Madras High Court
S. Ponnuswamy vs The Government Of Tamil Nadu on 28 February, 1990
Equivalent citations: AIR1991MAD88
ORDER
1. The prayer in the writ petition is as follows:--
"..... The petitioner herein prays that this Hon'ble Court may be pleased to issue a writ of certiorarified mandamus or any other appropriate writ, order or direction of like nature by calling for the records on the files of the respondent especially the order bearing No. 85/518/88-1 dated 10-2-1989 and quash the same and direct the respondent to pay the freedom fighter pension from the day the petitioner applied for the same within a reasonable period and pass such further or other order as this Hon'ble Court may deem fit and proper and render justice".
2. Petitioner was residing in Penang in Malaysia. During 1937, he joined the Indian National Army as Sepoy recruited by Netaji Subash Chandra Bose and he belonged to 2/9th Guerilla Regiment wilh Regd. No. 63595. He suffered imprisonment from 15-8-1946 up to the end of February, 1947. Along wilh him one Ponnusamy was also imprisoned and he is a recipient of State Pension. The petitioner had applied for pension under the Freedom Fighers, Pension Rules, 1968, but it was rejected by ihe respondent on the ground that the pension cannot be granted to the petitioner as he was residing outside Tamil Nadu. The petitioner returned to India and is permanenlly residing in Ramanatha-puram District. The petitioner has been making repeated representations to the Government for the grant of Freedom Fighers1 Pension. On 2-12-1987 a communication was addressed to the Collector of Ramanathapuram to enquire and report whether the petitioner joined Indian National Army and suffered imprisonment. The petitioner furnished necessary documents to show that he was in Ihe Indian National Army and was imprisoned during 1946^17. The petitioner also produced a co-prisoner's certificate. Since no reply was received, the petitioner made a representation on 30-1-1988. On 10-2-1989 the impugned order has been passed by the respondent rejecting the petitioner's claim for Freedom Fighers' Pension on the ground that his service in the Indian National Army has not been established beyond doubt. Hence, the petitioner has come forward with this petition stating that when his earlier application for the grant of pension was rejected, the only reason given was that the petitioner was residing outside Tamil Nadu and now a different reason is given in the impugned order for rejecting the petitioner's request for the grant of pension. According to the petitioner, his right to get pension cannot be rejected arbitrarily.
3. Notice of motion was ordered by me on 28-7-1989. Learned Additional Government Pleader has entered appearance on behalf of the respondent.
4. Learned counsel appearing for the petitioner states that the reason given by the respondent in the impugned order is far from satisfactory and it is wholly unsustainable. According to the learned counsel, the impugned order has been passed without affording any opportunity to the petitioner to prove with necessary documents that he is eligible for the grant of Freedom Fighters' Pension.
5. Mr. J. R. K. Bhavanandham, learned Addl., Govt., Pleader, though admits that the impugned order has been passed without any notice to the petitioner, he says that the grant of pension is discretionary and as such no notice is necessary in such a case.
6. I have considered the arguments of learned counsel on both sides. The Tamil Nadu Freedom Fighters' Pension is govern by the rules called "Tamil Nadu Freedom Fighters' Pension Rules" framed under G. O. Ms. No. 2064, Public (General C). Department, 28-9-1966. These Rules have come into effect from 1-10-1966. Under Rule 10.-, applications for the grant of pension under these rules should be sent to the Chief Secretary to Government, Public Department along with certificates obtained from the Jail Department as proof for having been sentenced to imprisonment or held under detention for not less than 3 weeks. Under Rule II, the Government may cause such enquiries as deemed necessary to be rnade regarding Ihe eligibility. Under Rule 12, on rcceipt of the report of enquiry and on satisfying themselves about the eligibility of the applicant for the pension, the Government shall make an order on each application either sanctioning pension or rejecting the same. Rule 13 states that the decision of the Government on all matters covered under these rules shall be final.
7. The Government has originally granted pension to freedom fighters who participated in the National Movement. In November, 1966, the Government decided that ex-Indian National Army personnel who participated in the Indian National movement should also be made eligible for the grant of pension and accordingly extended the scheme to them subject to certain conditions. One of the conditions is that an Ex-Indian National Army person who applies for the grant of pension shall produce a certificate from the All India Indian National Army Enquiry and Relief Committee to the effect that he served in the Indian National Army. In 1983, the Government passed G. O. M.S. No. 1442, Public (Political Pension II) Department dated 6-9-1983 in which a procedure to scrutinise the applications received from the Ex-Indian National Army Personnel was evolved. Under this G. O., a District Level Screening Committee for Ramanathapuram from which the petitioner hails was constituted and the Collector of Ramanathapuram is its Chairman. The Committee has to scrutinise the applications of Ex-Indian National Army personnel based on the original records and it may, if considered necessary, interview the applicants in person. The Committee shall record the basis on which it makes its recommendation. It is thus seen that a Committee has been formed to scrutinise the applications and recommend cases for the grant of Freedom Fighters' Pension to Ex-Indian National Army Personnel. But however, impugned order has been passed on the ground that the petitioner's service in the Indian National Army has not been established beyond doubt. In my view, before the impugned order is passed, it is incumbent upon the respondent to give notice to the petitioner and get necessary proof in support of his claim for pension. When the petitioner applied for pension, he enclosed a certificate. As stated already, one of the conditions for the grant of pension is that there must be a certificate from the All India Indian National Army Enquiry and Relief Committee to the effect that the applicant served in the Indian National Army. The petitioner herein has enclosed the said certificate issued by the said committee dated 21-8-1970. As such, it is improper on the part of the respondent to doubt about the genuineness of the certificate.
Before its genuineness is questioned, I think it is necessary that the petitioner should be given an opportunity to prove about the genuineness of the certificate. The respondent cannot decide about it unilaterally. It is significant to point out that the expenditure, for pension is from the contingent fund and it is debited to a new sub-head to be opened under the major head "Pensions and other retirement benefits and allowances" viz., "Gratuities to Political sufferers, their families and institutions".
When the pension amount is paid from out of the contingent fund of the State I think the petitioner has got a right at least to be heard before his claim is rejected on the ground that his service in Indian National Army has not been established beyond doubt. Only if an opportunity is given to the petitioner, he could prove that he had served in the Indian National Army. Though Rule 12 of the Tamil Nadu Freedom Fighters' Pension Rules does not contemplate an opportunity to be given before satisfying about the eligibility of the applicant for the grant of pension, I think, the principles of natural justice require that an opportunity has to be given before even a rejection is made. As such the impugned order is liable to be set aside.
8. Though the prayer in the writ petition as asked for cannot be granted, the impugned order is hereby set aside and the respondent is directed to pass final orders after affording reasonable opportunity to the petitioner within three months from the date of receipt of this order. The writ petition is ordered accordingly. No costs.
9. Order accordingly.