JUDGMENT
Badar Durrez Ahmed, J.
1. The petitioner seeks a writ of mandamus directing the respondents to release the ‘Freedom Fighters’ pension to the petitioner w.e.f. 01.08.1980 in terms of the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as ‘the said Scheme’).
2. Learned counsel for the petitioner has, in the first instance, referred to the scheme. He states that the petitioner would be covered under explanation 5 of paragraph 4 of the said scheme which reads as under:-
“WHO IS ELIGIBLE?
4. For the purpose of grant of Samman pension under the scheme, a freedom fighter is:-
(a) A person who had suffered a minimum imprisonment of six months in a mainland jails before Independence. However, ex.-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India.
(b) The minimum period of actual imprisonment for eligibilities of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1-8-1980.
EXPLANATION
1. Detention under the orders of the competent authority will be considered as imprisonment.
2. Period of normal remission up to 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.
5. 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.
(c) A person interned in his home or externed from his district provided the period of internment / externment was six months or more.
(d) A person whose property was confiscated or attached and sold due to participation in the freedom struggle.
(e) A person who became permanently incapacitated during firing or lathi charge.
(f) A person who lost his job (central or state Government) and thus means of livelihood for participation in national movement.
A MARTYR is a person who died or who was killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British.”
3. The petitioner claims to be a person who remained underground for more than six months and that he was a proclaimed offender. Accordingly, the petitioner claims eligibility for the grant of pension under the said scheme in terms of paragraph 4 referred to above. The scheme provides for the manner of application, availability of application forms, the time within which the applications are to be made, how the claims are to be proved, etc. In this case, the petitioner made the application on 20.06.1981 which is within the time prescribed.
4. We are here concerned with the manner in which the claim is to be proved. Paragraph 9 of the scheme provides for that and reads as under:-
“9. HOWTO PROVE THE CLAIMS (EVIDENCE REQUIRED)
The applicant should furnish the documents indicated below whichever is applicable.
(a) IMPRISONMENT/DETENTION ETC.
Certificate from the concerned jail authorities, District Magistrate or the State Government in case of non-availability of such certificates co-prisoner certificates from a sitting M.P. or M.L.A. or from an ex-M.P. or an ex-M.L.A. 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 who 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 (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 reorganisation 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.”
In particular, we are concerned with applicants who had remained underground and from the aforesaid provision, it can be seen that there are two modes of providing evidence for the same. The first is by documentary evidence and, the second, where official records are not forthcoming due to their non-availability, the claim is to be proved by certificates from veteran freedom fighters who have themselves undergone imprisonment for five years or more.
5. In the present case, the petitioner has stated that the official records are not forthcoming due to their non-availability and as such, the petitioner submitted the certificate of one Shri Jagdish Singh, who was a veteran freedom fighter. The said certificate is on record at page 46 of the paper book. The State Government of Bihar by its recommendation dated 09.04.1997 also clearly indicated as follows:-
“It is the recommendation of the State Government that order be issued soon regarding approval of freedom fighters Samman Pension to him from 01.08.1980 and the same be also informed to the State Government”
The facts and circumstances set out in the said recommendation are important and, therefore, are reproduced hereinbelow:-
“As per direction, I have to say that Shri Mahender Singh has submitted application for approval of Freedom Fighters Samman Pension under the abovementioned scheme which has been received in the office of the State Government before the date fixed for submitting the application form. The claim of the applicant is that he was underground from 1942 to 1946 due to taking part in the freedom fighters movement.
The applicant has submitted the following evidence in support of his claim of being underground:-
1. He has submitted a certificate of non-availability of Court/s document which has been verified.
2. In result of non-availability of court’s document, he has submitted a substitute certificate from his then District Veteran Freedom Fighter Shri Jagdish Singh, from which it is certified that the applicant Shri Mahender Singh was underground from 20 August 1942 till September, 1946. The said certificate has been verified by the person concerned who has issued it.
3. On the basis of mentioned facts this case was put up for consideration in the meeting of State Advisory Committee held on 12/13-12-1995. The Committee after discussing it has recommended for approval of his freedom fighter Samman Pension from Central Revenue Fund. Enclosing a copy of the original application of the applicant, non-availability of certificate of Courts document, copy of the certificate issued by Veteran freedom fighter, verified copy of the mentioned certificate, short statements regarding the case taken by the Committee, it is the recommendation of the State Government that order be issued soon regarding approval of freedom fighters Samman Pension to him from 1.8.1980 and the same be also informed to the State Government.”
6. From the aforesaid recommendations of the State Government, it becomes clear that there was non-availability of Court documents; that the petitioner had submitted a substitute certificate from his then District Veteran Freedom Fighter, Shri Jagdish Singh; that the certificate had been verified by the person who had issued the same; that the matter had been placed for consideration before the State Advisory Committee at the meeting held on 12/13.12.1995; the Committee, after discussing the matter in detail, recommended the approval of grant of Freedom Fighter’s Pension under the Central Revenue Fund. All the documents that were necessary under the scheme were enclosed. Thereafter, the petitioner made a representation before the Central Government for the grant of pension as per the recommendations of the State Government. Unfortunately, as no reply was forthcoming, the petitioner was constrained to file a writ petition in this Court being CWP 1248/1998. That writ petition was dismissed as withdrawn in view of the fact that certain clarifications had then been sought from the petitioner and it was directed that as and when the same were supplied, the representation would be disposed of as expeditiously as possible, preferably within three months of receipt of the clarifications. Thereafter, the clarifications, etc. were supplied. However, by an order dated 17.12.1998, the petitioner’s representation was rejected on the ground that the district authorities have not been able to verify the details given in the non-availability of records certificate submitted by the petitioner. This finding appears to be in direct contradiction to the recommendations of the State Government itself which has been reproduced in detail hereinabove. Being aggrieved by this order of rejection, the petitioner filed a contempt petition being CCP 484/1998 in CWP 1248/1998. However, this contempt petition was dismissed by an order dated 27.04.2001 by this Court. While dismissing the contempt petition, this Court made the following observations:-
“Since this court is not required to go into the question as to whether or not the petitioner was entitled to pension under the scheme and as to whether or not his representation has been rightly rejected, the petitioner will be at liberty to pursue appropriate remedy as may be permissible in law to seek redressal of his grievance, if any, against the order passed by the Government of India rejecting his representation.”
7. It is in view of this that the present writ petition has been filed by the petitioner challenging the order of rejection. Nobody has entered appearance on behalf of the respondents today when the matter was taken up for hearing. However, there is a counter-affidavit on record on behalf of respondents 1-3, which had been filed on 20.02.2003. In the said counter-affidavit, it is admitted in para 3 (b) thereof, that:
” In the case of an applicant claiming underground suffering, he has to submit Court’s/Govt.’s records in support of his sufferings and if such records are not available, a NARC from the State Government + a Personal Knowledge Certificate (PKC) from a prominent freedom fighter having at least 2 years proven jail suffering. As per provisions of the Scheme, the applicant claiming underground suffering should fulfilll any of the following conditions for being eligible for grant of SSS Pension:
(i) He should be a proclaimed offender; or (ii) An award for his arrest/head was announced against him; or (iii) A detention order was issued against him but could not be served.”
8. It appears that all that was required to be done under the said scheme has been done by the petitioner and the State Government had also recommended the petitioner’s case for grant of petitioner’s case under the scheme. All the documents that were necessary were forwarded Along with the recommendation to the Central Government. Yet the Central Government has rejected the petitioner’s application. The standard of proof that is required in such cases where grant of pension to freedom fighters is concerned, is not the same as is required in a criminal case or in a case to be adjudicated upon rival contentions upon evidence of the parties. The Government must take a liberal view of the matter and it does not seem proper that, where the State Government has categorically recommended the case of the petitioner after verifying the certificate and also indicating that the records were not available, the Central Government has casually rejected the representation for grant of pension under the scheme. In this regard, the observations of the Supreme Court in the case of Gurdial Singh v. Union of India & Ors: would be pertinent and, in particular, the observations made in paragraphs 7 & 8 thereof which are as under:-
“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 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 favor unless the same is rebutted by cogent, reasonable and realiable evidence.
8. We have noticed with disgust that the respondent authorities have adopted a hypertechnical 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 closed mind, completely ignoring the verdict of this Court in Mukund Lal Bhandari case. We further feel that after granting the pension to the appellant, the respondents were not justified in rejecting his claim on the basis of material which already existed, justifying the grant of pension in his favor. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in Mohan Singh v. Union of India2 decided on 1-6-1995 and CWP No. 14442 of 1995 decided on 11-12-1995.
9. There is sufficient probability from the evidence on record that the petitioner went underground and was a proclaimed offender. There is no evidence forthcoming to rebut the same. In this view of the matter, the Central Government should not have, therefore, rejected the representation of the petitioner.
10. Accordingly, the writ petition is allowed. The respondents are directed to grant the petitioner the pension under the scheme w.e.f. 01.08.1980 as originally recommended by the State Government with costs which are quantified at Rs. 10,000/-.