20 August 2004
Supreme Court
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W.B.FREEDOM FIGHTERS ORGANISATION Vs U.O.I.

Case number: W.P.(C) No.-000068-000068 / 1999
Diary number: 1480 / 1999
Advocates: Vs SUSHMA SURI


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CASE NO.: Writ Petition (civil)  68 of 1999

PETITIONER: West Bengal Freedom Fighters’ Organization  

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 20/08/2004

BENCH: S. N. Variava & G. P. Mathur

JUDGMENT: J U D G M E N T

S. N. VARIAVA, J.

               By this Writ Petition, under Article 32 of the Constitution of  India, the Petitioners seek the following relief: "To issue Writ/Order/Direction to the State Government to  send reports about the freedom fighters to the Union  Government to expedite payment of Freedom Fighters  Pension from the commencement of the Scheme from  1.8.80 to the petitioner organization being the freedom  fighters."

This Petition has been filed by the Association whose members claim  to be freedom fighters.                     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 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 concerned jail authority, District  Magistrate or the State  Government, indicating period of  sentence awarded, date of admission, date of release and  reasons for release, a Non-availability of Records  Certificate (NARC) from the concerned authorities  alongwith 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-prisoners’ Certificate from a sitting MP or  MLC 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

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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 concerned authorities  alongwith 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.                   All the members of the Petitioner Association had applied  for pension.   It is their case that their applications were not being  processed and that the State Government was not doing anything.   This Court, by its Order dated 12th October, 2001, directed the State of  West Bengal to appoint a State Advisory Committee, if not already  appointed, and further directed the Committee to verify the cases of  the members of the Petitioner Association and communicate its opinion  to this Court.                 The State of West Bengal filed an affidavit on 4th February,  2002 wherein it was set out that the State Advisory Committee had  considered the cases of all and had rejected all the applications.                 This Court by its Order dated 15th February, 2002 directed  the State Government to file a better affidavit giving full particulars  regarding verification.  The State Government therefore filed another  affidavit dated 22nd March, 2002 along with which they annexed a copy  of the minutes of the meeting of the State Advisory Committee,  wherein it was, inter alia, recorded that the Verification Report from  DIG, IB/SP, DIB of the relevant districts had been obtained.  It was  also observed that from the records available their claims were not  corroborated and that the applicants had not submitted official records  as required under the Scheme and had also not submitted NARCs as  required under the Scheme.   It was stated that for these reasons the  applications had been rejected.                 By an Order dated 20th November, 2003, this Court asked  the Committee to supply details in respect of each applicant which lead  to the rejection of his claim.   Pursuant to this direction, an affidavit  dated 6th January, 2004 has been filed.  Along with this affidavit a  chart giving the names of the applicants, their claim, the report which  was seen and the views of the Committee have been set out.   From  this chart it is to be seen that except for a very small number of  applicants all the other applicants claim to have gone underground.  It  is also clear that none of the applicants has produced documents as  required by the Scheme.  All of them only relied on certificates from  co-freedom fighters without having produced NARCs as required under  the Scheme.                 The above mentioned Orders of this Court and the  Affidavits which have been filed, in effect, work out the Writ Petition.   As the State Government and the State Advisory Committee have now  opined that none of the applicants was eligible no question arises of  sending any report to the Central Government for payment of pension.                 Faced with this situation, it was submitted that in a matter  like this the Court should not look at technicalities but must look at the  substances of the Petition.  It was submitted that the substances of

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the Petition was that pension as per the Scheme be paid to the  freedom fighters.  It was submitted that this Court has been passing  the above mentioned Orders with this intention.  It was submitted  that, from the Affidavits which have been filed, it was clear that the  Governments themselves were stating that no jail records were  available in any of these cases and that the Committee had been only  looking at some record maintained by the Intelligence Bureau.  It was  submitted that that was not a record contemplated by this Scheme  and these were all cases where the official records were not available  and therefore the certificates of Co-freedom Fighters should have been  accepted.                 Reliance was placed upon the case of Chaitnya Charan  Das vs.  State of West Bengal reported in AIR 1995 Calcutta 336,  wherein this Scheme was under consideration.   In this case it was  directed by the Calcutta High Court that an Advisory Committee be set  up by the State Government for looking into the applications.   It was  further directed that once the Government was satisfied about the  genuineness and bonafide of a claim then payment had to be made.    It was further directed that such payment must be paid with interest  at the rate of 9% p.a. from the date of filing of the application.  It was  also noted that the State Government and the Central Government  were aware that in many cases records were not available.  It was  held that in cases where the record was not available claim of the  applicant supported by a personal knowledge certificate of a co- prisoner cannot be and should not be lightly disbelieved.                   Reliance was also placed upon the case of Gurdial Singh  vs.  Union of India reported in (2001) 8 SCC 8.  In this case the  applications had been accepted and pension had been granted with  effect from 29th April, 1998 instead of date of application i.e. 13th  March, 1973.   The applicant filed a Writ Petition seeking pension from  the date of his application.  The Government then issued a show-cause  notice as to why his pension be not cancelled.  In spite of his reply the  Government proceeded to cancel its earlier Order granting pension.   This was challenged by the applicant.  Before this Court the  Government tried to justify cancellation by showing minor  discrepancies and contradictions in the application.  In this context,  this Court held as follows:         "7. The standard of proof required in such cases is  not such standard which is required in a criminal case or in  a case adjudicated upon rival contentions or evidence of  the parties. As the object of the Scheme is to honour and  to mitigate the sufferings of those who had given their all  for the country, a liberal and not a technical approach is  required to be followed while determining the merits of the  case of a person seeking pension under the Scheme. It  should not be forgotten that the persons intended to be  covered by the Scheme had 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. 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". Once on the  basis of the evidence it is probabilised that the claimant  had suffered imprisonment for the cause of the country  and during the freedom struggle, a presumption is  required to be drawn in his favour unless the same is  rebutted by cogent, reasonable and reliable evidence.  8.      We have noticed with disgust that the  respondent authorities have adopted a hypertechnical  approach while dealing with the case of a freedom fighter  and ignored the basic principles/objectives of the Scheme

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intended to give the benefit to the sufferers in the freedom  movement. The contradictions and discrepancies, as  noticed hereinabove, cannot be held to be material which  could be made the basis of depriving the appellant of his  right to get the pension. The case of the appellant has  been disposed of by ignoring the mandate of law and the  Scheme. The impugned order also appears to have been  passed with a biased and closed mind, completely ignoring  the verdict of this Court in Mukund Lal Bhandari case  (1993 Supp (3) SCC 2). We further feel that after granting  the pension to the appellant, the respondents were not  justified in rejecting his claim on the basis of material  which already existed, justifying the grant of pension in his  favour. The appellant has, unnecessarily, been dragged to  litigation for no fault of his."                 Strong reliance was placed upon the above mentioned  observations of this Court and it was submitted that a sympathic  approach must be adopted in such cases.   It was submitted that the  object being to honour and mitigate sufferings of those who had given  their all for the country, a liberal and not a technical approach should  be taken.  It was submitted that once the Scheme had been  announced with the intention of honouring the freedom fighters the  object and purpose of the Scheme must be kept in mind and the case  of the claimants under the Scheme must be determined on the basis of  the probabilities and not on the basis of a test of beyond reasonable  doubt.                 On the other hand, Mr. P. P. Malhotra, learned ASG  appearing for the Union of India, and Mr. Janaranjan Das, learned  counsel appearing for the State of West Bengal submitted that this  was not a case where records were not available.  It was submitted  that, in this case, the State Government had appointed a statutory  Advisory Committee which had looked into all the applications.  It was  submitted that the applicants have not complied with the provisions of  the Scheme inasmuch as they have not submitted the relevant  documents.  It was submitted that all the applicants have given  certificates from co-prisoner without producing NARCs.  It was pointed  out that in most of the cases the applicants claim to have gone  undergone and yet certificate has been given by a prisoner who was  himself supposed to have been in jail.   It was pointed out that the  Government has noticed large scale fraud in claiming pension and has,  therefore, laid down strict guidelines which have been followed by the  Advisory Committee.   Reliance was placed upon the case of Mukund Lal Bhandari  vs. Union of India reported in (1993) Supp. (3) SCC 2, wherein it has  been held that the scheme mentions documents which are required to  be produced before the Government.  It has been held that it is not for  Courts to scrutinize the documents.  It is held that it is for the  Government to scrutinize the documents and pronounce upon their  genuineness.                 Reliance was also placed upon the case of Union of India  vs. Mohan Singh reported in (1996) 10 SCC 351.  In this case also  the applications had been made only supported by a certificate from a  MLA and a co-prisoner.  The Government found the certificate to be  insufficient to sustain the claim.  The High Court, however, held that  the certificates were sufficient and directed payment of pension.   Setting aside the Judgment of the High Court, this Court noted the  observations in Mukund Lal Bhandari’s case (supra) and held that it  was not for the High Court to embark upon the appreciation of the  evidence.  It was held that once the Government concludes that the  documents are not sufficient the High Court cannot interfere.                 Our attention is also drawn to an unreported Order of this  Court dated 24th September, 2003 in Civil Appeal No. 1850 of 1999.   In this case, an application had been made under this very Scheme.    There was no jail record and only an affidavit of a person who had  visited him in jail and a certificate from the Head Master of a school

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had been submitted.  This Court taking note of the observations in  Mukund Lal Bhandari’s case (supra) held that proof as required  under the Scheme had to be submitted.  It was held that if proof as  required under the Scheme was not submitted benefit could not be  granted.                   Reliance was also placed upon the case of State of  Maharashtra vs.  Raghunath Gajanan reported in 2004 (6) SCALE  478, wherein it has again been reiterated that it is for the Government  to be satisfied regarding genuineness of the claim and that the Court  cannot sit in judgment over the decision of the State Government like  an Appellate Authority.  It has been held that the Court cannot, while  exercising writ jurisdiction, enter into a re-appreciation of evidence  and/or reverse findings arrived at by the State Government, unless  they be perverse or be such as no reasonable man acting reasonably  could arrive at.  In this case, the Court noted the observations Gurdial  Singh’s case (supra) and held that the observations in Gurdial  Singh’s case (supra) do not negate the standards laid down in  Mukund Lal Bhandari’s case (supra) and that those standards  continue to apply.                 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.         We, however, record the statement of Mr. Janaranjan Das,  learned counsel appearing for the State of West Bengal, that as per  the recent policy decision of the Central Government all applications of  persons who claim to have been interned, in jails in territories which  are now in Bangladesh, will be forwarded to the Central Government  for their consideration.          Accordingly, the Writ Petition stands dismissed.  There will be no  order as to costs.