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Madras High Court
R.Murugamalai vs Union Of India on 4 August, 2010
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.08.2010

CORAM

THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN

W.P.NO.17403 OF 2009


R.Murugamalai							... 	Petitioner  				
 Versus

Union of India
Rep.by its Secretary to Government 
Ministry of Home Affairs
Lok Nayak Bhawan,
Freedom Fighters' Division,
New Delhi  110 003.						... 	Respondent
									

PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of mandamus directing the respondent to grant Freedom Fighters' Pension under the "SWATHANTHIRA SAINIK SAMMAN SCHEME" to the petitioner in view of his valid and vigorous participation in the Freedom struggle particularly in Quit India Movement, 1942, considering the petitioner's representations made to the respondent with the valuable certificates and records enclosed with the petitioner's representations. 
		
		For Petitioner	: 	Mrs.Karthika Ashok 		

		For Respondent  	:	Mr.Sivagnanasambandam (CGC) 			
		
O R D E R

The petitioner is a Freedom Fighter. According to him, an arrest warrant was pending against him during the Quit India Movement and he successfully evaded the arrest. He remained underground from 1942 to 1944. He applied for pension under the “SWATHANTHIRA SAINIK SAMMAN PENSION SCHEME, 1980” vide application dated 12.08.1981. Along with his application, he enclosed two certificates, one from Mr.A.B.Nagier and another from Mr.A.M.Lakshmanan certifying that the petitioner remained underground during 1942 to 1944, while the British police were trying to arrest him for his active participation in the Gandhian Movement, including the Quit India Movement. Unfortunately, his application was rejected by the respondent by an order dated 28.02.1983 on the ground that he failed to produce any acceptable documentary evidence relating to his suffering. The petitioner made a review application dated 01.11.1986, enclosing the certificate from one Mr.Gangadhara Parasuram certifying that the petitioner remained underground for about three years, evading the arrest of British police for his activities during the freedom struggle. However, no order was passed on the review application. This forced the petitioner to approach this Court by filing the present present writ petition seeking for a direction to the respondent to grant Freedom Fighters’ Pension under the “SWATHANTHIRA SAINIK SAMMAN PENSION SCHEME, 1980”.

2.Notice of motion was ordered on 25.11.2009.

3.Heard Mrs.Karthika Ashok, learned counsel for the petitioner and Mr.Sivagnanasambandam, learned counsel for the respondent.

4.The learned counsel for the petitioner submits that originally a Freedom Fighters’ Pension Scheme was framed in the year 1972. Later, the Scheme was modified into one of SWATHANTHIRA SAINIK SAMMAN PENSION SCHEME, 1980 (shortly “1980 Scheme”) and the Scheme is still in force. According to her, the petitioner is entitled to pension under the 1980 Scheme.

5.The learned counsel for the petitioner has brought to my notice clause 4 of the Scheme, which defines about eligibility of the persons for pension under the Scheme. Clause 4(b)(2) of the explanation to clause 4 of the Scheme is relied on by the learned counsel for the petitioner to claim pension under the Scheme. As per clause 4(b)(2) of the explanation to clause 4, a person who remained underground for more than six months evading arrest from the British police, is entitled to pension. The learned counsel also relies on clause 9 of the Scheme that deals with as to the evidence required to prove the sufferings of the freedom fighters. In clause 9, the evidence that is required to prove that the freedom fighter remained underground, is to produce a certificate from veteran freedom freedom fighter, who had undergone imprisonment for five years or more, if the official records relating to the arrest warrant or proclamation that the freedom fighter was an offender, are not forthcoming due to non-availability.

6.Citing clause 9 along with clause 4(b)(2) of the explanation to clause 4 of the Scheme, the learned counsel for the petitioner submits that the respondent was not correct in rejecting the application for pension, as the petitioner complied with the conditions stated in clause 9 of the Scheme. It is stated that the persons, who issued certificates, are in receipt of pension under the 1980 Scheme and all of them remained in prison for more than five years.

7.On the other hand, the learned counsel for the respondent submits that if the required certificates are produced, the respondent will consider the same, in accordance with the 1980 Scheme. In fact, the learned counsel submits that the certificates could be issued now by the persons, who were imprisoned for two years during freedom struggle and it is not necessary that the person should have 5 years imprisonment as prescribed in the 1980 Scheme. It is also stated that a relaxation was made subsequently in this regard. It is further submitted that if certificates were issued by the freedom fighter, who underwent imprisonment for more than two years and those persons are in receipt of pension, the respondent could consider the application and pass appropriate orders.

8.The petitioner made an application on 12.08.1981 claiming pension under the 1980 Scheme. In his application, he categorically stated as follows:

“Certificates from Messrs. A.M.Lakshmanan, A.B.Nagier, Freedom Fighters imprisoned for more than five years and also other certificates from other Freedom Fighter regarding the applicant’s activities and participation in the Freedom Struggle are enclosed. The details about the participation of the Applicant in the Freedom Struggle and underground Movement and in the National Students Movement are stated in the above certificates.”

The certificates issued by Thiru.A.M.Lakshmanan and Thiru.A.B.Nagier are enclosed in the typed set of papers. Both of them categorically stated that the petitioner remained underground evading arrest from the British Police for his active participation in the Gandhian Movement, pursuant to the arrest warrant. It has been categorically stated that the petitioner remained underground during the period from 1942 to 1944. Thiru.A.B.Nagier stated about the period of imprisonment underwent by him. Thiru.A.B.Nagier stated that he was arrested for Madurai Tirumalai Naicker Mahal Bomb Case in the year 1937 and he was convicted under Sections 4A and 4B of Explosives Act for six years. It is also stated that on 23.10.1942, he was again imprisoned under Rule 26(5) of Defence of India Rules and he was detained in the Central Jail, Vellore for one year. Thiru. A.M.Lakshmanan, stated in his certificate that he was convicted for more than 5 years and he was imprisoned in the Bellary Central Jail. Both of them also gave details about the pension paid by the respondent under the 1980 Scheme.

9.As rightly contended by the learned counsel for the petitioner, the petitioner has clearly established his right to claim pension under 1980 Scheme. Clause 4(b)(2) of the explanation to Clause 4 of the Scheme is extracted hereunder:

“4.WHO IS ELIGIBLE?

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 the 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 eligibility 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 upto 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:

3. one for whose detention order was issued but not served. ”

10.In view of the explanation to clause 4 of the Scheme, a person who remained underground for more than 6 months are also entitled to pension under the Scheme. Clause 9 of the Scheme is also relevant and the same is extracted hereunder.

“9.HOW TO 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 Magistrates 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 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.”

11.Clause 9(b)(2) that is extracted above makes it clear that certificates from Thiru.A.M.Nagier and Thiru.A.M.Lakshmanan are sufficient for grant of pension under 1980 scheme. But unfortunately, the respondent rejected the application of the petitioner by the order dated 28.02.1983 on the ground that the petitioner failed to produce any acceptable evidence for his sufferings. In my view, this rejection is contrary to clause 9(b)(2) of the 1980 Scheme.

12.The judgment of the Honourable Apex Court in GURDIAL SINGH VS. UNION OF INDIA reported in 2001 (8) SCC 8, supports the case of the petitioner. Para 7 of the judgment is relevant and the same is extracted hereunder:

“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 favour unless the same is rebutted by cogent, reasonable and reliable evidence.”

13.The following judgments of this Court relied on by the learned counsel for the petitioner also supports the claim of the petitioner.

1) K.APPANRAJ VS. THE SECRETARY TO GOVERNMENT OF INDIA AND OTHERS reported in CDJ 2004 MHC 149

2) THE GOVERNMENT OF INDIA VS. T.R.T. THIRUMALAIVASI AND ANOTHER reported in CDJ 2008 MHC 5374

14.Hence the respondent was not correct in stating that the petitioner failed to produce any acceptable documentary evidence relating to his sufferings, when he produced certificates from freedom fighters, who are in receipt of pension from the respondent, to the effect that the petitioner was remained underground during 1942 to 1944.

15.The petitioner again made a review petition in 1986 enclosing another certificate from one Mr.Gangadhara Parasuram. In the typed set, a certificate of suffering undergone by Mr.Gangadhara Parasuram is enclosed at page No.33. As per this certificate, he suffered actual imprisonment for more than 5 years during the freedom struggle and was lodged in various jails. The petitioner also stated in the affidavit that he produced certificate from Dr.T.Kannan, a freedom fighter, who was also imprisoned for more than 5 years. The certificate of suffering relating to Dr.T.Kannan is enclosed at page No.17 of the typed set of papers. He suffered imprisonment for more than 5 years during the freedom struggle and was lodged in various jails. It is stated that after 1986, the petitioner made certain representations and there was no response from the respondent and thus he approached this Court.

15.The learned counsel for the petitioner fairly brings to my notice the note to clause 9 of the Scheme requires that the certifier veteran freedom fighters in respect of underground suffering should belong to the same administrative union. That is, according to her, both the certifier and the person, who remained underground should belong to same District. It is stated that both Thiru.Gangadhara Parasuram and Thiru.A.B.Nagier belonged to the same District, to which the petitioner belongs. That is all belonged to Madurai District.

16.In any event, note to clause 9 could not be given such a restricted meaning, particularly, the person who remained underground, could migrate from one area to another area, in order to evade the arrest of police. Hence, this fact should be taken into account while considering the certificate under clause 9(b)(2) of the Scheme. If a certificate by a veteran freedom fighter is issued stating that the concerned person remained underground during the freedom struggle, that itself is sufficient to grant pension. In this case, the petitioner is now aged 86 years. He participated in the freedom struggle and remained underground for about three years, evading arrest from British police, as per the certificates given by the aforesaid four freedom fighters.

17.In these circumstances, the writ petition is disposed of with a direction to the respondent to consider the review application made by the petitioner on 01.11.1986 and pass appropriate orders relating to grant of pension under SWATHANTHIRA SAINIK SAMMAN PENSION SCHEME, 1980, in the light of the observations made above, within a period of four weeks from the date of receipt of a copy of this order. No costs.

TK

To

The Secretary to Government
Government of India
Ministry of Home Affairs
Lok Nayak Bhawan,
Freedom Fighters’ Division,
New Delhi 110 003


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