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CASE NO.: Appeal (civil)  3019 of 2006

PETITIONER: Union of India

RESPONDENT: Shri Avtar Singh

DATE OF JUDGMENT: 18/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  (Arising out of SLP (C) No. 5367 of 2006)

       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  

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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. (2001(8) SCC 8) 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.   (2004 (7) SCC 716).     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. (AIR 1993 SC  2127). 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

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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. (2005 (7) SCC 605)                                   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

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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.