SUPREME COURT OF INDIA
Union of India
Vs
Avtar Singh
Appeal (Civil) 3019 of 2006 (Arising Out of Slp (C) No. 5367 of 2006)
(Arijit Pasayat and L. S. Panta, JJ)
18.07.2006
ARIJIT PASAYAT, J.
Leave granted.
The Union of India calls in question legality of the judgment rendered by a
Division Bench of the Punjab and Haryana High Court dismissing the Letters
Patent Appeal filed by it. Learned Single Judge whose order was assailed before
the Division Bench had held that the respondent was entitled to freedom
fighters pension under the Swatantrata Sainik Samman Pension Scheme, 1980 (in
short 'scheme').
Background facts in a nutshell are as follows:-
The respondent claimed that he had participated in the freedom struggle of the
country and had suffered imprisonment and was, therefore, entitled to pension
under the scheme. Earlier there was a Freedom Fighter's Pension Scheme, 1972
(hereinafter referred to as the '1972 scheme'). The later Scheme was introduced
in 1980. Though initially pension was granted to the respondent, by order dated
18.12.2000, it was indicated on inquiry that the respondent had indicated two
different versions while claiming pension under the Scheme. In the application
accompanied by an affidavit filed before the State of Punjab, the period of
imprisonment was indicated to be 20.10.1942 to 20.10.1943. But a different
period i.e. 20.10.1942 to 15.8.1943 was indicated in the application and the
affidavit filed before the Union. It was also noted that the respondent had
accepted the above position to be correct, but attributed the same to his
illiteracy. The pension sanctioned to him was cancelled and he was directed to
refund the amount which had already been paid to him. A writ petition was filed
before the Punjab and Haryana High Court. It was initially dismissed. The
matter was carried before this Court in Civil Appeal No.8388 of 2001. Since the
High Court's order was practically unreasoned, this Court directed the High
Court to hear the matter afresh and dispose of the same by a reasoned order.
The matter was heard afresh. The High Court noted the submissions of the
present appellant that one of the persons who had certified the imprisonment of
the respondent as a co-prisoner was black- listed. He had issued certificates
to a large number of persons. Though the High Court accepted that there was
difference in the dates indicated in the two affidavits, it was held to be
inconsequential. Accordingly, direction was given for grant of pension. The matter
was carried in appeal by a Letters Patent Appeal, which as noted above, was
dismissed.
In support of the appeal, learned counsel for the appellant submitted that the
application filed by the respondent was incomplete. The requirement in law is
that jail certificate is to be filed. In the instant case no such certificate
was filed and on the contrary certificate from a person whose credentials were
doubtful was filed. The jail certificate in support of jail suffering has to be
based on official records of the jail. In case jail certificate is not
available, a certificate called Non-Availability of Records Certificate
(shortly known as NARC) from the concerned authorities has to be filed. Only if
such certificate is filed the Co-prisoners Certificate from two co-prisoners of
the enumerated category can be considered. Though the High Court relied on
Gurdial Singh vs. Union of India and Ors. to hold that the strict rules
of evidence are not to be applied in such cases, the true parameters to be adopted
have been indicated in W.B. Freedom Fighters' Organisation v. Union of India
and Ors.
Since the authorities on consideration of the material on record held that the
respondent was not entitled to pension, the High Court should not have
interfered in a writ petition, more particularly, when disputed questions of
fact are involved.
Learned counsel for the respondent in response submitted that the requirement
in law is imprisonment for six months. If facts stated in either of the
certificates are taken into account, the period indicated is more than six
months. A person who is practically illiterate and is of advanced age cannot be
expected to remember all the details. The High Court has taken noted of these
facts and, therefore, no interference is called for.
The object of the scheme was highlighted by this Court in Mukundlal Bhandari v.
Union of India and Ors. 1. The same reads as
follows:
"The object was to honour and where it was necessary also to mitigate
the sufferings of those who had given their all for the country in the hour of
its need. In fact, many of those who do not have sufficient income to maintain
themselves refuse to take benefit of it since they consider it as an affront to
the sense of patriotism with which they plunged in the freedom struggle. The
spirit of the scheme being both to assist and honour the needy and acknowledge
the valuable sacrifices made, it would be contrary to its spirit to convert it
into some kind of a programme of compensation. Yet that may be the result if
the benefit is directed to be given retrospectively whatever the date the
application is made. The Scheme should retain its high objective with which it
was motivated..."
Again in Gurdial Singh's case (supra), this Court observed:
"It should not be forgotten that the persons intended to be covered by
the 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...."
We are in respectful agreement with the view expressed in Mukundlal's and
Gurdial Singh's cases (supra). The genuine freedom fighters deserve to be
treated with reverence, respect and honour. But at the same time it cannot be
lost sight of that people who had no role to play in the freedom struggle
should not be permitted to benefit from the liberal approach required to be
adopted in the case of the freedom fighters, most of whom in the normal course
are septuagenarians and octogenarians.
These aspects were highlighted in Bhaurao Dagdu Paralkar v. State of
Maharashtra and Ors.
In W.B. Freedom Fighters' Organisation's case (supra), it was inter alia
observed as follows:
"2. the Government of India had announced a scheme known as the
Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter called "the
Scheme") under which freedom fighters were to receive pension as mentioned
in the Scheme. Any person who had suffered a minimum imprisonment of six months
in the mainland jails before independence or in the case of SC/ST freedom
fighter who had suffered minimum imprisonment for three months is eligible to
receive the pension. The manner of proving claims is as follows:
"The applicants should furnish the documents indicated below whichever is
applicable in order to prove his claimed sufferings for grant of pension under
the Scheme:
(A) Imprisonment/detention:
Certificate from the jail authority, District Magistrate or the State
Government concerned, indicating period of sentence awarded, date of admission,
date of release and reasons for release, a non-availability of records
certificate (NARC) from the authorities concerned along with co-prisoners'
certificates (CPC) as under:
(i) Two co-prisoners' certificates from the freedom fighter pensioners who had
a proven jail suffering of one year
Or
(ii) One co-prisoner's certificate from a sitting MP or MLA or from an ex-MP or
an ex-MLA specifying his jail period and that of the applicant (Annexure I in
the application form).
(B) Documentary evidence by way of court's/government's orders proclaiming the
applicant as an offender, announcing an award on his head or for his arrest or
ordering his detention. In the absence of such certificates from official
records, a non-availability of records certificate from the authorities
concerned along with a certificate from a prominent freedom fighter who had
undergone imprisonment for a period of at least two years or more."
Thus, it is to be seen that the applicant has to furnish a certificate from the
jail authority, District Magistrate or the State authorities indicating the
period of sentence awarded, date of admission, date of release and reasons for
release and in the absence of such a certificate a non-availability of records
certificate(NARC) along with a co-prisoners' certificate (CPC), namely, two
certificates from freedom fighters who had a proven jail suffering for one year
or one certificate from a sitting MP or MLA or an ex-MP or ex-MLA. In case of
persons having gone underground documentary evidence by way of proclamation of
the applicant as an offender, announcing an award for his arrest or an order of
detention. In the absence of official record a certificate from a prominent
freedom fighter, who had undergone imprisonment for a period of at least two
years, was to be given.
17. Having heard the parties, even presuming that the petition was in effect
for payment of pension, we find that it is not possible for this Court to
interfere as the Committee has come to a conclusion on the basis of available
material. The decision of the Committee cannot be said to be perverse or one
which no reasonable person could arrive at. We, therefore, see no reason to
interfere."
Above being the position , the High Court was not justified in granting relief
to the respondent-writ petitioner. One of the basic requirements was a
certificate to the effect that the jail records were not available unless jail
certificate was filed. That, as noted above, was not the case here. On that
score the application was defective.
We, therefore, allow the appeal, set aside the order passed by the learned
Single Judge and the Division Bench. However, the pension which has already
been paid to the respondent shall not be recovered. It is made clear that if
the respondent files requisite authentic documents and files a fresh
application, the same shall be duly considered, uninfluenced by the findings
recorded in this case on the factual scenario involved. No costs.