Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6651 OF 2008
Union of India & Anr. ... Appellants
Versus
Jai Kishun Singh (D) through L.Rs. & Ors. ... Respondents
J U D G M E N T
ARUN MISHRA, J.
In the case in hand, the Court is required to adjudicate
upon the issue whether Freedom Fighter pension had been
undeservingly extended to respondent No.1 inspite of the fact
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that he did not participate in freedom struggle as he was a
child of 7 to 8 years in the year 1942.
Initially, original respondent No.1’s case for granting such
pension was declined by the appellant vide letter dated
19.06.1995. However, original respondent No.1 was successful
in getting released pension on second attempt and it was
ordered to be released on 26.12.1997 with retrospective effect
from 28.07.1981.
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The matter did not set at rest at that. The High Court at Patna
directed suo motu inquiry in the rampant complaints that large
persons in the State of Bihar were availing such benefits inspite
of not having participated in freedom struggle as contemplated
under the Swatantrata Sainik Samman Pension Scheme, 1980
(for short “the Scheme”). The Deputy Collector conducted
inquiry into the matter and recorded evidence. He found that
claim of the deceased respondent No.1 was not genuine. On
that basis, the Union of India issued show-cause notice and
thereafter took decision on 19.05.2004 to cancel pension with
effect from the date it was initially sanctioned, i.e. 28.07.1981
and the amount of pension already drawn by him be recovered.
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The deceased respondent No.1 unsuccessfully impugned
the aforesaid order in writ petition filed before the Single
Bench. However, the Division Bench of the High Court in the
appeal has quashed the order. Hence, the Union of India has
come up in appeal before us. The operation of order passed by
the Division Bench of the High Court was stayed by this Court
on 10.11.2008.
The learned counsel for the appellants submitted that
pension was rightly withdrawn. The age of the deceased
respondent No.1 was 7 to 8 years in 1942. Thus, his
participation in the incident of August 1942 was rightly
disbelieved. He was unable even to give details of the incident
in the course of inquiry. The reliance placed by the Division
Bench on the determination of age by the Medical Board at 73
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years in 2001 was uncalled for as the Medical Board has not
conducted scientific tests and has opined on the basis of
physical appearance of the original respondent No.1. He had
also submitted that the original respondent No.1 had stated his
age on 06.06.1977 to be 40 years while deposing in Criminal
Case No.1018/1974 (Trial No.381/77). Apart from this, in the
Voter List of 1975, his age has been mentioned as 42 years.
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Thus, at the age of 7 to 8 years, the claim that he participated
in freedom struggle could not be said to be believable.
Per contra, the counsel for L.Rs. of the deceased
respondent No.1 would submit that pension had been rightly
sanctioned in 1997. Thereafter, in view of the report of Medical
Board, there was no reason to withdraw it as the age at the
relevant time in 1942 would have been 13 years.
The main question for consideration is what was the
th
approximate age of deceased respondent No. 1 on 15 August,
1942. He has claimed that his age was 13 years when he went
th th
underground for a year w.e.f. 14 August, 1942 to 15 August,
1943.
The enquiry officer recorded oral statement indicating that
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his age was much less. We discard such statement as oral
statement cannot be a safe criteria for arriving at conclusion.
However, the documentary evidence of the years 1975 and
1977 in the form of Voter List and deposition-sheet clinches the
issue and establishes that the claim is not genuine.
Documentary evidence has to prevail, more so as there was no
such dispute as to age at the relevant time. As per deposition-
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sheet of criminal case, age was approximately 40 years in
1977. If the said date is taken as correct, the date of birth
would come to the year 1937. As per Voter List of 1975, his
age was 42 years. From aforesaid documents in consideration,
age in 1942 would have been above 5 years and below 10
years. At such an age, participation in the incident in question
is highly improbable as such cancellation of the pension in the
facts and circumstances of the case, could not be said to be
unwarranted at all.
The freedom fighter pension is a form of gratitude
extended by an indebted nation in recognition of the sacrifice
made by the freedom fighters to achieving independence. We
are conscious of the fact that liberal approach has to be
adopted in such matters so that rightful persons are not
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deprived of deserving benefit for lack of evidence, after a lapse
of long time. It has been laid down by this Court that such
cases have to be decided on preponderance of probabilities
and standard of proof beyond reasonable doubt is not to be
applied.
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Relying upon Gurdial Singh vs. Union of India (2001) 8
SCC 8 in Kamlabai Sinkar vs. State of Maharashtra & Ors.
(2012) 11 SCC 754, this Court has laid down thus :
“6. Having perused the above materials on
record, at the very outset, we wish to refer to
the observations made by this Court in regard
to the grant of freedom fighters’ pension in the
decision in Gurdial Singh v. Union of India. In
para 7 of the judgment, this Court has
highlighted the manner in which such claims
are to be considered for grant of freedom
fighters’ pension. It will be worthwhile to make
a reference to the said passage before
expressing our conclusion with regard to the
claim of the appellant’s husband in the case on
hand.”
7. Para 7 reads as under: ( Gurdial Singh case)
“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
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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.”
[emphasis added]
We are unable to rely upon determination of age by
the Medical Board as it is based upon physical appearance
only and not based upon any scientific medical test like
ossification test and radiological examination. When it is
based on such scientific tests as laid down in Om
Prakash vs. State of Rajasthan & Anr. (2012) 5 SCC
201, it is of strong corroborative value. The Medical Board
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held on 11.4.2002 has opined on physical appearance
basis age about 73 years. It is not based on scientific tests
hence it cannot be accepted, more so in view of other
documentary evidence on record.
This Court in State of Orissa vs. Choudhury
Nayak (D) through L.Rs. & Ors. (2010) 8 SCC 796 has
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adversely commented on undeserving candidates availing
the benefits of such welfare schemes, thus:
“9. It is of some interest to note from the
statistics furnished by the Central
government in their additional affidavit, that
1,70,813 freedom fighters/dependants have
been sanctioned freedom fighters pension (as
on 31.5.2010). At present as many as 60000
persons are getting pension or family pension
as freedom fighters/dependants. The average
pension of a freedom fighter and after his/her
death to the spouse is Rs.12400/- p.m. and
the average pension paid to a dependant
unmarried daughter is Rs.3000 per month.
The expenditure for the year 2009-2010
under the scheme was Rs.785 crores. We
have referred to these figures only to show
that when false claims come to the notice of
the Central Government, it is bound to take
stern action. Any complacency on the part of
the Government in taking action against
bogus claims under any scheme would
encourage bogus claims under all schemes,
by undeserving candidates who are “well
connected and influential”. False claimants
walking away with the benefits meant for
genuine and deserving candidates has
become the bane of several welfare schemes.
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10. xx xx xx
11. Grant of freedom fighters' pension to
bogus claimants producing false and
fabricated documents is as bad as genuine
freedom fighters being denied pension. The
only way to respect the sacrifices of freedom
fighters is to ensure that only genuine
freedom fighters get the pension. This means
that the Government should weed out false
and fabricated claims and cancel the grant
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when the bogus nature of the claim comes to
light. In Union of India vs. Avtar Singh
[(2006) 6 SCC 493] this Court therefore
cautioned:
“8.......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."
In the facts and circumstances of this case, we have
no hesitation to restore the judgment and order passed by
the Single Bench of the High Court at Patna. The judgment
and order of the Division Bench is set aside. As the
respondent has been wrongly allowed pension after
rejecting claim at the first instance by the appellant, the
High Court has directed suo motu inquiry and on this basis
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pension had been withdrawn, and also considering the fact
that the recipient of pension respondent No.1 has died, we
direct that the amount paid to him shall not be recovered
from his legal representatives.
The appeal is accordingly allowed. No costs.
......................... J.
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(Vikramajit
Sen)
......................... J.
(Arun
Mishra)
New Delhi,
September 10, 2014.
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