PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
R.V. SWAMY @ R. VELLAICHAMY
DATE OF JUDGMENT: 31/03/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
ORDER
Substitution allowed.
Leave granted. We have heard learned counsel on both sides.
This appeal by special leave arises from the judgment of the High Court of Madras, made on 3.1.1996 in writ petition No.11957/94. The High Court, on appreciation of evidence, has observed in paragraph 9 of the judgment as under:
" I have carefully considered the
submissions of learned counsel for
the petitioner and the respondents.
Admittedly, the petitioner was
sanctioned freedom fighters pension
by the state Government. Five
prominent Freedom Fighters have
given certificates who were
eligible to give such certificates
under the very scheme and nothing
is stated to discredit these
certificates. In view of the
certificates produced by the
petitioner though the records for
the relevant period of 1942-43 were
not available since they were
destroyed, the certificated given
by the prominent freedom fighters
are to be accepted. Added to this,
the claim of the petitioner also
finds place in the book published
by the Government of Tamil Nadu and
it further supports the claim of
the petitioner that he suffered
imprisonment for a period of two
months in Alipuram Jail. The report
of the collector of Madurai that no
record as to arrest warrant is
available or that the arrest
warrant was issued against the
petitioner cannot be taken as
conclusive because there is nothing
to show that as to what is the
basis for such a statement. If it
were to be a certificate issued bu
the authorities or the Court which
had issued arrest different matter.
At any rate, even the same
collector recommended for the
sanction of Central Pension to the
petitioner. Even on earlier
occasion, the state Government had
recommended for grant of central
Freedom Fighters pension to the
petitioner as can be seen from the
letter dated 22.1.1982 addressed to
the first respondent. Thus, having
regard to overall thus, having
regard to overall circumstances of
the case and the materials placed
on record, I am of the opinion that
the petitioner is entitled to grant
of pension under the SSS pension
scheme of the central Government.
Having regard to the fact that the
petitioner has been struggling to
get pension from 14.12.1981 and the
petitioner made an application to
the first respondent for the third
time and in view of the fact that
this court remanded the case of the
first respondent did not consider
the claim of the petitioner, having
regard to the guidelines and
directions given in Thangavela vs.
The Government of India (1994(1)
MLJ 622), I do not think that it is
appropriate to direct the first
respondent again to consider the
case of the petitioner. In view of
the materials placed on record, the
petitioner is entitled to get the
pension sought for."
The High Court directed grant of pension to R.V. Swamy @ R. vellaichamy who has expired. The legal representatives have been brought on record for grant of pension under the central Freedom Fighters pension scheme postulates as under:
"4. Who is eligible:
For the purpose of grant of
Samman Pension under the scheme, a
freedom fighter is:
(a) A pensioner who had suffered
a minimum imprisonment of six moths
in the mainland jails before
Independence. However, ex-INA
personnel will be eligible of
pension if the
imprisonment/detention suffered by
them was outside India.
(b) The minimum period of actual
imprisonment of eligibility of
pension has been reduced to three
months, in case of women and SC/ST
freedom fighters form 1.8.1980.
IN Explanation:4. Broken period of
imprisonment will be totaled 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; or
3. One for whose detention order
was issued but not served."
The question, therefore, is: whether the view taken by the High Court is correct in law ? This Court in Mukund Lal Bhandari & Ors. vs. Union of India & Ors. {1993 Supp.(3) at 5] held thus:
" As regards the sufficiency of the
proof, the scheme itself mentions
the documents which are required to
be produced before the Government.
It is not Possible for this Court
to scrutinize the documents which
according to the petitioner, they
had produced in support of their
claim an pronounce upon their
genuineness. It is the function of
the Government to do so. we would,
therefore, direct accordingly."
In Union of India vs. Mohan Singh & Ors. [(1966) 10 SCC 351] the High court directed the Government to consider the case of the respondent therein for grant of Freedom Fighter Pension. The respondents therein relied upon a certificate of co-prisoner and an MLA and sought pension on that basis. The Government considered the certificate and found the same as not acceptable. When the second writ petition was admitted on the ground that the certificate of MLA was sufficient proof, This court following the judgment in Mukund Lal Bhandari’s case has held in paragraph 5, as extracted earlier.
In this case, the evidence does indicate that there is no proof of any warrant issued against the respondent as a proclaimed offender nor is there any evidence of actual proof indicating actual sentence .
Under these circumstance the reliance on the certificate issued by the persons mentioned in the judgment of the High Court is matter of appreciation of evidence.
The question is: whether the High court is right in appreciating the evidence and to conclude that the respondent is freedom fighter to claim Freedom Fighter pension. The Government, in fact, has considered that evidence and stated as under:
"In compliance of the above
direction of the Hon’ble High Court
your case has again been re-
examined. It is, However, regretted
that it has not been possible to
granted that it ha not been
possible to grant you pension for
the following reasons :
(i) The Government of Tamil Nadu
has reported that no warrant of
arrest was issued against you and
no other acceptable documentary
evidence was available in proof of
your claimed underground suffering
for more than six months.
(ii) No jail record for the claimed
imprisonment period from 2nd week
of September 1941, to Ist week of
November, 1941 has been furnished.
(iii) Since no warrant of arrest
etc. was issued against you as
reported by the state Government.
The certificates from S/Shri P.S.
Lakshmipathy Raju, A.B. Nagier and
Dr. T. khannan D. Ramakrishnan, I,
Mayandi Bharati and A.K.
Sonnamurthu are not acceptable,
because for sanction of pension
person should have remained
underground against some executive
of the Government before issue of
arrest etc.
(iv) The non-availability of record
certificate with reference to
issue of warrant of arrest etc.
against you as submitted by you,
has been issued in 1988 wherein you
did not mention the specific detail
of case No. etc. in your
application for issue of warrant
etc. Since earlier in 1985 state
Government have already intimated
that no arrest warrant etc. was
issued against you. In view of
these circumstances NARC cannot be
accepted."
In view of the above consideration, it being a pure appreciation of evidence, the High court was not justified in directing grant of Freedom Fighter pension to the respondent.
Of late, large number of cases have been coming up quit frequently for grant of Freedom Fighter pension on the basis of the certificates issued by some persons with status of freedom fighters and are by and large not found to be acceptable to the Government of India. Since several matters are coming up to this court, it is for the Government of India to re-consider the matter and to lay dawn appropriate clear guidelines for the so-called freedom fighter who issue certificated to persons who come forward for Freedom Fighter pension. Learned counsel for the respondent Fighter pension. Learned counsel for the respondent has stated that since the state Government has recommended the case of the deceased-respondent-window may be given liberty to approach the state Government in that behalf. Liberty is given to her to approach in that behalf. Liberty is given to her to approach the state Government. It is for the state Government to consider the application according to their guidelines and dispose it of on merits
The appeal is accordingly allowed. No costs.