Madhya Pradesh High Court
Shrichand Jain And Ors. vs Union Of India (Uoi) And Anr. on 26 February, 2002
Equivalent citations: 2002(5)MPHT422
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. Question which arises for the decision in the instant writ petition is whether legal representatives of deceased freedom fighter are entitled to claim the pension; which was applied for by the deceased freedom fighter but was not released on impermissible grounds.
2. Late Shri Sundarlal Jain participated in the freedom struggle; took part in "Bharat Chhodo Aandolan" and was arrested at Sagar and was later sent to Central Jail, Jabalpur; he was arrested in September, 1942 and was transferred on 14-10-1942 from Sagar to Central Jail, Jabalpur where he remained confined upto 28-6-43. After release Late Shri Sundarlal Jain again actively participated in freedom struggle. State Government granted the pension admissible to a freedom fighter, however, the Central Government declined to grant pensionary benefits to Late freedom fighter Shri Sundarlal Jain; he made an application to the Central Government in the year 1984.
3. The petitioners claim that petitioner was arrested by the erstwhile British Government for taking part and organising meetings, distribution of bulletines, organising procession; Deputy Collector, Sagar had certified the factum of arrest on 5-9-42 and continued detention of Late Shri Sundarlal Jain in Central Jail at Jabalpur till 28-6-1943. Central Government formed the scheme for the grant of pension to the freedom fighters on 18-9-72; the scheme was amended in the year 1986. The scheme was re-named as "The Swatantrata Sainik Samman Pension Scheme". Petitioners submit that at the relevant time for being entitled to the grant of central pension, detention in jail was required of six months only; whereas Shri Sundarlal Jain remained in jail for about 9 months. Jail Superintendent, Sagar had also certified the factum of arrest and transfer to Jabalpur Central Jail as per Warrant No. 1712. State Government recommended the application of the petitioner to the Central Government on 23-12-95. Petitioners filed previously a Writ Petition No. 1757/96 before this Court; this fact was noticed that petitioner remained in Jail from 5-9-42 till 25-6-43. There were certain discrepancies in the claim made by the petitioners, this Court directed the petitioners to furnish information and Union of India was directed to decide the claim within eight weeks; this direction was issued by this Court on 4-1-2000; final order has been passed by the Govt. of India, Ministry of Home Affairs on 10th of April, 2000 (Annexure P-7); the application was rejected on the ground that if the freedom fighter is not alive, for the purpose of grant of pension, the family includes mother, father, widower/widow if he-she has not since remarried and unmarried daughters. Also in case where the freedom fighter expires after submission of their application without pension being sanctioned in their favour leaving behind successors who are eligible for grant of family pension under the Scheme. Family pension can be sanctioned in favour of the legal dependents but no posthumous sanction could be issued in such case in favour of legal heirs who are not eligible for grant of family pension under the scheme. As the son's under the "Swatantrata Sangram Sainik Pension Scheme" are not entitled for family pension, it was regretted that no pension could be granted in their favour and their case was rejected. Petitioners submit that they were not claiming the family pension but the pension which was applied for by Late Shri S.L. Jain on 3-9-84 and waiting for the decision of the application; release of the pension; he had filed W.P. No. 1757/96, however, could not see the fruits and died. The petitioners are claiming the arrears only which should have been paid from the date of application till the date of death of Late Shri Sundarlal Jain on the basis that right of pension was right in property, thus, petitioners are entitled to claim it being the legal representatives.
4. Respondent No. 1, in the return, contends that sons of freedom fighters are not eligible for family pension under Swatantrata Sainik Samman Pension Scheme, 1980 which can be granted to mother/father, widower/widow; similar stand is taken which is reflected in the order (Annexure P-7) rejecting the application reiterating reasons elucidated above.
5. It is further contended that petitioners were not eligible for grant of freedom fighter pension due to variation in their claim; he claimed underground suffering and 15 days detention in Sagar Jail; deceased did not claim the period of detention from 5-9-42 to 25-6-93; the verified jail suffering is only 40 days; he claimed suffering in Jabalpur jail which is not admissible as no jail certificate or in its absence NARC and co- prisoner certificate have been furnished.
6. Learned Counsel for petitioners submits that it is a case where the petitioners have been unlawfully deprived of the arrears of pension which were payable to the petitioners' father; the rejection order is only on the basis that sons cannot claim the family pension whereas the petitioners are not at all claiming the family pension; they are claiming the arrears of pension only which would have been paid to the petitioners' father but for the illegal deprivement.
7. Learned Counsel Shri R.S. Patel for respondent No. 1 submits that rejection as per order (Annexure P-7) is proper; freedom fighter pension is in the shape of honorarium which cannot be said to be heritable; thus the petitioners cannot claim the amount of pension which would have been payable in case the application was to be allowed. He further submits that there were other discrepancies in the claim petition due to which the claim of the petitioners' late father was not admissible.
8. It is apparent from Annexure P-7 the order of rejection of the claim petition for payment of freedom fighters' pension moved by Late Shri S.L. Jain that he having died, sons cannot claim the family pension as the family defined under the rules does not cover the case of sons but only the freedom fighter's spouse or unmarried/unemployed daughter, mother and father are only entitled to family pension; order is bad in law and factually incorrect. Petitioners at no point of time claimed the family pension; they were claiming only the entitlement of Late Shri S.L. Jain of the pension which the deceased would have received in his life time that is for the period from the date of application till his death. Thus, the rejection of the application as per order (Annexure P-7) that petitioners were claiming the family pension and they do not fall within the purview of family is ex-fade bad in law.
9. Pension is neither a bounty nor a matter of grace depending upon the sweet will, pension has been sanctioned to the freedom fighters for the service rendered to the nation; it is a socio welfare measure and contains in it the obligation of the society to look after the freedom fighters in their old age. There is corresponding obligation on the society not to leave them in lurch. Right to pension creates a vested right which cannot be taken away by virtue of death of a freedom fighter if he applied for it and was eligible to its grant. The same crystallises on moving application and such a right cannot be taken away or curtailed by virtue of death. Nature of right to receive the pension was considered by the Apex Court, in Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330 : AIR 1971 SC 1409. Their Lordships in un-equivocable terms laid down that right to receive the pension is a valuable right vesting in a Government servant; it cannot be curtailed and right to pension constituted "property" and any interference will be breach of Article 31(1) of the Constitution of India. The payment of pension is governed by the rules; it is not the discretion of the Government; a person could not be deprived of it in discretion if as per the rules is entitled to claim it. In Salabuddin Mohamed Yunus v. State of Andhra Pradesh, AIR 1984 SC 1905, it was laid down that pension does not depend upon the discretion but is governed by the rules and a person within such rule is entitled to claim it as of right. The right of pension is a vested right, it cannot be taken away. It was further laid down that right to receive pension does not depend upon the passing of the order, but it emanates from the rules. Pension is not a bounty payable at the sweet will and is a right vesting in the Government servant and was "property" under Article 31(1) read with Article 19(1)(f) of the Constitution of India. Pension was further held to be recognition of a fundamental right to live with dignity.
10. In Mukund Lal Bhandari and Ors. v. Union of India and Ors., AIR 1983 SC 2127, freedom fighters were held entitled to pension from the date of the preferment of the claim; whatever the date on which the proof of eligibility was furnished. The true spirit of working out such a scheme was pointed out.
11. In the instant case, it is apparent that Late Shri S.L. Jain did not receive the proper treatment; his application was suitably considered and allowed by the State Government, however, the same was not considered fit for grant of pension by the Central Government. Learned Counsel for petitioners submits that in the circumstances once the State recognised petitioner as freedom fighter, the application should have been allowed readily as the same considerations are involved and Central Government could not have taken a different view. To buttress the submission, learned Counsel places reliance on a decision of High Court of Madras in Marakkal v. Government of India rep. by its Secretary and Ors., AIR 1996 Madras 476, in which it was held that when the State Government has granted pension to the petitioner, opinion was expressed that Union of India was justified to refuse it.
12. In the instant case, the application was turned down on the ground that sons cannot claim the family pension; the petitioners were not claiming the family pension at all; they were claiming only the arrears of pension which would have been paid to Late Shri S.L. Jain had his application been allowed in his life time. To that extent, they were having the right to claim the arrears from the date of filing of application till the date of death of Late Shri S.L. Jain. Learned Counsel for the petitioners has rightly pressed into service the decision in Mohd. Sadiq Fani v. Dy. Commissioner, Doda and Ors., 1988(3) SLR 70, wherein right to receive the arrears of pension was held to be available to the legal representatives. Simply because it is a freedom fighter's pension, it cannot be treated any differently and if the pension was payable to a freedom fighter and it was wrongfully withheld, right to receive the arrears cannot be denied to the sons as the nature of the pension is a vested right and right akin to property as discussed above.
13. Coming to the next question whether owing to discrepancies, the application was liable to be dismissed. Firstly, this cannot be raised to be allowed as it does not form part of the reason while passing order (Annexure P-7) by Govt. of India on 6-4-2000. Moreover the certificate of the Deputy Collector indicates that Late Shri S.L. Jain was initially arrested on 5-9-1942 and remained in Sagar Jail till 14-10-1942 and was transferred to Central Jail, Jabalpur on 14-10-1942 where he remained confined upto 28-6-1943. The certificate issued by the Deputy Collector finds support by the letter of Superintendent of District Jail, Sagar, dated 7-8-82 (Annexure P- 3). He has mentioned the warrant No. 1712, by which Late Shri S.L. Jain was transferred on 14-10-1942 to Central Jail, Jabalpur simply on the ground that there are certain discrepancies occurred in the application and matter being old some of these documents were filed later on could not be a sufficient ground to discard the veracity and correctness of these certificates; there appears to be no good ground to discard them; particularly when the State Government has accepted the claim of the petitioner; that should have been a good and persuasive factor to the Union of India to accede to the prayer. As a matter of fact nature of pension is such which so many persons do not claim considering it is not befitting to the sacrifice done by them to the nation. The sacrifices cannot be weighed in terms of such a pension which is a meagre amount and cannot be compensatory to the yeoman service done by freedom fighters to the cause of nation due to which our head is held high and we are able to breath in the independence and carry our own flag high.
14. It is apparent from the certificates of Deputy Collector and Jail Superintendent that deceased Shri S.L. Jain was incarcerated for more than six months in jail during freedom struggle he was in receipt of State pension payable to freedom fighters; petitioners are entitled to the pension which the deceased would have received from the date of his moving application till his death.
15. Writ petition is allowed. The impugned order (Annexure P-7) is quashed. Writ of mandamus is issued directing the respondents to make the payment of arrears of pension which would have been paid to Late Shri S.L. Jain from the date of filing of his application till his death within four months from the date of the decision. Cost of the writ petition on parties.