Mahender Singh vs Union Of India

b) On 07.09.1981, the appellant herein filed an

application for pension under the Scheme which was

2 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order dated 26.03.1998, the petition was withdrawn by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

3 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

4 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

5 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-

7 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

8 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

10 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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