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PETITIONER: R. NARAYANAN

       Vs.

RESPONDENT: UNION OF INDIA AND ANR.

DATE OF JUDGMENT25/10/1989

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) OJHA, N.D. (J)

CITATION:  1990 AIR  746            1989 SCR  Supl. (1) 720  JT 1989  Supl.    292    1989 SCALE  (2)1031

ACT:     Freedom   Fighters   Pension   Scheme:   Para   4,   Cl. 3(e)--Freedom  Fighter--Permanent  loss  of  vision  of  one eye--Denial of pension-Validity of.     Words and Phrases: ’Permanent incapacitation’--Interpre- tation  of--Para  4,  Cl.  3(e),  Freedom  Fighters  Pension Scheme.

HEADNOTE:     Clause  3(e) of Para 4 of the Swatantrata Sainik  Samman Pension Scheme of the Government of India entitles a freedom fighter  to pension for having become permanently  incapaci- tated during firing or lathi charge in the freedom struggle.     The appellant applied for grant of pension on the ground that  he had suffered permanent loss of vision in  his  left eye due to brutal lathi charge by the police against freedom fighters. His claim of permanent loss of vision in the  left eye  was duly certified by Government doctors. The  District Collector  after  making a detailed enquiry,  certified  the claim  of the appellant as a bona fide one  and  recommended his  case  for grant of pension. The State  Government  also appended their recommendation. The Ministry of Home Affairs, however, declined to grant pension on the view that loss  of vision  in one eye did not amount to  permanent  incapacita- tion.     A  single Judge of the High Court dismissed  appellant’s writ  petition and a writ appeal against the said order  was also dismissed by a Division Bench.     In  this appeal by special leave, it was  contended  for the  respondents that the incapacitation under  clause  3(e) must not only be permanent but it must also be a total  one, and since the appellant had not lost vision in both the eyes the  incapacitation, though permanent, was only partial  and not  total;  and that the petitioner had not  been  able  to produce  any documentary evidence from official  records  of the relevant period in support of his claim. 721 Allowing the appeal,     HELD: 1.1 The words used in clause 3(e) of Para 4 of the Pension  Scheme  are  "permanently  incapacitated"  and  not ’permanently  totally  incapacitated". The measure  of  test thus laid down by the clause is the permanent nature of  the

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incapacitation  and not the total nature of the  incapacita- tion. If clause (e) were to be interpreted to include  total incapacitation then a freedom fighter who has lost a leg  or an  arm  cannot  claim payment of pension on  the  basis  of permanent  incapacitation  inasmuch  as  the  incapacitation suffered by him is not of both the legs or both the arms. It would be height of injustice to freedom fighters to construe clause (e) in the said manner. 1724F; 725A-B]     1.2  In  view of the certificate issued to  him  by  the Government doctors that the appellant had suffered permanent incapacitation  of his left eye due to lathi blows  received by him during the freedom struggle and the State  Government authorities  having,  after due enquiry, accepted  the  bona fides of the appellant’s claim and recommended his case  for grant  of  pension  the respondents were  not  justified  in refusing  to  grant  him pension under  clause  (e)  of  the Scheme. [724G, 726C, 725E]     2.  No  one can really expect official records  to  have been preserved for a period of 40 years to prove the  treat- ment  given to a freedom fighter for the injuries  sustained by  him  during the freedom struggle. Hence,  the  objection relating to non-production of official records of the reley- ant  period  by the appellant to prove  the  sustainment  of injury  by him .deserves outright rejection as well as  out- right condemnation. [726B-C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4496  of 1989.     From  the  Judgment  and Order dated  15.4.1986  of  the Madras High Court in Writ Appeal No. 411 of 1986. C.K. Sucharita for the Appellant.     B.  Dutta,  Additional Solicitor General,  (N.P.),  P.P. Singh and Mrs. Sushma Suri for the Respondents. The following Order of the Court was delivered: Delay condoned. 722     Leave granted. Heard counsel for the parties. The appel- lant,  who  is a freedom fighter was refused  the  grant  of pension  under the Swatantrata Sainik Samman Scheme  by  the Ministry  of  Home  Affairs, Union of India  and  hence  the appellant approached the High Court for the issue of a  writ of  certiorarified mandamus. The appellant’s  writ  petition was dismissed by a learned single Judge and the writ  appeal against  the  said order was also dismissed  by  a  Division Bench. Hence the present appeal by special leave.     Initially, the appellant sought the grant of pension  on the  ground that as a freedom fighter he was kept in  police custody  for fifteen days and after conviction he  underwent imprisonment  for three and a half months. Since  under  the Freedom Fighters Pension Scheme, a freedom fighter must have undergone  a minimum period of inprisonment for  six  months for  his participation in the freedom struggle in  order  to get  pension  under  that head, the  appellant  was  refused pension.  Thereupon,  he  applied for grant  of  pension  on another  ground viz. that he had suffered permanent loss  of vision  in  his left eye due to brutal lathi charge  by  the police  against freedom fighters. The appellant’s  claim  of permanent loss of vision in the left eye was duly  certified by Government doctors. The District Collector, after  making a detailed enquiry, certified the claim of the appellant  as a  bona fide one and recommended his case for grant of  pen- sion by letter dated 13.9.84.

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   Accepting the report of the Collector, the Deputy Secre- tary  to the Government of Tamil Nadu  addressed  respondent No. 2 as under:               "It is seen from the verification report  that               Thiru  R. Narayanan, the freedom  fighter  has               been permanently physically handicapped due to               his involvement in the freedom struggle of the               nation.  In the circumstances stated above.  I               am directed to request that the Government  of               India may kindly be moved to sanction  Swatan-               trata  Sainik  Samman  Pension  to  Thiru   R.               Narayanan of Salem District."     In  spite of the medical certificates issued by  Govern- ment doctors and the recommendations of the District Collec- tor and the State Government for grant of pension under  the S.S.S. Pension Scheme, the Ministry of Home Affairs declined to grant pension to the appellant on the ground that "it  is not  possible to grant Samman Pension in terms of  permanent incapacitation, hence your case stands rejected" by communi- cation  dated  30.4.85.  It was in  such  circumstances  the appellant 723 moved  the High Court of Madras for the issue of a  writ  of certiorarilied mandamus but failed to meet with success.     On  notice  being issued to the respondents,  a  counter affidavit has been filed on behalf of the Union of India  by Shri  Kishan  Chand, Under Secretary, Ministry of  Home  Af- fairs.  In the counter-affidavit it has been stated as  fol- lows:               "The  alleged incapacity of his losing  vision               of  one eye as a result of lathi  blow  during               the  freedom  struggle is  not  considered  as               permanent incapacitation as contemplated under               clause  3(e) under para 4 of the Scheme  under               the  heading  ’who is eligible’. A  person  is               eligible  for the pension under the Scheme  if               he  became  permanently  incapacitated  during               firing  or  lathi charge which  would  mean  a               person,  in  such  a case,  who  has  suffered               complete loss of eye sight." .......................................               "The  case of the petitioner has been  consid-               ered  and correctly rejected as per the  terms               of  Scheme, the petitioner not being  eligible               for pension. Moreover, the petitioner has  not               been able to produce any documentary  evidence               from  official records of the relevant  period               in  support of his claim of loss of vision  in               one  eye. In any case, the  Government  having               decided  as a policy in not treating  loss  of               one  eye as permanent incapacitation,  a  dis-               criminatory decision cannot be taken in favour               of the petitioner."     Learned  counsel for the appellant urged before us  that the respondents are not justified in construing clause  3(e) of Para 4 of the Pensions Scheme to mean that the  incapaci- ty,  besides being permanent should also be of a  total  na- ture,  and  as such the denial of pension to  the  appellant under  clause  (e)  is unjust. Under the  Scheme  a  freedom fighter  is eligible to receive pension if he satisfies  one of the following clauses viz.               (a) Had suffered a minimum imprisonment of six               months (three months in the case of women);               (b) Had remained underground for more than six               months provided

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             (i) he was a proclaimed offender; or               724               (ii)  he  was a person on whom  an  award  for               arrest had been announced or;               (iii)  he was a person against whom  detention               order had been issued but not served.               (c) Had been interned in his home or  externed               from  his  district  provided  the  period  of               internment/externment  was for six  months  or               more.               (d)  Had his property confiscated or  attached               and  sold due to participation in the  freedom               struggle;               (e)   Had  become  permanently   incapacitated               during firing or lathi charge;               (f) Had lost his job (Central or State Govern-               ment)  and been thus deprived of his means  of               livelihood on account of his participation  in               the National movement."     We  are  now concerned only with the  interpretation  of clause  (e) of the Scheme. The clause only refers to  perma- nent incapacitaton due to firing or lathi charge and not  to total incapacitation. The respondents would however take the stand that the incapacitation must not only be permanent but it must also be a total one. Hence according to them,  since the  appellant  has not lost vision in both  the  eyes,  the incapacitation,  though  permanent is only partial  and  not total  and  as such he is not eligible to grant  of  pension under clause (e) of the Scheme.     The  interpretation given by the respondents  to  clause 3(e) of Para 4 cannot be sustained because the words used in the  clause are permanently incapacitated’ and  not  ’perma- nently totally incapacitated.’ If the stand of the  respond- ents  is  to be accepted, it would be opposed to  the  plain meaning  of the words and result in addition of more  condi- tions to the clause what the framers of the Scheme have laid down.  It  cannot be disputed, in view of  the  certificates issued  to him by the Government doctors that the  appellant has suffered permanent incapacitation of his left eye due to lathi blows received by him during the freedom struggle. The question would then be whether that incapacity would satisfy the  requirement  of clause (e) or not. As  already  stated, clause  (e) refers only to permanent incapacitation and  not total  incapacitation  of a permanent nature.  It  therefore follows 725 that  the  measure of test laid down by the  clause  is  the permanent  nature  of the incapacitation and not  the  total nature of the incapacitation. If clause  (e) is to be inter- preted  in the manner set out in the  counter-affidavit,  it would follow that a freedom fighter who has lost a leg or an arm  cannot claim payment of pension on the basis of  perma- nent incapacitation inasmuch as the incapacitation  suffered by him is not of both the legs or both the arms. It would be the  height  of  injustice to freedom fighters,  who  are  a diminishing lot, to construe clause (e) in the said  manner. Highly  inequitable therefore it would be for the  appellant to  be denied pension under the Scheme because he  has  suf- fered  loss  of vision only in one eye and not in  both  the eyes.  The  respondents have failed to see  that  under  the Scheme  if a freedom fighter had undergone  imprisonment  or had  been underground for a minimum period of six months  he can  be  granted pension. In such circumstances  can  it  be contended  that a person who has permanently lost his  power of vision in one eye due to firing or lathi charge cannot be

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granted  pension unlike a person who has been in prison  for six  months  or had remained underground for six  months  in order to evade arrest.     The  Scheme has been formulated with a view to  acknowl- edge  the  services  rendered to the  country  by  patriotic citizens during the freedom movement and who had suffered at the hands of the British Rulers in one way or the other  and to compensate them in some measure for their sacrifices  for the  sake of the country. The respondents are therefore  not justified  in  refusing to grant pension  to  the  appellant under clause (e) of the Scheme on the ground that the perma- nent  incapacitation  suffered by him does not  satisfy  the requirements of clause (e) of the Scheme. The learned Single Judge  and the Division Bench of the High Court,  while  re- jecting  the  Writ  Petition and Writ Appeal  filed  by  the appellant,  have only taken into account the period  of  im- prisonment  undergone by the appellant and the  said  period falling  short of the prescribed minimum of six  months  and have not considered the appellant’s claim for pension  under clause (e).     Before concluding the judgment we may also refer to  two other objections that have been raised by the respondents in their  counteraffidavits. The first one is that  the  appel- lant’s  claim  for  pension under clause  (e)  is  an  after thought  since he had putforth such a claim only  after  his claim  for pension on the ground of incarceration  had  been rejected. The second objection putforth is that: "the petitioner has not been able to produce any docu- 726 mentary  evidence  from  official records  of  the  relevant period  in  support of his claim of loss of  vision  in  one eye." There  is  neither  justice nor grace  in  the  respondent’s putting  forth  such objections. No one  can  really  expect official  records to have been preserved for a period of  40 years to prove the treatment given to the petitioner for the injuries sustained by him during the freedom struggle. Hence the objection relating to non-production of official records of  the relevant period by the appellant to prove  the  sus- tainment  of  injury by him deserves outright  rejection  as well as outright condemnation. As regards the criticism that the  appellant’s  claim under Clause (e) appears  to  be  an after  thought, this too merits instantaneous rejection.  As we have already pointed out, the government doctors who have examined  the  appellant have found his claim  of  permanent incapacitation  of  the left eye to be true  and  the  State Government authorities have, after due enquiry, accepted the bona fides of the appellant’s claim and recommended his case for grant of pension under the S.S.S. Scheme by the respond- ents.  Consequently, merely because the  appellant,  perhaps out of ignorance of the several heads under which the  claim of pension could be made, had applied initially for grant of pension  under  clause (e), it can never be  said  that  the present claim of the appellant is an after thought.     For all the aforesaid reasons, we allow the appeal  with costs  of Rs.2,000 and quash the impugned order of  the  re- spondents  dated  30.4.1985, set aside the judgment  of  the High Court and issue a rule absolute in favour of the appel- lant as prayed for. P.S.S.                                                Appeal allowed. 727