JUDGMENT
K. Balakrishnan Nair, J.
1. The point which arises for decision in both these Writ Appeals is whether the
imprisonment in jail as under trial prisoner cold be reckoned for computing the six
months period of imprisonment for getting freedom fighters pension.
2. The undisputed facts are the following:- The first petitioner in O.P.No. 31246/99
is a freedom fighter. The other petitioner in that Original Petition and the petitioner in
O.P.No. 31395/99 are the widows of freedom fighters. All of them are getting freedom
fighters pension/freedom fighters family pension from the State Government. When
the Central Government declared that Punnapra Vayalar struggle was also part of the
freedom struggle, they became eligible for the Central pension also. But their
applications were not favourably considered because the imprisonment suffered by
the concerned freedom fighters was as under trial prisoners and not as convicts.
According to Central Government, even though they were freedom
fighters in terms
of the scheme and were charge sheeted by the police in connection with the freedom
struggle, they are not eligible for pension as their cases ended in acquittal. They were
only under trial prisoners. So, they are ineligible for pension, the Central Government
contended.
Therefore, the decision in these cases will rest on the true construction of the
provisions of the Freedom Fighters Pension Scheme known as Swatantrata Sainik
Samman Pension Scheme, 1980.
3. The Scheme has been provided as Ext. P1 in O.P. No. 31246/1999. A freedom
fighter who had suffered a minimum imprisonment of six months in the main land jails
is eligible for pension. The relevant clause in the scheme given in paragraph 4(a) of
Ext. P1 reads as follows:-
“4(a) A person who had suffered a minimum imprisonment of six months in the mainland
jails before independence. However, Ex-INA personnel will be eligible for pension if the
imprisonment/detention suffered by them was outside India.”
An explanation has been added to the said clause. The relevant portion of it reads as
follows:
“1. Detention under the orders of the competent authority will be considered as
imprisonment.
2. Period of normal remission upon one month will be treated as part of actual imprisonment.
3. In the case of a trial ending in conviction, under trial period will be counted towards
actual imprisonment suffered.
4. Broken period of imprisonment will be totalled 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
2. one for whose detention order was issued but not served.
(c) A person interned in his home or externed from his district provided the period of
interment/externment was six months or more…..”.
The main Clause 4(a) speaks of imprisonment only. It does not specify whether it
should be as convict or as under trial prisoner. Going by the plain meaning of the
words, the petitioners are eligible for pension.
4. But, relying on Clause 3 of the explanation, the appellant has taken the stand
that under trial period cannot be counted. As rightly pointed out by the learned Single
Judge, the explanation, in fact, dilutes the thrust of the main provision providing for six
months imprisonment. Other forms of suffering and incarceration in connection with
the freedom struggle are also deemed to be imprisonment for the purpose of minimum
imprisonment required as per the main provision. Explanation 3 only says that in
cases ending in conviction the imprisonment as under rial prisoner and as convict, can
be clubbed together to reckon the total period of six months. It does not mean that if
the entire detention is as under trial prisoner, the same has to be excluded. If that was
the intention, the same would have been explicitly stated. The interpretation adopted
by the appellants cannot be correct,in view of Clause 4(b) of the Explanation. The
said provision says that if a freedom fighter was one who remained underground as a
proclaimed offender or against whom an award for arrest was pending, then he will
also be eligible for pension. It means that if an accused absent himself and goes
underground to escape the process of law like arrest, he will be eligible in view of this
clause irrespective of the final fate of the criminal case against him. But, if he was
actually arrested and remanded and while so, faced the trial which ultimately ended in
his acquittal, he will not be eligible, if the Government’s contention is accepted. Further,
in view of Clause 4(c) of the Explanation, a person interned in his house for six months
is also eligible for pension. It means, a person even without any criminal case against
him when prevented from moving out for six months from his house becomes eligible
for pension. But, a person who is actually involved in a criminal case in connection
with the freedom struggle and who was imprisoned for more than six months as under
trial prisoner will be denied pension depending on the outcome of the criminal case
against him, if the view of the Government is accepted.
5. The object of Ext. P1 scheme was to provide succour to the aged and infirm
freedom fighters and their dependants in recognition of their sacrifice for the mother
land. Going by the settled cannons of construction, we are bound to adopt an
interpretation which subserves best the object of the scheme. The freedom fighters
were oppressed and harassed by criminal cases, house arrest etc. The evade the
process of law of the oppressive Government, many went underground. Undoubtedly,
they are eligible for pension. Several others were arrested and false cases were
foisted upon them. They languished in jail as under trial prisoners and some of them
later suffered imprisonment as convicts also. Many false cases have ended in acquittal
of the freedom fighters. If the interpretation advanced by the appellant is accepted,
those who suffered imprisonment as a result of foisting of false cases which ended in
their acquittal will be ineligible for the pension. Having regard to the laudable object of
the scheme, the framers of it cannot be held to have such an intention. The intention
of the framers of the scheme can be gathered by reading the scheme as a whole.
Those who suffered internment in their house, and those who evaded arrest and became
proclaimed offenders or carried an award for arrest are made eligible for pension. It
cannot be said that the framers of the scheme did not intend the benefit of the scheme
being extended to those who suffered incarceration, owing to foisting of false cases,
as under trial prisoners. An intention cannot be attributed to the framers of the scheme
that the eligibility of the prisoners should depend on the success or otherwise of the
prosecution in securing a conviction.
6. The Court can definitely look at the whole scope and object of the Act to
gather the intention of it. Lord Porter in Raja Bhagwan Baksh Singh v. Secretary
of State (AIR 1940 Privy Council 82) said:
“A right construction of the Act can only be attained if its whole scope and object together
with an analysis of its wording and the circumstances in which it is enacted are taken into
consideration.”
The above statement of Lord Parker has been quoted with approval by our Supreme
Court in Premchand Jain v. R.K. Chabra (1984 (2) SCC 301). It will be quite
apposite to quote the following words of Judge Learned Hand:
“Compunctions about judicial legislation are right enough as long as we have any genuine
doubt as to the breadth of the legislature’s intent; and no doubt, the most important single factor
in ascertaining its intent is the words it employs. But the colloquial words of a Statute have not
the fixed and artificial content of scientific symbols, they have a penumbra, a dim fringe, a
connotation, for they express an attitude of will, into which it is our duty to penetrate and which
we must enforce when we can ascertain it, regardless of imprecision in its expression.”
(Quoted in 60 Harvard Law Review 370)
7. Further, if the interpretation given to the scheme by the appellant is accepted,
the same will result in gross injustice also. When persons under internment in the
house and those who went underground evading arrest are eligible for pension, those
who were actually arrested and suffered torture as under trial prisoners, will be denied
pension on the basis of the failure of the prosecution to prove the case against him.
Maxwell on Interpretation of Statutes (Twelfth Edition) says:
“Whenever the language of legislature admits of two constructions and, if construed in one
way, would lead to obvious injustice, the courts act upon the view that such a result could not
have been intended, unless the intention to bring it about has been manifested in plain words.”
One Supreme Court has also spoken in similar words in several cases. In Madhava
Rao Scindia v. Union of India (AIR 1971 SC 530) Shah, J. said:
“The Court will interpret a Statute as far as possible, agreeably to justice and reason and
that in case of two or more interpretations, one which is more reasonable and just will be adopted,
for there is always a presumption against the law maker intending injustice and unreason. The
Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions
of justice and norms of fairplay, unless a contrary intention is manifest from words plain and
unambiguous. A provision in a stature will not be construed to defeat its manifest purpose and
general values which animate its structure…..”.
8. When we read the scheme as a whole, in the light of the said principles, we
have no hesitation to hold that the freedom fighters concerned in these cases are
eligible for pension. On their death, their dependents are eligible. Therefore, we find
no infirmity with the decision of the learned Single Judge. We affirm the same. The
Appeal lack merit and they are accordingly dismissed.
No costs.