REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5215 OF 2009
Mahender Singh .... Appellant (s)
Versus
Union of India .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) This appeal is directed against the final judgment
and order dated 30.01.2006 of the High Court of Delhi at
New Delhi in L.P.A. No. 710 of 2005 whereby the High
Court allowed the appeal filed by the respondent herein
and set aside the order passed by the learned single
Judge.
2) Brief facts:
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a) According to the appellant, he is a freedom fighter,
who sacrificed his studies in the freedom struggle and had
taken active part in the 1942 agitation and was forced to
remain an absconder for more than four years i.e. from
20.08.1942 till September, 1946 as he was made an
accused in G.R. Case No. 985 of 1942 and in Mokama P.S.
Case No. 259 (8) of 1942 titled State vs. Mahender Singh
& Ors., relating to the incidents of burning and damaging
of a post office, railway line etc. at Mokama during
freedom struggle. In 1972, Freedom Fighters’ Pension
Scheme was introduced by the Government of India for
the grant of pension to living freedom fighters and their
families. In 1980, the benefit of the Swatantra Sainik
Samman Pension Scheme, 1980 (formerly known as `the
Freedom Fighters’ Pension Scheme, 1972′) was extended
to all the Freedom fighters as a token of Samman (respect)
to them.
b) On 07.09.1981, the appellant herein filed an
application for pension under the Scheme which was
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registered on 20.06.1981. After a detailed enquiry by the
Bihar Government, the matter was placed before the
Advisory Board on 12/13.12.1995 which recommended
for release of pension to the appellant w.e.f. 01.08.1980.
In the absence of any reply, the appellant again on
09.04.1997 sent a letter to the Government for releasing
his pension. Thereafter on 19.09.1997, the appellant sent
a notice through his advocate which remained unreplied.
On 15.12.1997, the appellant filed a petition being W.P.
No. 1248 of 1998 before the High Court of Delhi. Vide
order dated 26.03.1998, the petition was withdrawn by
the appellant on the assurance of the learned counsel for
the respondents therein that as and when they got the
clarifications sought for in the representation of the
appellant, the representation shall be disposed of. The
High Court further directed the Government to take a
decision on the representation within three months of the
receipt of the clarifications. Not getting any reply from the
Government, on 17.07.1998, the appellant sent a
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reminder to the respondent. On 10.12.1998, the
appellant filed a Contempt Petition bearing C.C.P. No. 489
of 1998 before the High Court in which a show cause
notice was issued to the Government for non-complying
with its order. However, on 17.12.1998, the appellant got
a registered letter from the Government refusing to grant
him the freedom fighter pension. On 17.04.2001, the
High Court dismissed the contempt petition and observed
that if the appellant herein is aggrieved of the order of
rejection of his grant of pension by the Government, he
may pursue appropriate remedy provided in law.
c) Against the rejection of the freedom fighter pension,
on 28.11.2001, the appellant filed W.P.(C) No. 7439 of
2001 before the High Court and the same was allowed on
24.11.2003 by the learned single Judge with costs
quantified at Rs.10,000/- and also directed the
Government to grant pension to the appellant under the
Scheme w.e.f. 01.08.1980. On not being released the
pension by the Government, the appellant filed a contempt
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petition on 08.09.2004. Challenging the judgment of the
learned single Judge dated 24.11.2003 in W.P. (C) No.
7439 of 2001, the Government filed L.P.A. No. 710 of 2004
before the Division Bench of the High Court. Vide order
dated 30.01.2006, the Division Bench allowed the L.P.A.
and set aside the order of the learned single Judge.
Aggrieved by the said order, the appellant has preferred
this appeal by way of special leave petition before this
Court.
3) Heard learned counsel for the appellant as well as the
respondent.
4) The only point for consideration in this appeal is
whether the appellant has made out a case for grant of
freedom fighters pension in terms of Swatantra Sainik
Samman Pension Scheme, 1980 (hereinafter called “the
Scheme”). According to the appellant, he remained
underground for more than six months as a proclaimed
offender. The Scheme provides for the manner of
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application, availability of application forms, the time
within which the applications are to be made, how claims
are to be proved etc. In this case, the appellant made the
application on 20.06.1981 which within the time
prescribed.
5) Now, let us consider the manner in which the claim
is to be proved which is provided in Para 9 of the Scheme
which reads thus:
"9. HOW TO PROVE THE CLAIMS (EVIDENCE
REQUIRED)
The applicant should furnish the documents indicated
below whichever is applicable.
(a) IMPRINSONMENT/DETENTION ETC.
Certificate from the concerned jail authorities District
Magistrate or the State Government in case of non-
availability of such certificates co-prisoner certificate
from a sitting MP or MLA or from an ex-MP or an ex-
MLA specifying the jail period (annexure I in the
application form)
(b) REMAINED UNDERGROUND:
(i) Documentary evidence by way of
court’s/government orders proclaiming the applicant as
an offender, announcing an award on his head, or for
his arrest or ordering his detention
(ii) Certificates from veteran freedom fighters which
had themselves undergone imprisonment for five years
or more if the official records are not forthcoming due to
their non-availability.
(c) INTERNMENT OR EXTERNMENT
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(i) Order of internment or externment or any other
corroboratory documentary evidence.
(ii) Certificates from prominent freedom fighters who
had themselves undergone imprisonment for five years
or more if the official records are not available.
(Annexure II in the application)
Note:
The Certifier veteran freedom fighters in respect of
underground suffering, internment/externment and the
applicant should belong to the same administrative unit
before the reorganization of States and their area of
operation must be the same.
(d) LOSS OF PROPERTY JOB ETC.
Orders of confiscation and sale of property orders of
dismissal or removal from service.”
As stated earlier, the appellant laid his claim only on the
ground that he had remained underground for more than
four years and from the aforesaid provision, it can be seen
that there are two modes of providing the evidence for the
same. The first one is by producing documentary
evidence and the second where the official records are not
forthcoming due to their non-availability, the claim is to
be proved by certificates from the veteran freedom fighters
who have themselves undergone imprisonment for five
years or more. In the case of the appellant, he asserted
that the official records are not traceable due to non-
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availability and submitted a certificate from one Shri
Jagdish Singh who was a veteran freedom fighter.
Learned counsel for the appellant also brought to our
notice the recommendation dated 09.04.1997 of the
Government of Bihar recommending the case of the
appellant for payment of freedom fighters pension under
the Scheme w.e.f. 01.08.1980.
6) It is true that based on the particulars furnished by
the appellant, the State Screening Committee, Bihar
recommended the case of the appellant for payment of
pension under the Central Scheme. However, the Central
Government in the absence of any authenticated records
particularly the details about “underground suffering” for
a minimum period of six months and finding that the
certificate issued by Shri Jagdish Singh is not sufficient
rejected the claim of the appellant.
7) In the light of the controversy particularly, the claim
of the appellant and the stand taken by the Government of
India, we have carefully gone through the eligibility
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provisions as well as relevant criteria to prove the claim
under the Scheme. In his application dated 07.03.1981,
the appellant had merely indicated that he remained
underground from 1942 to 1946. As rightly pointed out
by the respondent, he did not indicate the details of the
case in which he had gone underground. Though the
appellant has placed record of proceedings which show
that the relevant records were not available with them, the
fact remains the said Non-availability of Records
Certificate (NARC) did not indicate the date of disposal of
the case as well as the relevant provisions of the Indian
Penal Code. In such circumstances, as rightly pointed out
by the respondent, it is not clear whether the said case, if
any, was related to freedom struggle and what was the
duration of the claimed suffering of the appellant. Though
the appellant had given an opportunity to furnish the
name of co-accused in the same case, who are presently
getting pension on the basis of GR NO. 985/1942, the
appellant was unable to furnish such details.
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8) Insofar as the Personal Knowledge Certificate (PKC) of
Shri Jagdish Singh, it is the stand of the Government of
India that the same is not acceptable as the certifier was
in jail for most of the period of the claimed suffering of the
appellant. In view of the same, it could not be possible for
the certifier to verify the period as well as the reasons of
the claimed suffering of the appellant based on his
(Jagdish Singh) personal knowledge.
9) Though the State Advisory Committee and the
Government of Bihar recommended the case of the
appellant for Central Scheme, it is pointed out by the
learned counsel for the respondent that the same is not
binding on the Central Government in the absence of
required proof for the same. In other words, the
recommendation of the State Government is not final or
conclusive and it is for the authority of the Central
Government granting such pension to make further
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inquiry in the matter in terms of various conditions
prescribed in the Scheme and to take a final decision.
10) In the light of the above discussion, we conclude that
the appellant has failed to establish his claim for freedom
fighter pension in terms of the Central Scheme, on the
other hand, we are in agreement with the conclusion
arrived at by the Division Bench of the High Court.
Consequently, the appeal fails and the same is dismissed.
No order as to costs.
……………………………………J.
(P. SATHASIVAM)
……………………………………J.
(R.M. LODHA)
NEW DELHI;
SEPTEMBER 27, 2010.
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