Uttarakhand High Court
State Of Uttarakhand And Others ... ... vs Smt. Mohini Devi on 2 March, 2023
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE CHIEF JUSTICE SHRI VIPIN SANGHI
AND
JUSTICE SHRI ALOK KUMAR VERMA
02ND MARCH, 2023
SPECIAL APPEAL NO.34 OF 2023
State of Uttarakhand and Others ... Appellants-Respondents
Vs.
Smt. Mohini Devi ......Respondent-Writ Petitioner
Counsel for the Appellants : Mr. S.S. Chaudhary, Brief
Holder.
Counsel for the Respondent : Mr. Dushyant Mainali,
Advocate.
JUDGMENT:(Per Shri Alok Kumar Verma, J.) Since the sufficient cause has been shown by the appellants for the delay of 89 days in preferring the present Appeal, and, respondent has not opposed the Delay Condonation Application, the delay is hereby condoned. Delay Condonation Application is disposed of, accordingly.
2. The brief facts which are required to be stated are that late Shri Mathura Dutt Kabdal, the husband of the writ petitioner, was a freedom fighter, who participated in the 2 freedom struggle against British Rule in India. On 22.12.1978, husband of the petitioner died. On 04.11.1991, late Shri Mathura Dutt Kabdal was conferred the status of freedom fighter and the Additional District Magistrate, Nainital issued a certificate (Annexure No. 3 to the writ petition) in this regard. After death her husband, petitioner applied for family pension as dependent of freedom fighter. On 27.03.2018, the Joint Magistrate, Lal Kuan obtained report from all concerned and submitted his report to the District Magistrate, Nainital along with documents of the petitioner. On 26.03.2018, petitioner was advised to again submit her particulars with District Administration, Nainital. On 25.10.2018, upon receipt of the letter issued by the District Magistrate, a decision was taken by the Department of Home, refusing the proposal of granting freedom fighter successor pension to the petitioner.
3. Aggrieved by the said order dated 25.10.2018, passed by respondent no.4, a Writ Petition [Writ Petition (M/s) No.1858 of 2019, titled, "Mohini Devi vs. State of Uttarakhand and Others"] was filed with the following reliefs:-
"(i) Issue a writ of certiorari quashing the order dated 25.10.2018 passed by respondent no.4. 3
(ii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to grant the petitioner the benefit of family pension treating her as successor of Freedom.
(iii) Issue any other or further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(iv) Award the cost of the petition in favour of the petitioner."
4. After hearing learned counsel for both the parties, the said Writ Petition has been allowed on 20.10.2022. Allowing the writ petition, learned Single Judge has quashed the impugned order dated 25.10.2018, passed by respondent no.4, and, respondents were directed to grant benefit of family pension to the petitioner treating her as a successor of freedom fighter from the date of her application within a period of three months from the date of production of certified copy of the order.
5. Aggrieved by the said judgment and order dated 20.10.2022, present Special Appeal has been filed.
6. Mr. S.S. Chaudhary, learned Brief Holder, submitted that the husband of the respondent was punished till the rising of the court along with a fine of Rs.20/- 4 (Twenty), and, in default of payment of fine, he was directed to undergo rigorous imprisonment for a period of two months under Section 38 (5) of the Defence of India Rules, 1939. According to Mr. S.S. Chaudhary, in the certificate dated 04.01.1991, issued by the then Additional District Magistrate, Nainital, it was mentioned that late Shri Mathura Dutt was punished along with a fine of Rs.20/-, but there was no mention regarding depositing fine or imprisonment, in default of fine. As the case of the petitioner was not covered under Rule 2-A of the Freedom Fighter Rules, 1975 (in short, "Rules, 1975"), therefore, proposal of granting freedom fighter successor pension to the petitioner was rejected.
7. Mr. S.S. Chaudhary, Advocate, further submitted that Rule 2-A of the said Rules, 1975 provides that the freedom fighter means a person who had participated in the movement for freedom and due to the participation in the said movement, he had been confined minimum for two months or he had been remained in jail for a minimum period of three months as an accused or had been received minimum ten sticks or had been declared absconder or he had received injury due to gunshot or he had scarified his life for freedom.
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8. In Gurdial Singh vs. Union of India and Others, 2001 (8) SCC 8, while dealing the case of a claim of a freedom fighter and who was subjected to harassment and embarrassment by the respondent authorities for preferring his claim for the grant of pension under the scheme known as Freedom Fighters Pension Scheme, 1972, the Hon'ble Supreme Court observed that the scheme was introduced with the object of providing grant of pension to leaving freedom fighters and their families and to the families of martyrs. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also be kept in mind that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country. Hon'ble Supreme Court has held that the standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be 6 covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of 'beyond reasonable doubt'. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence.
9. Learned Single Judge has observed that from the circumstances/evidence available in this case, it is apparent that husband of the petitioner had undergone rigorous imprisonment for two months, as a default sentence.
10. Having heard learned counsel for the parties, this Court does not find any good ground to interfere with the impugned judgment.
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11. For the reasons afore-stated, we dismiss the present Special Appeal at the admission stage. No order as to costs.
________________ VIPIN SANGHI, C.J.
___________________ ALOK KUMAR VERMA, J.
Dated: 02.03.2023 JKJ/Pant