M.Karupayee vs The Government Of India

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Madras High Court

M.Karupayee vs The Government Of India

2.The petitioner is a widow of Late S.Muthanna Konar, who claims to be a freedom fighter participated in the freedom struggle and therefore, the petitioner's husband was entitled to pension that was payable to the freedom fighter as per Swatantrata Sainik Samman Pension Scheme hereinafter referred as to SSSP 1980. As the petitioner's husband was not paid the said pension, the petitioner as his widow applied for pension to the respondent and that was rejected by the respondent, by order, dated 22.10.1999, which is challenged in this writ petition.

3.The specific case of the petitioner was that her husband Late S.Muthanna Konar, participated in the freedom struggle and he went underground for about 9 months to escape jail and in the book, "who is who of freedom fighter" the name of the petitioner's husband was also mentioned and in the book known as "Madurai District Freedom Fighters Almanac" mention was made about the petitioner's husband stating that he joined Congress in the year 1928 after discontinuing his studies and during the Quit India Movement in the year 1942, action was taken against him by the Government and he was sent out from the place where he was residing and he was also actually participating in the freedom struggle and his house was also searched.

4.It is further stated that during the Quit India Movement, persons like the petitioner's husband, participated and went underground and encouraged the other people in that freedom struggle. Therefore, the petitioner's husband applied for freedom fighters' pension on 14.10.1981 enclosing a certificate of Mr.T.Kakkan, who was also well known freedom fighter and the Government of Tamil Nadu had recommended his name for the pension as per the above SSSP Scheme, by order, dated 07.10.1982 and despite the same, the claim of the petitioner's husband was rejected and her husband submitted a further representation on 29.04.1990 enclosing certificates from veteran freedom fighters, namely Late Sri P.Kakkan and R.Chidambara Bharathi. Nevertheless, no action was taken by the respondent and the petitioner's husband also died on 26.11.1990 and the petitioner thereafter made application on 02.08.1997 as a widow of freedom fighter claiming pension and enclosed the order of Judicial Magistrate, Melur, wherein it was stated that the Records relating to the warrant issued in the name of the husband of the petitioner was not made available and the application of the petitioner was rejected on the ground that it was not recommended by the Government. Under these circumstances, this writ petition is filed for the above relief.

5.The respondent filed a counter stating that under SSSP Scheme, the applicant can be considered only when the application was duly recommended by the State Government and in this case, it was not recommended by the State Government and the petitioner directly applied to the Central Government and it is contrary to para '6' of the said Scheme and as per the para '10', the claim of the applicant will be scrutinised by the State Government/Union Territory Administration in consultation with the State Advisory Committee on the basis of the copy of application submitted to them and after the receipt of State Verification and entitlement to pension report, the claim of the applicant will be scrutinised and if found eligible, pension will be granted.

6.Further, as per letter, dated 12.08.1977 issued by the Ministry only on the basis of the State Government's verification and recommendation, pension can be considered and in case of no such report from the State Government, the case should be referred to the State Government and considered only after the receipt of the recommendation.

7.It is further contended that the petitioner has not produced the Non- Availability of Record Certificate (NARC) along with two Co-Prisoners' Certificate (CPC) and in the case of underground suffering, documentary evidence by way of Court's/Government's order proclaiming the applicant as an offender has to be produced and in the absence of any such record NARC from the concerned State Government Official along with a Personal Knowledge Certificate(PKC) from a prominent freed fighter, who had undergone imprisonment for a period of five years the application cannot be considered.

8.It is further stated that though the State Government recommended the petitioner's husband's request for pension, the same was not considered as he failed to produce the satisfactory evidence regarding the period of underground. Though, the petitioner's husband submitted certificates from Late P.Kakkan and Sivaraman Ambalam, those certificates were not accepted as the applicant/ the petitioner's husband has not submitted the NARC from the State Government and the certificates issued by the two freedom fighters referred to above were not in the prescribed form and therefore, the case of the petitioner cannot be considered.

9.Mr.G.Prabhu Rajadurai, the learned counsel appearing for the petitioner, submitted that the respondent without appreciating that the petitioner's husband, gave his life for the freedom of this country and suffered during his life time, mechanically rejected the claim of the petitioner's husband on technical grounds.

10.It is submitted that the State Government has recommended the claim of the petitioner's husband, by letter, dated 07.10.1982 and therefore, it is not open to the respondent now to contend that the petitioner's application was not recommended by the State Government. According to the learned counsel appearing for the petitioner, the petitioner is claiming pension as a widow of freedom fighter and during the life time of her husband, he was not paid freedom fighters' pension and it was wrongly withheld and before he could agitate and get the same, he died and as a widow, the petitioner has filed the application and therefore, the recommendation made by the State Government for the petitioner's husband should be taken into consideration for considering the case of the petitioner.

11.Further, the case of the petitioner was rejected on the ground that the petitioner's husband had submitted in his affidavit as follows:- "...on 16.08.1942, the Headman reported the matter to the Police. The Police had shooting orders made vigorous search for me. Being afraid of my life and limb, I was compelled to remain underground for about 9 months. Yet I carried works to collect men and do all acts to paralyse the British in India. I do not suffer imprisonment......" and the above declaration was voluntary in nature and therefore, not eligible for grant of SSSP scheme.

12.According to the learned counsel appearing for the petitioner, Mr.G.Prabhu Rajadurai, the petitioner has produced NARC from the Judicial Magistrate, Melur and as per the scheme, as such the record is sufficient to grant pension and the petitioner's husband also enclosed the certificate given by Late P.Kakkan Ex.M.P and M.Sivaraman Ambalam (Ex.M.L.A) and also submitted the materials, viz., publication made in those period about the role played by the petitioner's husband in freedom struggle and if those documents were taken into consideration, it would amply prove that the petitioner's husband was a freedom fighter and he went underground for more than nine months and he was eligible for pension under the said scheme and as a widow of late freedom fighter, the petitioner is also eligible to pension.

13.Mr.G.Prabhu Rajadurai, the learned counsel appearing for the petitioner, relied upon the judgment reported in 2004 WLR 606 [K.Appanraj vs. The Secretary to Government of India & others], wherein in similar circumstances, this Court has held that strict proof regarding the underground for more than six months cannot be insisted.

14.Further, in the recent judgment rendered in W.P.No.17403 of 2009 dated 04.08.2010, in the case of R.Murugamalai vs. Union of India, Rep by its Secretary to Government, Ministry of Home Affairs, Lok Nayak Bhawan, Freedom Fighters' Division, New Delhi 110 003, Justice D.Hariparanthaman, discussed the various provision of the SSSP scheme and directed the respondent to consider the review application made by the petitioner in that case. He, therefore, submitted that the petitioner is also entitled to pension and the respondent may be directed to pay the same.

15.Mr.K.Ramakrishnan, the learned Standing Counsel for the Central Government, reiterated the allegations made in the counter and submitted that in the absence of any proof regarding NARC, the case of the petitioner cannot be considered and without any recommendation of the State Government, the respondent cannot consider the application of the petitioner.

16.I have given my anxious consideration to the submission made by both the counsels.

17.It is seen from the impugned order that the case of the petitioner was not considered as no proof regarding the underground for more than six months was produced by the petitioner's husband or by the petitioner.

18.It is admitted that by proceedings, dated 07.10.1982, the State Government has recommended the payment of pension to the petitioner's Late husband, S.Muthuanna Konar, under SSSP Scheme. It is seen from the said proceedings that the petitioner produced the certificate from Mr.P.Kakkan, a prominent freedom fighter, testifying to the petitioner's Late husband underground sufferings covering the above period for not less than six months in connection with the freedom of the Nation and also issued the certificate recommended to sanction SSSP scheme to Late S.Muthanna Konar. Therefore, the first ground of attack by the respondent that there was no recommendation by the State Government for the SSSP scheme falls to the ground.

19.The State Government recommended the case of the petitioner's Late husband and the petitioner is only stepping into the shoes of her Late husband and therefore, the recommendation of the State Government for her Late husband can be taken into consideration as a recommendation for the petitioner.

20.In this case, the petitioner has enclosed the certificates issued by Late Mr.P.Kakkan, who was also well known freedom fighter and who was the former Minster of Tamil Nadu and former Member of Parliament. Therefore, there is no reason to suspect or question the certificate issued by Late Mr.P.Kakkan and that certificate should have been taken into consideration by the respondent, while considering the case of the petitioner and in the certificate issued by Late Mr.P.Kakkan it was mentioned that the petitioner's husband was searched for by the Police, but he remained underground, canvassed volunteers and guided them to carry the Freedom Fight Movement. According to me, no further proof is necessary to prove that Late S.Muthana Konar had gone underground.

21.Further, the State Government Officer has recommended the case of the petitioner and it is seen from the proceedings of the District Collector, Madurai, dated 26.07.2006, the District Review Committee has also recommended the case of the petitioner. As stated supra, the case of the petitioner was rejected only on the ground that there was no proof filed by the petitioner in the prescribed form regarding the underground period of the petitioner's husband and NARC was not in the prescribed form.

22.In this case, it is pertinent to refer to the judgment of the Honourable Justice Mr.D.Hari Paranthaman, rendered in W.P.(MD)No.17403 of 2009 referred to above. The learned Judge extracted the clause 4(b)(2) of explanation to Clause 4 of the SSSP scheme and clause(9) relating to proof of claims as follows:-

"4. WHO IS ELIGIBLE?

For the purpose of grant of Samman pension under the scheme, a freedom fighter is:-

(a)A person who had suffered a minimum imprisonment of six months in the mainland jails before independence. However, ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India.

(b)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.

EXPLANATION

1.Detention under the orders of the competent authority will be considered as imprisonment.

2.Period of normal remission upto one month will be treated as part of actual imprisonment.

3.In the case of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered.

4.Broken period of imprisonment will be totalled up for computing the qualifying period.

(b)A person who remained underground for more than six months provided he was:

1.a proclaimed offender; or

2.one on whom an award for arrest/head was announced;

3.one for whose detention order was issued but not served."

10.In view of the explanation to clause 4 of the Scheme, a person who remained underground for more than 6 months are also entitled to pension under the Scheme. Clause 9 of the Scheme is also relevant and the same is extracted hereunder.

"9.HOW TO PROVE THE CLAIMS (EVIDENCE REQUIRED) The applicant should furnish the documents indicated below whichever is applicable.

a.IMPRISONMENT/DETENTION ETC.

Certificate from the concerned jail authorities, District Magistrates or the State Government in case of non-availability of such certificates co- prisoner certificates from a sitting M.P. or M.L.A. or from an ex-M.P. or ex- M.L.A specifying the jail period (Annexture-I in the application form).

b.REMAINED UNDERGROUND

(i)Documentary evidence by way of Court's/Government orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention.

(ii)Certificates from veteran freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non-availability.

(c)INTERMENT OR EXTERNMENT

(i)Order of interment or externment or any other corroboratory documentary evidence.

(ii)Certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available.

(Annexure II in the application) Note: The Certifier veteran freedom fighters in respect of underground suffering, internment/externment and the applicant should belong to the same administrative unit before the reorganisation of States and their area of operation must be the same."

23.The learned Judge also relied upon the Honourable Supreme Court Judgment reported in 2001(8)SCC 8, in the case of Gurdial Singh vs. Union of India and also relied upon the judgment reported in 2004 WLR 606 [K.Appanraj vs. The Secretary to Government of India & others] and the judgment reported in CDJ 2008 MHC 5374 [The Government of India vs. T.R.T.Thirumalaivasi and another] and held that the respondent was not correct in stating that the petitioner failed to produce any acceptable documentary evidence relating to his Late husband sufferings, when she produced certificates from the freedom fighters, who are in receipt of pension from the respondent to the effect that the petitioner's Late husband was remained underground during 1942 to 1944.

24.In this case, the Veteran freedom fighter, Late P.Kakkan, testified that the petitioner's husband went underground though the period underground was not stated. According to me, considering the fact that the petitioner's husband went underground and he was admittedly, a freedom fighter and the State Government has recommended the petitioner's husband case for pension, at this point of time, the respondent should not have rejected the claim of the petitioner on the ground that there is no proof produced by the petitioner that her husband went underground for more than six months.

25.As observed by the Honourable Supreme Court in the judgment reported in (2001)8 SCC 8, [Gurdial Singh vs. Union of India], the case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of beyond reasonable doubt.

26.As rightly held by the learned Judge in W.P.(MD)No.17403 of 2009 referred to above, if the certificate by a veteran freedom fighter is issued stating that the concerned person remained underground during the freedom struggle that itself is sufficient to grant pension.

27.Further in the judgment reported in 2004 WLR 606, in the case of K.Appanraj vs. The Secretary to Government of India & others, this Court has held that "the object of the Scheme is to provide pension to freedom fighters and their families. When the scheme is introduced to benefit the freedom fighters, the entitlement cannot be scuttled by mere technicalities. Provisions of the Scheme shall always be interpreted and given effect only in favour of the freedom fighters. If claims are negatived on mere technicalities, we will be failing in our duty to respect those who had undergone the ordeal and misery in getting the freedom."

28.Considering all these facts, the order of the respondent rejecting the claim of the petitioner is illegal and is liable to be set aside and accordingly, it is hereby set aside. The respondent is directed to grant pension to the petitioner under SSSP scheme from the date of the application within a period of twelve weeks from the date of receipt of copy of the order. Accordingly, this writ petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.

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Madras High Court