Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6950/2014
RADHA KRISHAN ..... Petitioner
Through: Mr. Jai Bansal, Advocate
versus
UNION OF INDIA & ANR ..... Respondents
Through: Ms. Shubhra Parashar and Mr. V.P.
Singh, Advocates for R-1
Mr. Pancham Lal, Head Clerk for R-2
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
O R D E R
% 24.02.2015
1. This is a writ petition whereby, in effect, the petitioner seeks quashing
of order dated 21.10.2013. The petitioner, who is 97 years old, has been
running from pillar to post, at least, since 1989, to get pension under the
Swatantrata Sainik Samman Pension Scheme, 1980 (in short Scheme).
1.1 It is the petitioner’s case that his father who was working in the
British Administration as Collector and District Magistrate asked him to
leave the family home as he was bent upon taking part in the freedom
struggle.
1.2 The petitioner, avers, that he, participated in the Quit India
Movement, and that, in this process, he was imprisoned in Sukkur Jail
(Sind), (presently in Pakistan) between 11.08.1942 to 15.02.1943.
1.3 It is also the petitioner’s case that apart from incarceration, he was
also administered “phatkas”; a colloquial term for whipping.
WP(C) 6950/2014 Page 1 of 11
1.4 The petitioner, in support of his claim, has placed before the
respondents, the following documents in the form of primary and secondary
evidence :- (i). discharge certificate dated 16.02.1943, issued by the Central
Jail, Sukkur (Sind), Pakistan; (ii). certificate dated 12.07.1956, issued by
one, Mr. Metharam H.K., Ex-Secretary, Sind Pradesh Congress Committee ;
(iii). certificate dated 28.12.1959, issued by one, Mr. Gopaldas Jamiatral,
Ex. Secretary, Sukkur District Congress Committee.
1.5 As indicated above, secondary evidence, in the form of: (i) “To
Whomsoever Certificate”, dated 06.02.1972, issued by Jairam Das
Doulatram, a Member of Parliament (Rajya Sabha); (ii) a certificate issued
dated 20.06.1973, issued by Mr. M. Ram Gopal Reddy, Member of the
Parliament (Lok Sabha); and lastly, a certificate dated 07.11.1989, issued by
Ms. Bijoy Chakravarty, Member of Parliament (Rajya Sabha).
1.6 I am in fact informed by the counsel for the petitioner that Ms. Bijoy
Chakravarty, is alive.
2. The respondents, however, vide the impugned order have rejected the
petitioner’s application for grant of pension under the aforementioned
scheme.
2.1 The operative part of the impugned order reads as follows :-
“..3. The claim of Shri Radha Krishan s/o. Late Shri Sobh
Raj r/o. A-60, Shivalik, near Malviya Nagar, New Delhi-
110017 has been examined keeping in view the documents
provided by Shri Radha Krishan himself and detailed
enquiry-cum-recommendation report furnished by the
Government of NCT, Delhi vide letter under reference and
observed as under :-
(a) That Shri Radha Krishan was given an opportunity to
present his case for grant of Central Samman Pension in
person or thorugh representative along with documentary
evidence, if any, by the Government of NCT, Delhi. He
WP(C) 6950/2014 Page 2 of 11
attended the office of the Government of NCT Delhi on
27.09.2013 and stated that he has already submitted the
relevant documents and has no other documents to submit.
(b) That the photocopy of the jail certificate submitted by him
was sent to Skkur Jail (Sind) Pakistan for verification
through MEA. MEA in its letter dated 28.09.2011 had
informed that “the aforesaid certificate could not be
verified because of non-availability of record of 1942-43.
(c) Photocopy of Certificates from Co-prisoners (i). Shri
Methram H.K., Ex-Secretary Sind Pradesh Congress
Committee and Sh. Gopalda Jamiatrai Ex-Secretary
Sukkur District Congress Committee also could not be
verified as both the Co-prisoners have already expired.
(d) That he has not submitted any documentary proof of his
claimed jail suffering for the period 11.08.1942 to
15.02.1942 served upon him for his participation in Quit
India Movement and also strips / phatkas sometimes in
Police Lock up. The certificate he has submitted could not
be verified because of non-availability of record of 1942-
43 record of Sukkur Jail (Sind) Pakistan.
(e) That he has submitted applications two time one in 1972 at
that time he has mentioned his age as 66 yers, which
means he would be 107 years at present and in another one
submitted in 1989 he has mentioned again his age as 66
years, which his present age is 90 years, which creates
controversy about his correct age at the time of
participation in movement.
(f) The CPCs of (i) Shri Methram H.K., Ex-Secretary Sind
Pradesh Congress Committee and Shri Gopalda Jamiatrai
Ex-Secretary Sukkur District Congress Committee, cannot
be considered as there is no mention in the certifiers about
their own jail sufferings.
(g) That the other two CPCs attached with the application
dated 1989 issued by S/S Shri M. Ram Gopal Reddy and
WP(C) 6950/2014 Page 3 of 11
Shri Bijoy Chakravarty, MP Rajya Sabha also could not
be considered as both the certifiers has not filled up their
personal details as well their jail sufferings, thus they are
incomplete. In addition, the authenticity of these
certificates also could not be verified.
(h) Government of NCT Delhi has not recommended the case
of Shri Radha Krishan for grant of pension.
4. In view of the above, the claim of Shri Radha Krishan
does not meet the eligibility criteria and evidentiary
requirements of Swatantrata Sainik Samman Pension
Scheme, 1980. It is, therefore, not possible to accept the
claim of Shri Radha Krishan for grant of Central Samman
Pension from Central Revenues. Hence, the same is,
hereby, rejected. The applicant may also be informed
accordingly..”
2.2 A perusal of the aforesaid would show that the first ground trotted out
for rejecting the primary evidence submitted in the form of a discharge
certificate from Sukkur Jail, was that, the Ministry of External Affairs, could
not get the certificate verified, in view of the response received via its
counter- part in Pakistan, that the, record for the period 1942-43, was not
available.
2.3 The second reason, furnished by the respondents, is that, the
certificate issued by Mr. Methram H.K., Ex-Secretary Sind Pradesh
Congress Committee and Mr. Gopalda Jamiatrai, Ex-Secretary, Sukkur
District Congress Committee, could not be verified as they had expired, in
the meanwhile.
2.4 The third ground given, is that, the petitioner, who claims that he
suffered a jail sentence between 11.08.1942 to 15.02.1943, could not
furnish proof of his suffering. It is also stated, that there is no proof
WP(C) 6950/2014 Page 4 of 11
furnished of the petitioner having administered the “phatkas”, as claimed by
him.
2.5 The fourth ground, articulated, in the said order, is that, in so far as,
certificates issued by Mr. Methram H.K. and Mr. Gopalda Jamiatrai, are
concerned, they do not mention their own jail suffering; even though
admittedly they fall in the category, which the respondents refer to as,
certified certifiers.
2.6 In so far as the certificates furnished by Mr. M. Ram Gopal Reddy
and Ms. Bijoy Chakravarty are concerned, those certificates, have also been
not considered because they have also, not indicated, in the certificates
issued to the petitioner, the details of their own jail suffering.
2.7 There is also, albeit a passing reference to the fact, that the petitioner
had submitted an application in 1972 wherein, he had indicated that his age
was 66 years and if, that the age, was to be taken as correct, he would be as
on the date (that is, when the order was passed) about 107 years and not 90
years, as he is sought to be portrayed.
3. In my view, none of the grounds incorporated in the impugned order
are tenable. The reason for the same is that in so far as the petitioner is
concerned, he has furnished to the respondents, the relevant documents
which are available with him. As a matter of fact, the petitioner claims that
he not only suffered incarceration, between 11.08.1942 to 15.02.1943, but
was also subjected to phatkas. These are physical sufferings, which the
petitioner claims that he endured during the period of his incarceration.
These are physical injuries suffered on account of incarceration, which could
have been verified by the respondents.
3.1 In so far as documentary evidence is concerned, the petitioner
discharged his burden with the submission of a certificate received from
WP(C) 6950/2014 Page 5 of 11
Sukkur Jail. If, for some reason, the record is not available with a foreign
Government, the blame for the same cannot possibly be laid at the doorstep
of the petitioner.
3.2 The petitioner, in addition has also, furnished the certificates, from the
co-prisoners. It is for the respondents, to come to a definitive conclusion, as
to whether the persons, whose names, have been indicated therein, actually
suffered imprisonment and if, they did, what was the period of their
imprisonment. This exercise could have been carried out very easily. The
respondents could have delved into their database and found out as to
whether the certifiers, had received pension under the aforementioned
scheme or, even better, as to whether they had been incarcerated. This
enquiry ought to have been made when the certifiers, who were evidently
Members of Parliament, were still alive.
3.3 As indicated above, one of the certifiers, Ms. Bijoy Chakravarty, I am
told, is alive. The respondents, have made no attempt to establish contact
with her and ascertain as to whether the claim of the petitioner is accurate.
3.4 In the petitioner’s case, a lot of time was spent in ascertaining as to
whether the petitioner had kept back information with regard to receipt of
pension from the State of Madhya Pradesh. This aspect is adverted to in a
letter dated 04.08.1997 issued by the Ministry of Home Affairs, Government
of India.
3.5 A perusal of this letter shows that the respondents were carrying on
an impression that the petitioner was being granted State pension by the
Madhya Pradesh government pursuant to the assertion, supposedly, made by
him that he had participated in, what was known as Praja Mandal
Movement , which was triggered in the former Princely State of Indore, and
that in this connection he was arrested and remained in Indore jail from
WP(C) 6950/2014 Page 6 of 11
01.05.1947 to 31.05.1947.
3.6 The said letter is also indicative of the fact that the respondents
carried an impression, erroneously though, that the petitioner was transferred
to Mahidpur Jail (in the former Holkar State) where he remained in
incarcerated till 07.07.1947.
3.7 The interesting aspect of this letter, was that, though a copy of the
same was addressed to the petitioner, at his address, he was shown as the
progeny of, one, Mr Ghasi Ram, whereas the petitioner’s father’s name is,
admittedly, Shobh Raj. The fact that this was a mis-information, came to
light only when Ministry of Home Affairs, Government of India, conducted
an inquiry pursuant to a direction issued by the Central Information
Commission (CIC) under the Right to Information Act, 2005.
3.8 The enquiry revealed that the petitioner never lived in Indore, and that
his namesake was drawing State pension from Indore. In other words, it was
a case of forgery, which had nothing to do with the petitioner.
3.9 It also got revealed that the said person, as indicated above, had
asserted that he had participated in the Praja Mandal Movement , whereas
the petitioner was laying a claim based on his participation in the Quit India
Movement.
3.10 As would be evident, in the entire process, nearly twelve (12) years
were spent in unravelling the correct facts. In such like case, there is an
urgent need for the respondents to carry out an inquiry, as quickly as
possible as material evidence, if any available, is likely to be lost. However,
as noticed by courts from time to time, an inexplicable apathy is displayed
by the respondents to the dismay and exasperation of the applicants.
Undoubtedly, the respondents have the necessary wherewithal available with
them, even so, they expect, the applicants, to gather the relevant material,
WP(C) 6950/2014 Page 7 of 11
knowing fully well that they are not necessarily persons of means and
wherewithal.
3.11 The learned counsel for the petitioner, in my view, has correctly relied
upon the judgment of the Supreme Court in Gurdial Singh Vs. Union of
India and Ors., (2001) 8 SCC 8 to bring to fore the standard proof that the
respondents are required to apply in such like cases. The Supreme Court in
paragraphs 6 to 9 of the said judgment has indicated as to the manner in
which the respondents are required to approach such cases. The Supreme
Court in Gurdial Singh’s case has indicated that the respondents are
required to test the material placed before them by applying the standard of
proof of preponderance of probability, and not, as is often erroneously done,
on the touchstone of “beyond reasonable doubt”. I can do no better than to
extract the relevant observations made by the Supreme Court in that behalf.
“.6. The scheme was introduced with the object of
providing grant of pension to living freedom fighters and
their families and to the families of martyrs. It has to be kept
in mind that millions of masses of this country had
participated in the freedom struggle without any expectation
of grant of any scheme at the relevant time. It has also to be
kept in mind that in the partition of the country most of
citizens who suffered imprisonment were handicapped to
get the relevant record from the jails where they had
suffered imprisonment. The problem of getting the record
from the foreign country is very cumbersome and
expensive. Keeping in mind the object of the scheme, the
concerned authorities are required that in appreciating the
scheme for the benefit of freedom fighters a rationale and
not a technical approach is required to be adopted. It has
also to be kept in mind that the claimants of the scheme are
supposed to be such persons who had given the best part of
their life for the country. This Court in Mukand Lal
Bhandari's case (supra) observed:
WP(C) 6950/2014 Page 8 of 11
"The object in making the said relaxation was not to reward
or compensate the sacrifices made in the freedom struggle.
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. It should not further be forgotten
that now its benefit is made available irrespective of the
income limit. Secondly, and this is equally important to
note, since we are by this decision making the benefit of the
scheme available irrespective of the date on which the
application is made, it would not be advisable to extend the
benefit retrospectively. Lastly, the pension under the present
Scheme is not the only benefit made available to the
freedom fighters or their dependents. The preference in
employment, allotment of accommodation and in admission
to schools and colleges of their kith and kin etc., are also the
other benefits which have been made available to them for
quite sometime now."
7. The court categorically mentioned that the pension
under the scheme should be made payable from the date on
which the application is made whether it is accompanied by
necessary proof of eligibility or not.
8. 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
WP(C) 6950/2014 Page 9 of 11
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 scheme have 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 touch-stone 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.
9. We have noticed with disgust that the respondent
Authorities have adopted a hyper-technical approach while
dealing with the case of a freedom fighter and ignored the
basic principles/objectives of the scheme 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 close
mind completely ignoring the verdict of this Court in
Mukund Lal Bhandari's case. We further feel that after
granting the pension to the appellant, the respondents were
not justified to reject 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. The High Court has completely
ignored its earlier judgments in CWP No.3790 of 1994
WP(C) 6950/2014 Page 10 of 11
entitled Mohan Singh vs. Union of India decided on
1.6.1995 and CWP 14442 of 1995 decided on 11.12.1995...”
(emphasis is mine)
4. Accordingly, in my opinion, the petitioner is entitled to the relief that
he seeks. Consequently, the respondents are directed to grant pension to the
petitioner from the date of the application. The application was, admittedly,
preferred by the petitioner on 09.10.1989, as reflected in this court’s order,
in the earlier round, dated 19.07.2013, passed in WP(C) 4154/2011.
4.1 The interest on arrears of pension, even though not specifically prayed
for, in a case like this, and I agree with Mr. Bansal in this regard, that the
residuary prayer made in the writ petition should be taken recourse to by the
court. Accordingly, simple interest @ 9% p.a. is granted to the petitioner.
In case the arrears of pension are not paid within six weeks from today,
interest will run at the rate of 12% p.a. (simple).
5. The necessary consequences of the aforesaid would be that order
dated 21.10.2013 will fall by the wayside. It is accordingly set aside.
6. With the aforesaid observations in place, the captioned petition is
disposed of.
7. Dasti.
RAJIV SHAKDHER, J
FEBRUARY 24, 2015
yg
WP(C) 6950/2014 Page 11 of 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6950/2014
RADHA KRISHAN ..... Petitioner
Through: Mr. Jai Bansal, Advocate
versus
UNION OF INDIA & ANR ..... Respondents
Through: Ms. Shubhra Parashar and Mr. V.P.
Singh, Advocates for R-1
Mr. Pancham Lal, Head Clerk for R-2
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
O R D E R
% 24.02.2015
1. This is a writ petition whereby, in effect, the petitioner seeks quashing
of order dated 21.10.2013. The petitioner, who is 97 years old, has been
running from pillar to post, at least, since 1989, to get pension under the
Swatantrata Sainik Samman Pension Scheme, 1980 (in short Scheme).
1.1 It is the petitioner’s case that his father who was working in the
British Administration as Collector and District Magistrate asked him to
leave the family home as he was bent upon taking part in the freedom
struggle.
1.2 The petitioner, avers, that he, participated in the Quit India
Movement, and that, in this process, he was imprisoned in Sukkur Jail
(Sind), (presently in Pakistan) between 11.08.1942 to 15.02.1943.
1.3 It is also the petitioner’s case that apart from incarceration, he was
also administered “phatkas”; a colloquial term for whipping.
WP(C) 6950/2014 Page 1 of 11
1.4 The petitioner, in support of his claim, has placed before the
respondents, the following documents in the form of primary and secondary
evidence :- (i). discharge certificate dated 16.02.1943, issued by the Central
Jail, Sukkur (Sind), Pakistan; (ii). certificate dated 12.07.1956, issued by
one, Mr. Metharam H.K., Ex-Secretary, Sind Pradesh Congress Committee ;
(iii). certificate dated 28.12.1959, issued by one, Mr. Gopaldas Jamiatral,
Ex. Secretary, Sukkur District Congress Committee.
1.5 As indicated above, secondary evidence, in the form of: (i) “To
Whomsoever Certificate”, dated 06.02.1972, issued by Jairam Das
Doulatram, a Member of Parliament (Rajya Sabha); (ii) a certificate issued
dated 20.06.1973, issued by Mr. M. Ram Gopal Reddy, Member of the
Parliament (Lok Sabha); and lastly, a certificate dated 07.11.1989, issued by
Ms. Bijoy Chakravarty, Member of Parliament (Rajya Sabha).
1.6 I am in fact informed by the counsel for the petitioner that Ms. Bijoy
Chakravarty, is alive.
2. The respondents, however, vide the impugned order have rejected the
petitioner’s application for grant of pension under the aforementioned
scheme.
2.1 The operative part of the impugned order reads as follows :-
“..3. The claim of Shri Radha Krishan s/o. Late Shri Sobh
Raj r/o. A-60, Shivalik, near Malviya Nagar, New Delhi-
110017 has been examined keeping in view the documents
provided by Shri Radha Krishan himself and detailed
enquiry-cum-recommendation report furnished by the
Government of NCT, Delhi vide letter under reference and
observed as under :-
(a) That Shri Radha Krishan was given an opportunity to
present his case for grant of Central Samman Pension in
person or thorugh representative along with documentary
evidence, if any, by the Government of NCT, Delhi. He
WP(C) 6950/2014 Page 2 of 11
attended the office of the Government of NCT Delhi on
27.09.2013 and stated that he has already submitted the
relevant documents and has no other documents to submit.
(b) That the photocopy of the jail certificate submitted by him
was sent to Skkur Jail (Sind) Pakistan for verification
through MEA. MEA in its letter dated 28.09.2011 had
informed that “the aforesaid certificate could not be
verified because of non-availability of record of 1942-43.
(c) Photocopy of Certificates from Co-prisoners (i). Shri
Methram H.K., Ex-Secretary Sind Pradesh Congress
Committee and Sh. Gopalda Jamiatrai Ex-Secretary
Sukkur District Congress Committee also could not be
verified as both the Co-prisoners have already expired.
(d) That he has not submitted any documentary proof of his
claimed jail suffering for the period 11.08.1942 to
15.02.1942 served upon him for his participation in Quit
India Movement and also strips / phatkas sometimes in
Police Lock up. The certificate he has submitted could not
be verified because of non-availability of record of 1942-
43 record of Sukkur Jail (Sind) Pakistan.
(e) That he has submitted applications two time one in 1972 at
that time he has mentioned his age as 66 yers, which
means he would be 107 years at present and in another one
submitted in 1989 he has mentioned again his age as 66
years, which his present age is 90 years, which creates
controversy about his correct age at the time of
participation in movement.
(f) The CPCs of (i) Shri Methram H.K., Ex-Secretary Sind
Pradesh Congress Committee and Shri Gopalda Jamiatrai
Ex-Secretary Sukkur District Congress Committee, cannot
be considered as there is no mention in the certifiers about
their own jail sufferings.
(g) That the other two CPCs attached with the application
dated 1989 issued by S/S Shri M. Ram Gopal Reddy and
WP(C) 6950/2014 Page 3 of 11
Shri Bijoy Chakravarty, MP Rajya Sabha also could not
be considered as both the certifiers has not filled up their
personal details as well their jail sufferings, thus they are
incomplete. In addition, the authenticity of these
certificates also could not be verified.
(h) Government of NCT Delhi has not recommended the case
of Shri Radha Krishan for grant of pension.
4. In view of the above, the claim of Shri Radha Krishan
does not meet the eligibility criteria and evidentiary
requirements of Swatantrata Sainik Samman Pension
Scheme, 1980. It is, therefore, not possible to accept the
claim of Shri Radha Krishan for grant of Central Samman
Pension from Central Revenues. Hence, the same is,
hereby, rejected. The applicant may also be informed
accordingly..”
2.2 A perusal of the aforesaid would show that the first ground trotted out
for rejecting the primary evidence submitted in the form of a discharge
certificate from Sukkur Jail, was that, the Ministry of External Affairs, could
not get the certificate verified, in view of the response received via its
counter- part in Pakistan, that the, record for the period 1942-43, was not
available.
2.3 The second reason, furnished by the respondents, is that, the
certificate issued by Mr. Methram H.K., Ex-Secretary Sind Pradesh
Congress Committee and Mr. Gopalda Jamiatrai, Ex-Secretary, Sukkur
District Congress Committee, could not be verified as they had expired, in
the meanwhile.
2.4 The third ground given, is that, the petitioner, who claims that he
suffered a jail sentence between 11.08.1942 to 15.02.1943, could not
furnish proof of his suffering. It is also stated, that there is no proof
WP(C) 6950/2014 Page 4 of 11
furnished of the petitioner having administered the “phatkas”, as claimed by
him.
2.5 The fourth ground, articulated, in the said order, is that, in so far as,
certificates issued by Mr. Methram H.K. and Mr. Gopalda Jamiatrai, are
concerned, they do not mention their own jail suffering; even though
admittedly they fall in the category, which the respondents refer to as,
certified certifiers.
2.6 In so far as the certificates furnished by Mr. M. Ram Gopal Reddy
and Ms. Bijoy Chakravarty are concerned, those certificates, have also been
not considered because they have also, not indicated, in the certificates
issued to the petitioner, the details of their own jail suffering.
2.7 There is also, albeit a passing reference to the fact, that the petitioner
had submitted an application in 1972 wherein, he had indicated that his age
was 66 years and if, that the age, was to be taken as correct, he would be as
on the date (that is, when the order was passed) about 107 years and not 90
years, as he is sought to be portrayed.
3. In my view, none of the grounds incorporated in the impugned order
are tenable. The reason for the same is that in so far as the petitioner is
concerned, he has furnished to the respondents, the relevant documents
which are available with him. As a matter of fact, the petitioner claims that
he not only suffered incarceration, between 11.08.1942 to 15.02.1943, but
was also subjected to phatkas. These are physical sufferings, which the
petitioner claims that he endured during the period of his incarceration.
These are physical injuries suffered on account of incarceration, which could
have been verified by the respondents.
3.1 In so far as documentary evidence is concerned, the petitioner
discharged his burden with the submission of a certificate received from
WP(C) 6950/2014 Page 5 of 11
Sukkur Jail. If, for some reason, the record is not available with a foreign
Government, the blame for the same cannot possibly be laid at the doorstep
of the petitioner.
3.2 The petitioner, in addition has also, furnished the certificates, from the
co-prisoners. It is for the respondents, to come to a definitive conclusion, as
to whether the persons, whose names, have been indicated therein, actually
suffered imprisonment and if, they did, what was the period of their
imprisonment. This exercise could have been carried out very easily. The
respondents could have delved into their database and found out as to
whether the certifiers, had received pension under the aforementioned
scheme or, even better, as to whether they had been incarcerated. This
enquiry ought to have been made when the certifiers, who were evidently
Members of Parliament, were still alive.
3.3 As indicated above, one of the certifiers, Ms. Bijoy Chakravarty, I am
told, is alive. The respondents, have made no attempt to establish contact
with her and ascertain as to whether the claim of the petitioner is accurate.
3.4 In the petitioner’s case, a lot of time was spent in ascertaining as to
whether the petitioner had kept back information with regard to receipt of
pension from the State of Madhya Pradesh. This aspect is adverted to in a
letter dated 04.08.1997 issued by the Ministry of Home Affairs, Government
of India.
3.5 A perusal of this letter shows that the respondents were carrying on
an impression that the petitioner was being granted State pension by the
Madhya Pradesh government pursuant to the assertion, supposedly, made by
him that he had participated in, what was known as Praja Mandal
Movement , which was triggered in the former Princely State of Indore, and
that in this connection he was arrested and remained in Indore jail from
WP(C) 6950/2014 Page 6 of 11
01.05.1947 to 31.05.1947.
3.6 The said letter is also indicative of the fact that the respondents
carried an impression, erroneously though, that the petitioner was transferred
to Mahidpur Jail (in the former Holkar State) where he remained in
incarcerated till 07.07.1947.
3.7 The interesting aspect of this letter, was that, though a copy of the
same was addressed to the petitioner, at his address, he was shown as the
progeny of, one, Mr Ghasi Ram, whereas the petitioner’s father’s name is,
admittedly, Shobh Raj. The fact that this was a mis-information, came to
light only when Ministry of Home Affairs, Government of India, conducted
an inquiry pursuant to a direction issued by the Central Information
Commission (CIC) under the Right to Information Act, 2005.
3.8 The enquiry revealed that the petitioner never lived in Indore, and that
his namesake was drawing State pension from Indore. In other words, it was
a case of forgery, which had nothing to do with the petitioner.
3.9 It also got revealed that the said person, as indicated above, had
asserted that he had participated in the Praja Mandal Movement , whereas
the petitioner was laying a claim based on his participation in the Quit India
Movement.
3.10 As would be evident, in the entire process, nearly twelve (12) years
were spent in unravelling the correct facts. In such like case, there is an
urgent need for the respondents to carry out an inquiry, as quickly as
possible as material evidence, if any available, is likely to be lost. However,
as noticed by courts from time to time, an inexplicable apathy is displayed
by the respondents to the dismay and exasperation of the applicants.
Undoubtedly, the respondents have the necessary wherewithal available with
them, even so, they expect, the applicants, to gather the relevant material,
WP(C) 6950/2014 Page 7 of 11
knowing fully well that they are not necessarily persons of means and
wherewithal.
3.11 The learned counsel for the petitioner, in my view, has correctly relied
upon the judgment of the Supreme Court in Gurdial Singh Vs. Union of
India and Ors., (2001) 8 SCC 8 to bring to fore the standard proof that the
respondents are required to apply in such like cases. The Supreme Court in
paragraphs 6 to 9 of the said judgment has indicated as to the manner in
which the respondents are required to approach such cases. The Supreme
Court in Gurdial Singh’s case has indicated that the respondents are
required to test the material placed before them by applying the standard of
proof of preponderance of probability, and not, as is often erroneously done,
on the touchstone of “beyond reasonable doubt”. I can do no better than to
extract the relevant observations made by the Supreme Court in that behalf.
“.6. The scheme was introduced with the object of
providing grant of pension to living freedom fighters and
their families and to the families of martyrs. It has to be kept
in mind that millions of masses of this country had
participated in the freedom struggle without any expectation
of grant of any scheme at the relevant time. It has also to be
kept in mind that in the partition of the country most of
citizens who suffered imprisonment were handicapped to
get the relevant record from the jails where they had
suffered imprisonment. The problem of getting the record
from the foreign country is very cumbersome and
expensive. Keeping in mind the object of the scheme, the
concerned authorities are required that in appreciating the
scheme for the benefit of freedom fighters a rationale and
not a technical approach is required to be adopted. It has
also to be kept in mind that the claimants of the scheme are
supposed to be such persons who had given the best part of
their life for the country. This Court in Mukand Lal
Bhandari's case (supra) observed:
WP(C) 6950/2014 Page 8 of 11
"The object in making the said relaxation was not to reward
or compensate the sacrifices made in the freedom struggle.
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. It should not further be forgotten
that now its benefit is made available irrespective of the
income limit. Secondly, and this is equally important to
note, since we are by this decision making the benefit of the
scheme available irrespective of the date on which the
application is made, it would not be advisable to extend the
benefit retrospectively. Lastly, the pension under the present
Scheme is not the only benefit made available to the
freedom fighters or their dependents. The preference in
employment, allotment of accommodation and in admission
to schools and colleges of their kith and kin etc., are also the
other benefits which have been made available to them for
quite sometime now."
7. The court categorically mentioned that the pension
under the scheme should be made payable from the date on
which the application is made whether it is accompanied by
necessary proof of eligibility or not.
8. 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
WP(C) 6950/2014 Page 9 of 11
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 scheme have 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 touch-stone 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.
9. We have noticed with disgust that the respondent
Authorities have adopted a hyper-technical approach while
dealing with the case of a freedom fighter and ignored the
basic principles/objectives of the scheme 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 close
mind completely ignoring the verdict of this Court in
Mukund Lal Bhandari's case. We further feel that after
granting the pension to the appellant, the respondents were
not justified to reject 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. The High Court has completely
ignored its earlier judgments in CWP No.3790 of 1994
WP(C) 6950/2014 Page 10 of 11
entitled Mohan Singh vs. Union of India decided on
1.6.1995 and CWP 14442 of 1995 decided on 11.12.1995...”
(emphasis is mine)
4. Accordingly, in my opinion, the petitioner is entitled to the relief that
he seeks. Consequently, the respondents are directed to grant pension to the
petitioner from the date of the application. The application was, admittedly,
preferred by the petitioner on 09.10.1989, as reflected in this court’s order,
in the earlier round, dated 19.07.2013, passed in WP(C) 4154/2011.
4.1 The interest on arrears of pension, even though not specifically prayed
for, in a case like this, and I agree with Mr. Bansal in this regard, that the
residuary prayer made in the writ petition should be taken recourse to by the
court. Accordingly, simple interest @ 9% p.a. is granted to the petitioner.
In case the arrears of pension are not paid within six weeks from today,
interest will run at the rate of 12% p.a. (simple).
5. The necessary consequences of the aforesaid would be that order
dated 21.10.2013 will fall by the wayside. It is accordingly set aside.
6. With the aforesaid observations in place, the captioned petition is
disposed of.
7. Dasti.
RAJIV SHAKDHER, J
FEBRUARY 24, 2015
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