but not served on him.
(b) A person interned in his home or exlerned from his district provided such period was six months or more.
(c) Likewise, a person whose property was confiscated or attached and sold due to participation in freedom struggle.
(d) A person who became permanently incapacitated during firing or lathi charge; and
(e) A person who lost his job, Central or State Government.
A martyr has also been defined as a person who died or was killed in action or in detention or was awarded capital punishment while participating in a National Movement for emancipation of India. It will also include an Ex. INA or Ex. Military person who died fighting the British.
9. The Scheme provides the procedure to apply for the Samman Pension in the prescribed application was originally fixed as 31.3.1974 and as a result of liberalisation of pension scheme from 1.8.1980, a period of one year, i.e. 1.8.1980 to 31.7.1981 was given for filing applications for Samman pension. The persons who could not apply earlier due to any reason or who were not sanctioned pension even though they were eligible, may also submit their applications before 31.7.1981. This date was again extended and the receipt of applications though was stopped after 31.3.1982, was again extended upto 30.6.1985, in respect of certain categories of cases.
10. A person who applies for Samman pension should furnish the documents indicated below:
(a) Imprisonment/detention certificate from the concerned jail authorities/District Magistrates or the State Government.
(b) In case of non-availability of such certificate, co-prisoner's certificate from a sitting member of Parliament or Member of Legislative Assembly or from an Ex-Member of Parliament or an Ex-Member of Legislative Assembly specifying the jail period, as provided in Annexure I in the application form.
(c) A person who remained underground shall produce documentary evidence by way of court's order or Government order proclaiming him as an offender announcing award on his head or for his arrest or ordered his detention.
(d) In the absence of the above, a certificate from a veteran freedom fighter who had undergone imprisonment for five years or more. However, the veteran freedom fighter should be hailing from the same district.
(e) To prove the case of internment or externment, the applicants can produce an order of internment or externment or any other corroboratory documentary evidence and certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. The veteran freedom fighters are expected to give the certificates in respect of underground suffering, internment/externment and the applicant should belong to the same administrative unit before the reorganization of States and their area of operation must be the same,
(f) Orders of confiscation and sale of properly and orders of dismissal or removal from service are equated to the loss of properly, job, etc.
11. The Scheme was liberalised in the year 1980 to the following effect. Certificate of co-prisoners of two renowned freedom fighters who have undergone imprisonment for not less than one year in connection with the freedom struggle and arc recipient of Tamara Patra and pension from the Central Government is sufficient. Those certificates need not be from a Member of Parliament or a Member of Legislative Assembly or an Ex-Member of Parliament or an Ex-Member of Legislative Assembly. The person of INA, who had been sent to New Guinea and adjourning islands and had undergone extreme hardships of starvation, though they did not suffer any formal imprisonment, have also been admitted to the pension scheme from 1.8.1990. The last date for submission of applications for the pension scheme was extended upto 30.6.1985 and the petitioners herein applied for the sanction of pension enclosing co-prisoner's certificates as prescribed under the scheme.
12. The procedure for issue of sanction order is provided in the scheme itself. The claim of the applicants will be scrutinised in the State Government, Union Territory Administration in consultation with the State Advisory Committee on the basis of copy of application submitted to them. After receipt of State verification and entitlement to pension report, the claim of the applicant is scrutinised and if found eligible, pension is granted. Duration for receiving pension is also mentioned in the Scheme. Except in the case of unmarried daughters, the pension is for the lifetime of the recipient. In the case of unmarried daughters, pension ceases immediately after they are married or become otherwise independent. In the case of death of a pensioner, his/her heirs, though otherwise eligible for pension will not automatically succeed to such a pension. They shall have to apply afresh with proof of the pensioner and their applications will be considered in terms of the pension scheme. These are the salient features of the Swadantrata Sainik Samman Pension Scheme, 1980, formerly known as Freedom Fighters' Pension Scheme, 1972.
13. Pension Scheme to freedom fighters provided by the Government of Tamil Nadu are as under. The Government of Tamil Nadu from time to time commencing from 28.9.1966 passed various Government orders conferring that benefit on the freedom fighters. The first Government Order in the series is G.O. No. 2064, Public (General C) Department, dated 28.9.1966. The freedom fighters who were sentenced to imprisonment or were held under detention for not less than three months or who were killed in action or were awarded capital punishment or died due to firing or lathi charge on account of participation in the National Movement, the last campaign of which was launched between 1942 and 1944, will be eligible for the benefit conferred on them under the said scheme. The Government, accordingly, have sanctioned the benefits under the said scheme with effect from 1.10.1966 for the grant of pension 10 freedom fighters. Rules relating to the scheme were also framed. Under the said scheme, the pension payable to each freedom fighter shall be Rs. 50 per mensem. The Rules framed by the Government were called as Madras Freedom Fighters Pension Rules, which came into force from 1.10.1966. An 'eligible freedom fighters' has been defined to say, 'a freedom fighter whose income does not exceed Rs. 100 per mensem'. A pension of Rs. 50 per mensem shall also be payable to destitute freedom fighter. A pension as stated in Rule 5, shall also be payable to the wife/husband and minor children of a freedom fighter who is now dead, provided that the total grant payable in cases where there are two or more applicants claiming relationship with a deceased freedom fighter shall be limited to Rs. 50 per mensem. The pension shall be payable till death if the grantee is the freedom fighter himself or herself, and if the grantee is the wife of a freedom fighter, the pension shall be payable till her death or re-marriage. If the grantee, however, is a minor son, or a minor daughter, the pension shall cease on the son's attaining the age of 18 or on the daughter's marriage or attaining the age of 21, whichever is earlier. The application for pension must be accompanied by certificates obtained from the Jail Department as proof for having been sentenced to imprisonment or held under detention for not less than three months. The procedure in regard to the consideration of application after the receipt of the same from a freedom fighter for the grant of pension has also been considered by the Government and necessary rules have been framed for that purpose.
14. The next Government Order in the series is dated 10.11.1966 issued by the Government of Tamil Nadu in Memo. No. FFP/6841/66-3, Public (General C) Department. A reference to the letter dated 25.5.1961 received from the Government of India has also been made and the suggestion made by the Government of India has also been incorporated therein. As per the suggestion, an Ex. INA personnel who participated in the IN A movement will also be treated on par with freedom fighters who participated in the national movement, which led to the country's independence. The suggestion given by the Union of India was accepted by the Government of Tamil Nadu and the Government of Tamil Nadu, therefore, decided to extend certain concessions to the Ex. INA personnel in the State of Tamil Nadu treating them on par with the freedom fighters such as preference in the matter of employment in Government service, educational concessions, etc. subject to the following conditions:
(i) An Ex. INA person who applies for the grant of pension shall produce a certificate from the All India INA enquiry and relief committee, New Delhi, to the effect that he served in the INA.
(ii) An Ex. INA person who satisfied the other conditions laid down in the G.O. Third read above except those relating to imprisonment, detention, etc. and production of certificate from the Jail Department will be considered eligible for the grant of pension.
15. The next Government Order in the series in G.O.Ms. No. 95l, Public (Political Pension I) Department, dated 18.5.1981. In the said Government Order the Government have reduced the minimum period of imprisonment/detention/remand specified in Rule 4(i) of the Tamil Nadu Freedom Fighters Pension Rules, 1966, from one month to three weeks. In G.O.Ms. No. 817, Public (Political Pension II) Department, dated 1.4.1980, the Government have already reduced the minimum period of imprisonment/detention/remand from three months to one month, which was further reduced to three weeks in this Government Order. Accordingly; necessary amendments to the Rules were also directed to be made.
16. It appears that the freedom fighters have been frequently representing to the Government that the period of last campaign mentioned under the State scheme, may be extended from 1944 to 1947 as in the case of Central Government Freedom Fighters Pension Scheme, taking into account the various incidents such as the nation-wide hartal and agitations conducted against the arrest of Jawaharlal Nehru on the Kashmir Border in 1946, the hartal at Harvey Mills, Madurai agitation by the Army and Air Force men against the Britishers as also in support of the Bombay Naval Mutiny 1946, etc. It appears, they represented to Government that pension may also be sanctioned to those freedom fighters who went underground or whose property was confiscated or attached or who were dismissed or removed from service on account of their participation in the freedom movement. The Government, in consultation with the State Advisory Committee constituted for screening Central Freedom Fighters Pension applications, directed that the following categories of freedom fighters also be made eligible for grant of pension under the Tamil Nadu Freedom Fighters' Pension Rules:
(i) Freedom fighters who suffered imprisonment or were kept in remand/detention for not less than three weeks or who were killed in action or were awarded capital punishment or have become permanently incapacitated due to firing or lathi charge on account of their participation in the various incidents including those who were imprisoned in what was known as the Madurai conspiracy case, that took place in connection with the Freedom Movements during 1945-47.
(ii) Members of Army and Air Force who agitated against the Britishers as also in support of Bombay Naval Mutiny, 1946, and suffered imprisonment for three weeks or lost their jobs.
(iii) Freedom Fighters who went underground or whose property was confiscated/attached or who were removed/dismissed from service on account of their participation in the Freedom Movement, provided that such claims are supported by Court or other official documentary evidence. The above direction was given by the Government of Tamil Nadu in G.O.Ms. No. 910, Public (Political Pension II) Department, dated 7.6.1982. It is also mentioned in that Government Order that the same will take effect from 15.5.1982. The persons whose annual income does not exceed Rs. 5,000 may apply to the Chief Secretary, Public (Political Pension) Department, Madras-600009, with a copy to the Collector of the District concerns. The last date fixed for receipt of applications is 15.9.1982.
17. The next Government order in the series is G.O.Ms. No. 581, Public (Political Pension II) Department, dated 11.4.1983, by which the Government directed that the existing annual income ceiling of Rs. 5,000 prescribed under Rule 4(ii) of the Tamil Nadu Freedom Fighters Pension Rules, 1966, as amended, be removed in tow with effect from 11.3.1983, from which date the pension shall be payable to those who become eligible on account of this concession. The freedom fighters including ex. INA personnel and their dependants, who become eligible consequent on the removal of the income ceiling, were also permitted to apply direct to the Chief Secretary, Public (Political Pension) Department, Madras-600009, in the form already prescribed under the Rules, with a copy marked to the Collector of the District concerned on or before 15.7.1983.
18. G.O.Ms. No. 740, Public (Political Pension II) Department; dated 4.5.1988 refers to the several representations received from the widows of freedom fighters who have migrated to other Slates in India to live with their children consequent on the demise of their husbands, that they are unable to receive the pension in view of the provisions, viz. that if the pensioner resides outside Tamil Nadu for more than three calendar months he/she is not eligible for the receipt of pension. The Government of Tamil Nadu considered their request and have decided to amend Rule 8 of the Tamil Nadu Freedom Fighters' Pension Rules providing for the payment of pension to persons who have migrated to other States also subject to certain conditions. Certain conditions which have been imposed for eligibility to receive pension under this category have also been more fully explained in paragraphs 2 to 4 of the said Government Order.
19. The next Government Order in the series is G.O.Ms. No. 2015, Public (Political Pension II) Department, dated 16.11.1988, wherein the Government of Tamil Nadu have directed that the applications for the grant of State Freedom Fighters' Pension may be received from persons who are aged 70 and above as on 15.10.1988 and who produce co-prisoner's certificate from any one of the persons mentioned in the annexure to that Government Order. Considering the claim of several aged and genuine freedom fighters who apply for the grant of Stale Freedom Fighters Pension in spite of the fact that the last date was over, the Government have decided to extend the last date and to accept the co-prisoner's certificate q| ex-Legislatures and freedom lighters, whose integrity and morality is beyond question, atleast to persons who are sufficiently aged, as a gesture in connection with the 40th Anniversary of India's Independence. The names of persons who are authorised to issue the co-prisoner's certificate have been mentioned in the annexure to that Government Order, which is reproduced hereunder:
(i) Dr. M.P. Sivagnanam, Madras District -Former Chairman, Legislative Council, State Advisory Committee.
(ii) Thiru O.V. Alagesan, Chengalpattu District - Former Union Minister.
(iii) Thiru C. Subramaniam, Madras District - Former Union Minister for Finance.
(iv) Thiru R. Govindaswami, Madras District - Retired Joint Director of Rural Development.
(v) Thiru S. Lakshmikanthan Bharathi, Madras District - retired Assistant Development Commissioner, Rural Development Department.
(vi) Thiru M. S. Selvarajan, Thirunelveli District, Ex. M.L.A.
(vii) Thiru Thookumedai Rajagopal, Madras District (belongs to Tirunelveli formerly) Journalist.
(viii) Thiru M.S. Viswanathan alias Savi, Madras District, Editor, Savi.
(ix) Thiru K. Subramaniam, Madras (belongs to Coimbatore) Freedom Fighter, former Member, State Advisory Committee,
(x) Thiru L. Krishnaswami Bharathi, Madras (belongs to Tirunelveli) freedom fighter.
(xi) Tmt. K. Manjubashini, Madras District -Social Worker.
(xii) Thiru A.N. Sivaraman, Madras District - formerly Editor, Dinamani.
(xiii) Thiru C. Rajavelu, Madras District Retired Director of Translations, formerly Member, State Advisory Committee.
(xiv) Thiru T.R. Ramamirtha Thondaman, Thanjavur District - Ex. M.L.A.
(xv) Thiru T.S. Avinasilingam Chettiar, Coimbatore District - Ex. Education Minister of Tamil Nadu.
20. In partial modification of the orders issued in G.O.Ms. No. 2015, Public (Political Pension II) Department, dated 16.11.1988, the Government directed in Letter No. 53920/90-1, Public (Political Pension II) Department, dated 28.8.1990, that the applications for the grant of State Freedom Fighters Pension may be received for consideration from persons who are aged 70 and above as on 15.10.1988 and who produce co-prisoner's certificate from any two of the persons mentioned in the annexure G.O.Ms. No. 2015, Public (Political Pension II) Department, dated 16.11.1988. However, it is mentioned that the general certificates issued by these certifiers will not be taken as valid evidence for fresh sanction of State Freedom Fighters Pension.
21. The last Government Order in the series is G.O.Ms. No. 877, Public (Political Pension II) Department, dated 9.8.1992 wherein the Government, in recognition of the sacrifices made and the patriotic fervour of those who fought for the freedom of the nation have announced among others, many concessions. Accordingly, the Government directed that the quantum of pension now granted to the freedom fighter pensioners including ex. INA personnel and their dependants be increased as follows with effect from 1.8.1992.
(i) The pension of Rs. 400 per mensem (Rupees four hundred only) now being drawn by the State Freedom Fighters alone be raised to Rs. 1,000 (Rupees one thousand only) per month.
(ii) The Freedom Fighters who are drawing Swadantrata Sainik Samman Pension of Rs. 750 per month (Rupees seven hundred and fifty only) from the Central Revenue will be paid a sum of Rs. 250 (Rupees two hundred and fifty only) from the State funds.
(iii) The State pension of Rs. 100 per mensem (Rupees one hundred only) now being drawn by Freedom Fighters who are in receipt of Central Freedom Fighters' Pension of Rs. 750 be raised to Rs. 250 per mensem (Rupees two hundred and fifty only).
(iv) The pension of Rs. 400 per mensem (Rupees four hundred only) now being drawn by the wives/husbands/minor children of deceased State Freedom Fighters Pensioners be raised to Rs. 500 per mensem (Rupees five hundred only)
22. Consequently on the enhancement of Central Pension from Rs. 750 to Rs. 1,000 per mensem with effect from 12.8.1992, the Director of Treasuries and Accounts has requested the Government of Tamil Nadu to issue clarification as to whether the category of pensioners mentioned in the said communication may be paid Rs. 250 per mensem. It is a matter of record that Mr. R. Dalavai, President, Tamil Nadu Freedom Fighters' Association has filed W.P. No. 19240 of 1992 on behalf of the Tamil Nadu Freedom Fighters' Association, Madras, in this Court seeking directions among others on the following issues: To order payment of pension from State funds to those drawing Central Pension alone, Rs. 250 per mensem from 1.8.1992 onwards and to those drawing State pension of Rs. 100 per mensem, additional pension of Rs. 150 per mensem from 1.8.1992 onwards. On 12.4.1993, one of us D. Raju, J.), while deciding W.P. No. 19240 of 1992, issued a writ of mandamus directing the Government to disburse the amount due to the categories of pensioners visualised in para. 3(ii) and (iii) of G.O.Ms. No. 877, Public (Political Pension II) Department, dated 9.8.1992 in terms of the said order. The Government have therefore, decided to implement the directions of this Court with effect from 1.8.1992 and issued the following directions:
(1) All the freedom fighters drawing only Central Pension i.e. Swatantrata Sainik Samman Pension, be paid a sum of Rs. 250 (Rupees two hundred and fifty only) from the State Funds, and (2) All the freedom fighters drawing both State Freedom Fighters Pension and Swatantrata Saink Samman Pension, be paid an enhanced State Pension of Rs. 250 (Rupees two hundred and fifty only) instead of Rs. 100 (Rupees one hundred only)
23. Many judicial pronouncements of the Apex Court, our High Court and also of the other High Courts were cited by the learned Counsel for the petitioners in support of their case. The decision reported in D.S. Nakara v. Union of India , has been cited to show that the sanction of pension creates a vested right on the person and it is neither a bounty nor a matter of grace depending on the sweet will of the employer. The Supreme Court in the above decision held that the pension is not an ex-gratia payment but it is a payment for the past service rendered and that it is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in the lurch. The Supreme Court while answering the question as to whether the petitioners before the Supreme Court are entitled to receive the superannuation or retiring pension under the Central Civil Services (Pension) Rules, 1972, forming a class as a whole, has made the above observation.
24. Next, we will refer to the judgment of the Supreme Court reported in R. Narayanan v. Union of India . The appellant before the Supreme Court, who is a freedom fighter was refused the grant of pension under the Swadantrata Sainik Samman Scheme by the Ministry of Home Affairs and hence, he approached the Madras High Court for the issue of a writ of certiorarified mandamus. That writ petition was dismissed by a learned single Judge. The writ appeal filed against the said order was also dismissed by a Division Bench of our High Court. Hence, he presented an appeal before the Supreme Court. Initially, the appellant sought the grant of pension on the ground that as a freedom fighter, he was kept in police custody for 15 days and after conviction, he underwent imprisonment for three and a half months and under the scheme, a freedom fighter must have undergone a minimum period of imprisonment for six months for his participation in the freedom struggle in order to get pension under that head. So, the appellant was refused pension. Thereupon, he applied for grant of pension on another ground viz. that he had suffered permanent loss of vision in his left eye due to brutal lathi charge by the police against freedom fighters. The appellant's claim of permanent loss of vision in the left eye was duly certified by Government doctors. The District Collector, after making a detailed enquiry, certified the claim of the appellant as a bona fide one and recommended his case for grant of pension. Accepting the report of the Collector, the Deputy Secretary to Government of Tamil Nadu addressed the 2nd respondent. Inspite of the medical certificates issued by the Government doctors and the recommendations of the District Collector and the State Government for grant of pension under the Swadantrata Sainik Samman Scheme, the Ministry of Home Affairs declined to grant pension to the appellant on the ground that it is not possible to grant pension in terms of permanent incapacitation. It was in such circumstances, the appellant moved the Madras High Court for the relief mentioned above but failed to meet with success. Counsel for the appellant before the Supreme Court urged that the respondents are not justified in construing Clause 3(e) of para.4 of the Pension Scheme to mean that the incapacity besides being permanent, should also be of a total nature and as such, the denial of pension to the appellant under Clause (e) is unjust. Under the scheme, a freedom fighter is eligible to receive pension if he satisfies one of the following clauses, viz:
(a) Had suffered a minimum imprisonment of six months (three months in the case of women)
(b) Had remained underground for more than six months provided.
(i) he was a proclaimed offender; or
(ii) he was a person on whom an award for arrest had been announced; or
(iii) he was a person against whom detention order had been issued but not served.
(c) Had been interned in his home or externed from his district provided the period of internment/externment was for six months or more.
(d) Had his property been confiscated or attached and sold due to participation in the freedom struggle.
(e) Had become permanently incapacitated during firing or lathi charge.
(f) Had lost his job (Central or State Government) and been thus deprived of his means of livelihood on account of his participation in the National Movement.
25. In the above case, the Supreme Court while construing Clause 3(e) of the scheme, which only refers to permanent incapacitation due to fire or lathi charge and not to total incapacitation, hold that the appellant will be eligible for the pension for the reasons stated in the order. The Supreme Court held that the interpretation given by the respondents before the Supreme Court to Clause 3(e) of para. 4 of the scheme cannot be sustained because the words used in the clause are 'permanently incapacitated' and not 'permanently totally incapacitated'. While rejecting the contention of the respondents, the Supreme Court has observed that the stand of the respondents would be opposed to the plain meaning of the words and result in addition of more conditions to the clause what the framers of the scheme have laid down. In paragraphs 10 and 11, the Supreme Court has observed as follows:
The scheme has been formulated with a view to acknowledge the services rendered to the country by, patriotic citizens during the freedom movement and who had suffered at the hands of the British Rulers in one way or the other and to compensate them in some measure for their sacrifices for the sake of the country. The respondents are therefore not justified in refusing to grant pension to the appellant under Clause (e) of the Scheme on the ground that the permanent incapacitation suffered by him does not satisfy the requirements of Clause (e) of the Scheme. The learned single Judge and the Division Bench of the High Court, while rejecting the writ petition and writ appeal filed by the appellant, have only taken into account the period of imprisonment undergone by the appellant and the said period falling short of the prescribed minimum of six months and have not considered the appellant's claim for pension under Clause (e).
11. Before concluding the judgment we may also refer to two other objections that have been raised by the respondents in their counter affidavits. The first one is that the appellant's claim for pension under Clause (e) is an afterthought since he had put forth such a claim only after his claim for pension on the ground of incarceration had been rejected. The second objection put forth is that the petitioner has not been able to produce any documentary evidence from office records of the relevant period in support of his claim of loss of vision in one eye'. There is neither justice nor grace in the respondent's putting forth such objections. No one can really expect official records to have been preserved for a period of 40 years to prove the treatment given to the petitioner for the injuries sustained by him during the freedom struggle. Hence, the objection relating to non-production of official records of the relevant period by the appellant to prove the sustainment of injury by him deserves outright rejection as well as outright condemnation. As regards the criticism that the appellant's claim under Clause (e) appears to be an afterthought, this too merits instantaneous rejection. As we have already pointed out, the Government doctors who have examined the appellant have found his claim of permanent incapacitation of the left eye to be true and the State Government authorities have, after due enquiry, accepted the bona fides of the appellant's claim and recommended his case for grant of pension under the S.S.S. Scheme by the respondents. Consequently, merely because the appellant, perhaps out of ignorance of the several heads under which the claim of pension could be Blade, had applied initially for grant of pension under Clause (a), it can never be said that the present claim of the appellant is an afterthought.
26. We would next prefer to refer the judgment of our learned brother J. Kanakaraj, J. in W.P. No. 7606 of 1990 dated 25.3.1991 reported in C. Gabriel v. the Government of India (1991) 1 L.W. 279 : 1991 Writ. L.R 49. The said writ petition was filed challenging the order of the Central Government rejecting the claim preferred by the petitioner for grant of freedom fighter's pension on the ground that the petitioner had not produced any acceptable documentary evidence in support of his claim and that the State Government had not recommended his case for the grant of pension and praying for a direction to the 1st respondent to pay freedom fighter's pension torn 27.5,1979 with 18%interest On a consideration of the materials, on record J. Kanakaraj, J. has held as follows:
The rules for the grant of Central Government pension and the mode of proof are set out in the Freedom Fighters Pension Scheme, 1972. In a subsequent Press Note this requirement was slightly modified. I am at a loss to know why the respondents are denying the claim of the petitioner on purely technical grounds. Schemes are introduced by the Government not for the purpose of adding feathers to their cap. Such claims are not for the sake of adding to the record of achievement. These schemes are essential to benefit the freedom fighters who had suffered for the cause of freedom. To say that the petitioner has no statutory right and the grant of pension is gratuitous is most uncharitable. The proof of the pudding is in its eating. This is certainly not a case where the respondents can take an inflexible attitude and try to interpret the rules too strictly. The razor edge interpretation is certainly not called for in a case like this. It is really surprising to see as to why the State of Tamil Nadu should be so anxious to prevent the petitioner from getting the pension. Neither the counter affidavits nor the replies of the respondents give any specific reason as to why the certificates produced by petitioner should not be accepted. The certifiers are admittedly persons who are receiving pension from the Central Government. Necessity of the certifiers being a sitting legislator or a past legislator has been dispensed with under the present guidelines. I am, therefore, clearly satisfied that the petitioner is entitled for the grant of pension by the Central Government under the Swadantrata Sainik Samman Pension Scheme, 1980.
I have already pointed out that in cases like this one must look into the overall aspect of the claim and not disset the requirements of law in such a manner so as to deny the claim of the petitioner. It is not as if the petitioner is not a freedom fighter at all. What he lacks according to the respondents is proof as required by the guidelines prescribed by the Government. I, therefore, set aside the order of the 1st respondent dated 6.11.1989 and direct the 1st respondent to grant pension under the abovesaid scheme from the date of the petitioner's second application, viz. from 27.5.1979. However, I am not inclined to grant interest at the rate of 18% as claimed in the writ petition. The payment of arrears to some extent will alleviate the sufferings of the petitioner. The arrears of pension shall be paid by the 1st respondent on or before 30.4.1991. Futher, pension will be paid every month in accordance with the scheme.
27. It is seen from the above ruling that the scheme which have been formulated by the Government are essentially to benefit the freedom fighterswho had suffered for the cause of freedom and that to say that the petitioner has no statutory right and the grant of pension is gratuitous was most uncharitable. According to the learned Judge, this is certainly not a case where the respondents can take an inflexible attitude and try to interpret the rules too strictly and, if we may use the expression of the learned Judge, "razor edge interpretation is certainly not called for in a case like this".
28. The next decision cited by the learned Counsel for the petitioners is reported in Surja v. Union of India . The learned Chief Justice speaking for the Bench and while considering the claim of the persons who had participated in Arya Samaj Movement and suffered minimum six months imprisonment, has observed that if the petitioners suffered the minimum sentence of six months imprisonment on account of their participation in the Arya Samaj Movement, they would be entitled to pension under the Swatantrata Sainik Samman Pension Scheme. While deciding the issue, the Supreme Court has observed as follows:
It had already been indicated that each of the petitioners had been convicted and was ordered to suffer imprisonment of more than six months. The petitioner's assertion that they did not claim remission has not been doubted or disputed. In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a period beyond six months remission had been granted and they were let off earlier would not take away their right to earn pension. Learned Attorney General appearing for the respondents has accepted this construction of the entitlement clause.
29. Next, we refer to the judgment of our learned Brother K.S. Bakthavatsalam, J., in the decision reported in R.S. Venkatachalapathy Vengaiah v. The State of Tamil Nadu (1992) 2 M.L.J. 336. The petitioner before the learned Judge was a freedom fighter. He was granted pension for having suffered imprisonment for the freedom struggle from 8.5.1941 to 23.6.1941. He got the pension on the basis of a letter issued by a co-prisoner, who is also an Ex. M.L.A. He was receiving the pension from 1980. On 23.6.1989, a notice to show cause why it should not be cancelled was issued to him. He gave a reply. However, the pension was cancelled on the ground that his name was not found in the Convict Register kept in the Central Jail, Madurai, for the period 8.5.1941 to 26.3.1941. He filed the writ petition challenging that order. The learned Judge, while considering the claim of the petitioner, observed as follows:
When the petitioner made sincere efforts in the years 1977 and 1980, he was informed that the records were not available and as such he has a right to produce a co-prisoner's certificate in the year 1980 to prove his case. There is no sanctity in stating that his name should be found in the convict register to prove his case. The rules themselves say that it is enough to produce a co-prisoner's certificate obtained either from Ex. M.L.A. or from Ex. M.P. The learned Judge has further observed as follows:
The stand of the respondent is wholly inconsistent. When the petitioner made sincere and serious efforts in the year 1977 and 1980, he was informed that the records were not available and as such he has a right to produce a co-prisoner's certificate in the year 1980 to prove his case. I do not see any sanctity in stating that his name should be found in the convict register to prove his case. The rules themselves say that it is enough to produce a co-prisoner's certificate obtained either from Ex. M.L.A. or from Ex. M.P. In such circumstances, I fail to see how the petitioner's freedom fighter's pension can be cancelled by the 2nd respondent on the ground that he has not produced any records to prove that he was imprisoned for freedom movement stating when an officer inspected the Madurai Jail, he found that the petitioner's name has not been found in the convict register. It is also seen that when the petitioner applied is the years 1977 and 1980 he was informed that no records were available as white ants had eaten away the records. In view of that, the impugned order is quashed, the writ petition will stand allowed and the respondents are directed to pay the petitioner the freedom fighters' pension and also the entire arrears. However, there will be no order as to costs.
30. A writ appeal was filed by one freedom fighter by name K. Murugaiyan against the order of Mr. Srinivasan, J. in W.P. No. 10014 of 1992 dated 10.8.1992. The writ appeal was heard and decided by K. Venkataswami, J. and K. Swamidurai, J. on 22.6.1993. The learned Judges of the Division Bench after considering the relevant materials placed before them, have allowed the writ appeal after following the Supreme Court verdict in R. Narayanan v. Union of India . The learned Judges have also referred to the judgment of J. Kanakaraj, J., reported in C. Gabriel v. The Government of India (1991) 1 L.W. 279 : 1991 Writ L.R. 49, and affirmed the said decision and held that the only reason given by the respondents for rejecting the claim of the appellant for pension under the scheme cannot be sustained.
31. The decision rendered by one of us (D.Raju, J.) and reported in Tamil Nadu Freedom Fighters Association v. Government of Tamil Nadu 1993 Writ L.R. 694 was also cited before us. The said writ petition was filed to order payment of pension from the State Funds to those drawing Central Pension alone at Rs. 250 per mensem from 1.8.1992 onwards and to those drawing State Pension of Rs. 100 per mensem, a further sum of Rs. 150 per mensem as additional pension from 1.8.1992 onwards and to order payment of medical allowance of Rs. 15 per mensem to those freedom fighters who have been paid from 1.8.1990 onwards. After referring to the salient features of G.O.Ms. No. 1825, Transport Department, dated 6.4.1990, G.O.Ms. No. 3658, Transport Department, dated 21.1.1992 and G.O.Ms. No. 877, Public (Political Pension II) Department, dated 9.8.1992, this Court has observed as follows:
A careful analysis and consideration of the relevant Government Order apparently and indisputably issued in exercise of the powers under Article 162 of the Constitution of India would justify the claim made for the petitioner in respect of free travel facilities. The Government Orders dated 6.4.1990 directed the grant of free travel facility in the buses of the State Transport undertakings to the freedom fighters and those who participated in the border and/or language stirs and who are recipients of pension or financial assistance as such from the State Government. Such persons could also be the recipients of Central pension as well, but initially the privilege was not available to those who were the recipients of Central pension alone. In G.O.Ms. No. 3658, Transport Department, dated 21.8.1992 on the event of the Golden Jubliee Celebration of 'Quit India Movement' of 1942 the respondent/Government have ordered that the freedom fighters domiciled in Tamil Nadu and drawing Central pension alone also be given free bus passes to travel in the buses of all State Transport undertakings including the Thiruvalluvar Transport Corporation Limited. While that be so, in the communications which are in the form of letters dated 12.3.1991, 2.11.1992 and 18.11.1992 of the Transport Department, the petitioner as well as the concerned Transport Corporation have been informed that the dependants of the pensioners who are recipients of the pension are not eligible for free travel concession and it is only the freedom fighters themselves who actually participated in the freedom struggle and language stir alone could avail of such a concession. The question that falls for consideration is as to whether the stand taken for the respondent that it is the freedom fighters who actually participated in the freedom struggle alone would be entitled to the concession of the other recipients of the freedom fighters' pension as well would equally be entitled to such concession. The very object of the concession is to ameliorate the conditions of those who fought for the country and in recognition of the sacrifice made and the patriotic fervour of those who fought for the freedom of the nation and the payment of the pension to the dependants of such freedom fighters even after the lifetime of the freedom fighters itself appears to be in recognition Of such meritorious and selfless service rendered for the nation at a crucial phase of the country's freedom struggle. The file relating to the Government Order dated 9.8.1992 contains a note about the proposals which emanated from the office of the Chief Minister (page 7 of the file) and the said note would give an impression in unmistakable terms that the object was to benefit the recipients of the pension in question with the issue of free bus passes in the various State Transport undertakings. As a matter of fact, the very same note is available at page 1 of the file relating to the Government Order dated 21.8.1992. Having regard to the laudable object of the scheme as well as the purpose behind the same, I am of the view that interests of justice would require to have a construction of the Government Order made in such a manner as to give effect to the said object in substance and spirit. After all, the claim is not in respect of the dependants even during the lifetime of the freedom fighters as such. If the scheme for the grant of pension postulates the grant of pensionary benefits to such of those dependants who deserve pension even after the lifetime of the freedom fighter who actually participated in the freedom struggle, the same reasoning would help and come to the rescue of the dependants not only to receive the pensionary benefits, but also avail of the free travel concession in the buses of the State Transport Undertakings. In view of the above, I am of the view that the stand taken in the letters dated 12.3.1991, 2.11.1992 and 18.11.1992, run counter to the object, substance and spirit of the Government orders dated 6.4.1990 and 21.8.1992 and consequently it becomes necessary to declare that the free bus travel concession in the buses of the State Transport Undertakings in terms of the existing Government orders would enure to all the recipients of the pension irrespective of the fact whether such recipient was himself the person who actually participated in the freedom struggle or in receipt of the pension as the eligible dependant of such participant.
32. Insofar as the second claim made relating to the payment of the amounts due in terms of G.O.Ms. No. 877, Public (Political Pension II) Department, dated 9.8.1992, was concerned, it was held that there shall be a declaration that the categories of pensioners covered by paragraph 3(ii) and (iii) shall be entitled to the benefits of the State Government Order and to the disbursement of the amounts as per its terms notwithstanding the subsequent increase said to have been effected by the Central Government of the rate of pension payable from their funds.
33. Insofar as the medical allowance was concerned, the learned Judge has observed that there was no dispute whatsoever to the entitlement of the pensioners and the category of pensioners to the said allowance. Thus, this Court has allowed the writ petition for mandamus by declaring and directing the respondents to allow the benefit of free travel concession in the buses of the State Transport undertakings to all the recipients of the pension, Central or State or both. It is further directed that the disbursement of the amount due to the categories of pensioners visualised in para 3(ii) and (iii) of G.O.Ms. No. 877, Public (Political Pension II), dated 9.8.1991 in terms of the said order, be made. This Court also directed the issuance of appropriate directions to the various disbursing authorities to effectively disburse the medical allowance as and when claimed within a time-bound limit.
34. The next decision cited by the learned Counsel for the petitioners is reported in Sukh Lal v. Union of India , wherein a Division Bench while considering the claim for freedom fighters pension, upheld the contention of the petitioner. In the said case, the claim was rejected on 28.1.1984 on the ground that there was paucity of proof in support of the claim preferred by the petitioner. It is seen from the said order that the State of Himachal Pradesh had recommended the case of the petitioner on the basis of the recommendation made by the Deputy Commissioner of the area concerned. The Division Bench observed that there was no reason to disbelieve the version of the petitioner that his externment was on the basis of oral orders since the Bench has accepted this kind of plea in many other similar cases as well. Further, the petitioner has produced certificates of Kahna Ram, a freedom fighter and Tamar Pattar Holder and receiver of this pension from the Centre. In view of the contents of the certificate, the Bench held that it was not possible to accept the contention of the counsel for the respondents that the freedom fighter could not know about the externment of the petitioner when he himself was in jail. In paragraphs 6 and 7, the Bench has observed as follows:
In view of the satisfactory proof of the nature recorded above, there is no manner of doubt that the petitioner was a freedom fighter involved in the movements for the freedom of this country and annexation of princely State of Bilaspur in the dominion of India. His participation is distinctly and squarely established and it would be highly unreasonable to demand any further proof from a freedom fighter like the petitioner to substantiate his case for pension.
Lastly, Shri Dharam Chand Chaudhary contended that the case is thoroughly belated. The case of the petitioner had been rejected in 1984 and he did not pursue the matter vigorously. We are not inclined to accept this contention. The petitioner had been moving from pillar to post to seek pension for his participation in the movement However, he had been facing rough weather at every place. He had not left the efforts and then now ultimately he has approached this Court by way of this petition. We do not see that there is any culpable delay in pursuing and initiating the present case before this Court. The plea based on delay is, therefore, rejected.
35. The last decision in the series is that of K.S. Bakthavatsalam, J. reported in Buviseshamuthu v. State of Tamil Nadu (1992)2 L.W. 255. The learned Judge, while considering the grant of pension by the Government of the Center and the State has held as follows:
A careful reading of the impugned order clearly shows that there is absolutely no application of mind on the part of the respondent herein. The Freedom Fighters' Pension Scheme has been formulated with a view to acknowledge the services rendered by freedom fighters to the country and to compensate the services of the freedom fighters who have suffered in one way or other for the sake of the country. The respondent herein has not understood the spirit behind this petition scheme and has rejected the application on a ground which is totally erroneous.
In this case, the Central Government has considered the claim of the petitioner for freedom fighters' pension and sanctioned the same. In such a situation, the court does not see how the State Government can say that he is not a freedom fighter and he is not entitled to get freedom fighters' pension under the State Scheme. If a stand is taken by the respondent that the petitioner herein is not a freedom fighter. It is highly irrational and arbitrary. Surely, there cannot be a different yardstick to identify the beneficiary, i.e. the freedom fighter in this case. Once a person is accepted as a freedom fighter by the Central Government, the State Government cannot take a different stand and say that he is not a freedom fighter. A person cannot be treated in a different way for the purpose of getting benefits under the State Scheme, when he has been already claimed as a freedom fighter under the Central Government Scheme.
36. It is clear from the scheme referred to above that the Government wanted to grant pension to the freedom fighters who had suffered imprisonment for liberating our nation from the yokes of foreign rule. The object of the scheme appears to be that the persons who suffered imprisonment during the freedom struggle should not be left to suffer in their old age. This pension is granted to freedom fighters and that class of persons are slowly becoming extinct. Having regard to the above laudable object and purpose behind the scheme it is but necessary that the appropriate Government should adopt a liberal approach in the matter of grant of pension to the real freedom fighters. When we say this, it does not mean that when a person makes a claim under the scheme for pension, he should be granted the same as a matter of course. No doubt, the applicant should satisfy the conditions stipulated in the scheme.
37. Rejection on the ground of delay : In our opinion, rejection of claim of genuine and real freedom fighters on the ground of delay or belated approach is not warranted. It may be in some cases, the freedom fighters would have felt no necessity to avail of the benefit of the scheme and on account of change in economic circumstances, he may approach the concerned Government for the grant of pension. In such cases, to reject the claim on the ground of delay would be defeating the very purpose and object of the scheme. Hence, in our opinion if the claim is genuine and true, the same should not be rejected on the ground of delay or that the applicant approached the Government belatedly.
38. Production of documentary evidence : As regards the production of documentary evidence like imprisonment/detention certificate from the concerned Jail authorities/District Magistrates or the State Governments, the Government should adopt a pragmatic approach instead of being hyer technical. It is common knowledge that on account of long passage of time, the freedom fighters may not be in a position to produce the aforesaid certificates. In fact, the Government is also aware of the difficulties in insisting on the production of such certificates. It is, therefore, the scheme itself provided for acceptance of co-prisoner's certificate and INA Board's recommendation. Therefore, once a certificate from a co-prisoner or INA Board is produced and if the Government is satisfied about the genuineness of the same, it will not be necessary to insist on jail records/Court records or Government records. In such cases, it will be but fair that the concerned Government should act on the co-prisoner's certificate if it is genuine and found to be reliable.
39. Rejection of claim for want of proof : In some of the cases, the claims have been rejected summarily on the ground of want of proof. Whenever rejection is made on the ground of want of proof, it is necessary for the Government to give opportunity to the concerned applicant to produce the necessary proof before rejecting the claim summarily. It is also in keeping with the principles of natural justice and fairness in action.
40. Issuance of orders on printed forms/cyclostyled forms : Issuance of orders on printed/cyclostyled forms disclose non-application of mind. The Government have to apply their mind to all the circumstances and consider the claim of a freedom fighter in the light of the Schemes framed by the Government. Therefore, the rejection of the claims should not be mechanical and the decision of the Government should indicates the mind of the Government.
41. Opportunity before rejection : Whenever the Government feels that the materials produced are insufficient or some clarifications are needed, the Government should give an opportunity to the applicant under the Scheme to produce the required materials. Similarly, if the claim is rejected on the basis of remarks/views/recommendations obtained without affording an opportunity to the concerned applicant under the scheme to show cause against such rejection, the same would not be in order. Therefore, in such cases, it is obligatory on the part of the Government to apprise the applicants about the adverse remarks, recommendations, etc. and give them an opportunity to offer their views or explanations on such materials, etc.
42. There are instances where the pension already granted has been cancelled without giving any opportunity to the persons concerned. It is necessary for the Government to give opportunity in such matters before taking a final decision on the question of cancellation of pension already granted. In the absence of jail records, the certificate issued by a co-prisoner should be accepted.
43. Materials to be taken into account before passing orders : The Government should also 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 the 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 of the State pension. Similarly, if the State-Government grants pension to a freedom fighter, (he same should be accepted by the Central Government and no further proof should be insisted upon. 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. Further, when once Tamara Patra has been granted recognising the valuable services rendered during freedom struggle, the concerned Government should automatically grant pension without any further enquiry or proof.
44. We are laying down the above principles by keeping in mind the various legal principles contained in the decisions of the Apex Court and this Court and also the object and purpose of the laudable schemes and the further fact that a genuine and true freedom fighter should not be harassed.
45. In the light of the above principles, we will now take up W.P. No. 7194 of 1991. That writ petition was filed to quash the order of the 1st respondent/Government of India represented by its Secretary, Ministry of Home Affairs (Freedom Fighter Division), New Delhi in Order No. 29/205/77-FF INA, dated 29.7.1986 and consequently direct the 1st respondent to pay Swatantrata Sainik Samman Pension to the petitioner from 12.8.1981.
46. According to the petitioner, during his younger age, he was inspired by the Freedom Movement and joined in the Indian National Army headed by Nethaji Subash Chandra Bose as Sippoy in the year 1943 at Kitta, Malaysia and was in service in ENA for about two years. His Regimental Number was 37813 and he served in the Unit 1/2, Gorilla Regiment. He was given training at Sinamban and at Jogurbag. During the war, the petitioner was arrested with thousand soldiers, and all his belongings were confiscated by the British Army. He was kept at Central Jail for nine months, viz. from September, 1945 to June, 1946. He was in Malaysia for six years. It is further stated by the petitioner that considering his participation in the Freedom Movement, the 2nd respondent/Government of Tamil Nadu by order FFPO. 3237/69, dated 11.8.1969 granted freedom fighters pension and he is still receiving the same. He was given a certificate by the All India INA Enquiry and Relief Committee headed by the then -Prime Minister Shri Jawaharlal Nehru by Certificates No. 8/2/882/IMP, dated 1.10.1953. It is further stated that since he is a freedom fighter he was given Tamara Patra by the Government of Tamil Nadu in the year 1973 during the Silver Jubilee Celebrations of the Independence Day. The petitioner is also given a free pass to travel in Transport Corporation buses of Tamil Nadu Government as he is a freedom fighter.
47. The petitioner would submit that he applied to the 1st respondent on 20.7.1977 through the 2nd respondent for Central Freedom Fighter Pension. The same was rejected by the 2nd respondent by Letter No. 57639/77-1, dated 26.8.1977 stating that the application was received after the last date fixed. The 1st respondent has also rejected the application stating that the same was received after the last date fixed for receipt of application, i.e. 31.3.1974. The petitioner submitted an application on 10.4.1978 to condone the delay but the same was rejected by the 1st respondent by order dated 27.3.1979. Again, the petitioner applied for pension to the 1st respondent on 12.5.1981. By letter dated 26.7.1982, he was directed to produce the original Movement Order, if any, and also the Civilian Proforma duly filled and signed by the petitioner. The petitioner furnished the above along with a certificate issued by the All India INA and Relief Committee and also the 2nd respondent's Freedom Fighters' Pension Sanction Order. The petitioner's application for pension was duly recommended and forwarded by the 2nd respondent in Letter No. 56490/81-A, Public (PPI) dated 5.9.1981. The original INA certificate was also submitted to the 1st respondent to prove his participation and imprisonment in the Freedom Movement. Inspite of the same, the 1st respondent by the impugned order, rejected the petitioner's claim for Freedom Fighters' Pension stating that the documentary evidence sent by the petitioner along with the application does not prove his claim for suffering. The said order is challenged in the present writ petition.
48. The 1st respondent filed its counter-affidavit through the Under Secretary, Ministry of Home Affairs. It is stated in paragraph 5 that the co-prisoner's certificate along with the proforma from one K.Manickam, who certified the co-prisoner-ship with the petitioner in the Rangoon Central Jail from May, 1945 to February, 1946 is a bogus one and as such the said Manickam is not entitled to certify that the petitioner was in Rangoon Central Jail upto February, 1946 and the claim of the petitioner for pension was rejected keeping in view the bogus nature of the co-prisoner ship certificate. It is also stated that the petitioner has not furnished satisfactory proof with regard to his jail sufferings. According to the petitioner, he was detained in the Rangoon Central Jail from May, 1945 to February, 1946 and he was repatriated to India in March, 1946 whereas the certificate of Manickam, who is a recipient of Central Pension, furnishes the information in his own case that he was sent back to India in 1945 itself. Thus, it is contended by the 1st respondent that this discrepancy in the co-prisoner's certificate issued by Manickam proves that the said certificate is a bogus one and as such he is not entitled to certify that the petitioner was in Rangoon Central Jail upto February, 1946. It is also stated that the receipt of State Pension by the petitioner and the TamaraPatra given by the Stateof Tamil Naduare not relevant factors for considering the petitioner's claim for Central Pension and that the conditions for the grant of State Pension are totally different from that of the Central Pension, and as per the Central Scheme, pension is granted to those who had suffered imprisonment for not less than six months during freedom struggle. In the above circumstances, it is contended that the petitioner is not entitled to any relief and the order passed by the 1st respondent rejecting the claim of the petitioner is just and legal.
49. We have heard Mr. N. Paul Vasantha Kumar for the petitioner, Mr. R. Santhanam, Additional Central Government Standing Counsel for the 1st respondent and Mr.P.Sathasivam, Special Government Pleader for the 2nd respondent.
50. We are unable to accept the contention of the 1st respondent for the following reasons. The impugned order of the 1st respondent is in printed form. It only states that the documentary evidence sent by the petitioner along with his application does not prove his claim or suffering. We have held that the Government should adopt a prag-maticapproach instead of being hyper technical in directing the applications to produce the documentary evidence like imprisonment/detention certificate from the Jail authorities or from the State Government. It is common knowledge that on account of the long passage of time, the freedom fighters may not be in a position to produce the certificate asked for. The scheme itself provides for acceptance of co-prisoner's certificate and INA Board's recommendation. Therefore, when once a certificate from a co-prisoner of INA Board is produced, it will not be necessary, in our view, to insist on jail records/court records/Government records. In such cases, it will be but fair that the concerned Government should act on the co-prisoner's certificate.
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 schedme, 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.
53. For the foregoing reasons, the writ petition is allowed, the impugned order is quashed, and consequently, we direct the 1st respondent to consider the claim of the petitioner for Central Pension under the Scheme in the light of the observations and guidelines evolved by us in paragraphs supra for grant of such pension to persons like the petitioner. The 1st respondent, while passing order, will keep the above principles laid down in this judgment and pass appropriate orders accordingly within three months from the date of receipt of a copy of the order either from this Court or on production of the same by the petitioner whichever is earlier and after affording sufficient opportunity to the petitioner as indicated above. The petitioners concerned, whose claims are ultimately sustained in the light of the above orders, shall be entitled to be paid with effect from the date of the respective applications or with effect from the respective dates indicated in the individual orders, concerned, in the light of the decision of the Supreme Court reported in Mukund Lai Bhandari v. Union of India . There will be no order as to costs.