ORDER
1. The petitioner challenges an order of the second respondent cancelling the State freedom fighters’ pension awarded to him earlier in the year 1980-81.
2. The petitioner alleges in the affidavit filed in support of the writ petition that he is a native of Pannaikadu village of Kodalkanal taluk, that he was imprisoned at the Central Jail at Madurai in the months from May to July 1941, that he took active part in the Satyagraha movement, and that he went
underground for about 9 months during 1942-43. It is further alleged in the affidavit that he was awarded about 7 acres of land fay the Collector of Madurai in the year 1950 itself for the sacrifices rendered by him for the freedom of our country. It seems that in the year 1981, he made an application to the first respondent for the grant of freedom fighters’ pension through the third respondent enclosing the co-prisoners certificate issued by one P. S. Velusamy Gowder certifying that the petitioner was in Central Jail, Madurai during the period from 8-5-1941 to 7-7-1941. After due enquiry, the petitioner was awarded freedom fighters’ pension by order dated 13-8-1981 and the petitioner has been receiving the said pension regularly. It is further alleged in the affidavit that some misunderstanding arose between him and his brother, that on the complaint given by his brother against him, a show cause notice was issued on him calling upon to produce a proof of his detention in Central Jail at Madurai within a month from the date of receipt of that notice, that he sent a reply notice on 31-7-1989 asking time for the production of records with a detailed explanation. The petitioner was replied by the second respondent by letter dated 4-8-1989 granting time till 30-8-1989 staling that he should produce the records on or before 30-8-1989 failing which the grant of pension will be cancelled. The petitioner gave a detailed reply on 18-9-1989 enclosing therewith xerox copies of documents right from 1950 onwards. By the impugned order, the second respondent cancelled the pension. The reason for such cancellation was given in a cryptic manner that the pension was sanctioned to the petitioner on mistaken grounds and on false information furnished by the petitioner. It is further ordered in the impugned order that the amount of pension so far paid to the petitioner to be recovered from him.
3. A counter affidavit has been filed by the respondents. The fact of award of pension in the year 1981 to the petitioner is not denied. It is stated in the counter affidavit that on an allegation levelled against the petitioner by one S. P. V. Alagarsamy stating that the petitioner was receiving pension fraudulently
along with others, the matter was referred to Deputy Inspector General of Police, C.I.D. Madras for verification and that the Deputy Inspector General of Police, C.I.D. Madras reported that a perusal of the convict register of Central Prison, Madurai for year 1941, revealed that the petitioner was not in prison during the period as claimed by him and certified by P. S. Velusamy Gowder and as such the claim that he was imprisoned from 8-5-1941 to 7-7-1941 is not correct. It is further claimed in the counter affidavit that on the basis of the said report, a show cause notice was issued. It is further claimed in the counter affidavit that according to Rule 8 of the State Freedom Fighters’ Pension Rules, a pension sanctioned is liable to be cancelled, if it is given on mistaken grounds. It is further stated in the counter affidavit that the under Secretary (political pension) visited the prison at Maduari and inspected the convict register and recorded that the name of the petitioner did not find a place in the convict register maintained by the Superintendent, Central Jail, Madurai, that the sanction of pension is only in the nature of discretionary and that it is open to the petitioner to produce acceptable documentary evidence. It is further claimed in the counter affidavit that the jail suffering of a freedom fighter should be proved by production of official documentary evidence such as extracts of jail records, court orders, arrest warrant etc. or that it should be testified by the co-prisoner’s certificate of a former Member of Parliament or former Member of Legislative Assembly. The sum and substance of the counter filed by the respondent is that on the sole ground that on verification the records had not shown the name of the petitioner in the convict register, his name had been cancelled. It is further claimed in the counter affidavit that since the petitioner has produced false evidence regarding his jail sufferings and he was not in Central Jail, Madurai as claimed by him, he has no right to ask for the State Freedom Fighters’ Pension.
4. I have heard the arguments of Mr. N. Chandra Raj, the learned counsel for the petitioner and of Mr. M. Govindarajan, the learned counsel for the petitioner and of Mr. M. Govindarajan, the learned Additional
Government Pleader (writs) appearing for the State. The fact that the petitioner had been granted pension in the year 1981 is not disputed. The only ground on which the cancellation and recovery order is made is that as per the inspection of Under-Secretary to the Prison at Madurai, he was not able to find out his name in the convict register for the period from 8-5-1941 to 7-7-1941. The entire counter-affidavit proceeds on the footing that the entry in the convict register has got some sanctity behind it. The guidelines issued by the State for the grant of Freedom Fighters’ Pension clearly shows that it is open to the persons like that of the petitioner to produce co-prisoner’s certificate or a certificate either from Ex. M.L.A. or from Ex. M.P. it is not denied in the case on hand that the petitioner has produced a certificate from a co-prisoner. When Rules and the guidelines insist upon the production of a certificate to the effect that he underwent imprisonment to the proof of getting Freedom Fighters’ Pension and when in fact it has been produced by him, I do not see how the respondents can come to the conclusion that the petitioner has made a false representation. In my view, the petitioner has applied for the Freedom Fighters’ Pension correctly, enclosing therewith all the documents, under the guidelines on 14-5-1981. Apart from that, I am not satisfied with the manner in which the respondent-State disposed of the matter. It is not an answer to say that the petitioner has no right to receive the pension. I am of the view that in so far as the pension is concerned with regard to the petitioner, it has been granted to him in the year 1981 and that he was vested with right to receive the same till it is cancelled, in the proper way and under a proper procedure under the Rules. So far as the pension comes under the consolidated fund of India, the petitioner has got a right to come before this Court in a petition under Article 226 of the Constitution of India and complain that he has not been given the Freedom Fighters’ Pension for which he is eligible under the Rules. The impugned order, as I have already stated is very cryptic. When the petitioner has filed so many documents, ranging from 1950, the respondent has hot
considered any one of the documents. The respondent-State seems to have proceeded on the footing that the petitioner is not a Freedom Fighter according to the convict register. In my view, the respondent-State ought to have seen that the petitioner had been assigned Government lands as early as in the year 1950 measuring about 7 acres, for his taking part in the freedom fight. There are records to prove that he is one of the freedom fighters of this land, which in my view, the respondent-State ought to have taken into consideration the evidence before deciding the issue on hand. In my view, giving importance to the entry in the convict register alone will not hold good, especially after a gap of nearly 40 years. In certain cases, I find that he convict register has been eaten away by white ants. I am able to sec that the Undersecretary was not able to find out, not only the name of the petitioner but also main other names, in the convict register. It is settled law that even administrative orders have to be, passed in a fair manner and in this case I am sure that it has not been done so. I am of the view, that the respondent-State has not taken all the evidence into consideration in the correct perspective. In view of that, the impugned order is set aside, the writ petition is allowed and the matter is remitted back to the second respondent to give an opportunity afresh to the petitioner and if necessary to give a personal hearing and pass an order within law two months from the date of receipt of a copy of this order. I do hope that the administrative authorities will understand that once the impugned order is set aside, the petitioner is entitled to the pension up to this date.
5. Petition allowed.