Hari Krishan vs Union of India (UOI) and Others

Gulab C. Gupta, C.J.—The Petitioner claims to be a Freedom Fighter of the erstwhile Princely State of Bilaspur merged with the State of Himachal Pradesh and claims pension under the Freedom Fighters Pension Scheme 1972, as liberlised by Swatantra Sainik Samman Pension Scheme, 1980. Since his claim has been rejected by the Respondent No. 1, Union of India by order dated 6th March, 1982 (Annexure RB/1) on the ground that there was no acceptable evidence in that behalf, the Petitioner has preferred this writ petition under Article 226 of the Constitution of India, challenging the legal validity thereof.

The Petitioner specifically submits that he was an integral part of the freedom struggle launched by the Congress Party for unification of India and integration of the princely States with the Union of India and has faced imprisonment, externment and other difficulties in that process. According to him, he was a member of the Praja Mandal Movement at Bilaspur and was the Joint Secretary of its Amritsar Branch. Because of his participation in the Freedom Struggle, he was externed from the State of Bilaspur by the Ruler thereof. According to him, the erstwhile Ruler of Bilaspur had resisted the merger of State of Bilaspur with the Union of India and the said attitude necessitated the merger movement in the said State. The Petitioner claims to be the participant in the said movement and suffered externment. According to him, one Daulat Raid Sankhian, another freedom fighter and a Minister of the State of Himachal Pradesh, was also a freedom fighter alongwith him and had certified that the Petitioner had, been externed from erstwhile State of Bilaspur in the year 1946 and could come back to the said State only after its merger. The said D.R. Sankhian, according to the Petitioner, is a recognised freedom-fighter and recipient of the pension and could for that reason certify the bonafides of the Petitioner. It is further submitted that the State Government has also recognised- the Petitioner as a freedom-fighter and has granted him the. free-travel-pass to travel in the State Transport Buses besides a monthly pension of Rs. 250/-. It is also submitted that the Petitioner''s name figures as a freedom-fighter in the text-book prescribed by the Respondent, state Government of Himachal Pradesh for class IV students. Inspite of all these certificates and recognition, the Respondent Union of India is hot recognising the Petitioner as a freedom fighter and has denied him the benefits of the aforesaid scheme. The denial, according to the Petitioner, is arbitrary and violative of Article 14 of the Constitution. It is, therefore, submitted that this Court should exercise its extra-ordinary jurisdiction and direct Respondents No. 1 and 2 by a writ in the nature of mandamus to grant him the pension under the aforesaid Scheme.

2-A. Respondents No. 1 and 2 have, in their reply, denied the Petitioner''s claim and submitted that he has not been able to establish by producing acceptable evidence that he was a freedom fighter entitled to pension under the aforesaid Scheme. It is particularly submitted that the certificates submitted by the Petitioner do not establish that he is entitled to the pension. As regards certificate of Shri Daulat Ram Sankhian, it is submitted that the said certificate does not show that the Petitioner was externed for a period of six months or more from the erstwhile Princely State of Bilaspsur. The certificate filed by the Petitioner alongwith the writ petition is also said to be of no consequence in the matter. It is, therefore, submitted that the Petitioner is not entitled to the pension under the aforesaid Schemes.

This Court by its order dated 21.11.1994 required the Respondents'' to produce the original record of the Petitioner''s case, which has been done. On a perusal of the aforesaid record, it is clear to this Court that the Petitioner''s case was recommended for consideration of the Respondent No. 1 and grant of pension alongwith four other cases. The letter of the Respondent State Government which has been filed as Annexure RA-1, indicates that all the five persons have produced evidence to show that they had suffered harassment during the freedom struggle and were externed from the Bilaspur State by the erstwhile Ruler of the said State. The letter further mentions that though the official documents are not available, certificates from co-prisoners etc. have been produced. The letter further states that "it is revealed from the enclosed documents that these freedom fighters had suffered much for taking part in the freedom movement to liberate India and on account of this these freedom fighters are entitled to the pension." This recommendation was considered at various-levels in the office of the Respondent No. 2 and eventually rejected on the ground that the Petitioner has not produced "any acceptable documents evidence" of the claims suffering. This was communicated to the Petitioner by the order impugned. The Respondents have maintained the same stand in this Court and submitted that even the further evidence produced by the Petitioner in this Court does not satisfy the necessary requirements. It is, therefore, claimed that the petition deserves to be dismissed.

It is one of the objections of the Respondents that the claim of the Petitioner was rejected in the year 1982 but he did not approach this Court immediately thereafter. It is, therefore, submitted that the claim deserves to be dismissed on the ground of undue delay. The learned Counsel for the Petitioner, however, referred to paras 3, 5 and 6 of the petition and, submitted that the Petitioner had thereafter produced several certificates including the recognition of his services as a freedom fighter by the Respondent State, of Himachal Pradesh and sent the same for consideration but the Respondents were adamant and did not even care to look into the said material and hence the was compelled to file the writ petition. It is, ''therefore, denied that the writ petition is belated. That the Petitioner had been making approaches from time to time is not denied. It is also not denied that subsequent to the rejection of his claim by the impugned order, he has submitted further certificates. In view of these facts, it is not possible to accept that the Petitioner has been sleeping over his. rights and for that reason lost his claim. Indeed, the facts on record clearly indicate that the Petitioner has been collecting further evidence and had been producing the same from time to time but since he failed to get his case reviewed, he has approached, this Court by filing this writ petition. In this connection para 7 of the reply affidadvit is important wherein it has been stated that "if the Petitioner sends certificate of his externment from the then Dy.S.P./S.P. or Minister Incharge of Ruler''s regime, they will have no objection in reviewing his case." In view of this readiness of the Respondents to review the case, the petition cannot be thrown out on the ground of delay.

As regards the merits, it is noticed that the Respondents are willing to review the claim of the Petitioner in case he sends certificates of his externment from the then Dy.S.P./S.P. or Minister Incharge of Ruler''s regime-. The said condition is said to be onerous and otherwise contrary to the provisions of the two schemes. The 1972 Scheme does not require any such certificate. In fact in so far as imprisonment/detention is concerned, a certificate from co-prisoner or a sitting M.L.A. or sitting M.P. or from an Ex-M.L.A. or Ex-M.P. is considered sufficnent. Similarly, with regard to the internment or externment, an affidavit with a copy of the order of internment or. externment or any other corroboratory documentary evidence is concerned sufficient. 1980 Seheme also maintains the aforesaid requirements. But so far as internment or externment are concerned, it further provides that a certificate from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available, would be accepted as proof of externment and internment. These Schemes do not require any freedom fighter to submit certificate(s) from the then Dy.S.P./S.P. or the then Minister Incharge of the Rules''s regime. No reason whatsoever is assigned by Respondents No. 1 and 2 to justify the aforesaid departure in case of the Petitioner. Clearly, therefore, it is case where the Petitioner''s case is not being judged by the standard applied for grant of pension to other freedom fighters. The impugned order, therefore, cannot be accepted as legal and justified.

The next and important question is whether the Petitioner has made out a case for grant of pension. Para-9 of 1980 Scheme deals with how to prove the claims (evidence required). Clause-(c) of this paragraph deals with the externment or internment'' and requires (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. There is no justification for treating the Petitioner differently. According to this Court, the Petitioner would be entitled to pension under the Schemes in case the aforesaid requirement is proved.'' Admittedly the order of externment is not available. Indeed, it is submitted that the externment has been by oral order of the erstwhile Raja of the Princely State. Under the circumstances, the other corroboratory documentary evidence would be important. In the instant case, the Petitioner has been recognised as a freedom fighter by the Respondent State who has granted him pension of Rs. 250/- per month. The fact that his name finds mention in the textbook for class IV students is also an important factor. No State would like its children to read anyone as a freedom fighter except for good reasons and proved facts. We have also been shown the book published by Bilaspur District Freedom Fighters Committee mentioning'' the name of the Petitioner and indicating that he has suffered externment from 1946 to 48. These documents, in our opinion, are "corrorboratory documentary evidence" and should have received consideration. There is nothing in the reply of the Respondents to show that these documents are in anyway false or fabricated. Para-5 of the writ petition which mentions the facts of his being recognised as a freedom fighter by the State Government are not denied. Under the circumstances, it will require some explanation from respondens No. 1 and 2 as to why they are not able to accept the Petitioner as a freedom. fighter. They should have also explained as to why inspite of those corroboratory document, they do not wish to treat the Petitioner as a freedom fighter. Learned Counsel for the Respondents, however, submitted at the bar that though the aforesaid corroboratory documentary evidence would justify the inference that the Petitioner was a freedom fighter, it would not prove that he was externed for a period of six months or more. The learned Counsel for the Petitioner has, however, relied on the certificates given by Shri Daulat Ram Sankhian, another freedom fighter, to indicate that the Petitioner was externed from September 1946 till October 1948. To the same effect is the certificate of one Prem Lal Gupta, (Annexure PA) and of Kishori Lal Tadu (Annexure PA). If these certificates were to be believed they would sufficiently establish that the Petitioner was externed for more than 6 months. These certificates find mention in para-2 of the writ petition, which is denied by Respondents No. 1 and 2 only for want of knowledge. The Certificate of D.R. Sankhian, is not acepted as he was not a co-prisoner. As regards other certificates nothing whatsoever has been mentioned. It is true that Shri D.R. Sankhian, is not a co-prisoner but the Petitioner is not claiming the pension on the ground that he was imprisoned. His claim is based on externment for a period of more than six months. The certificate from co-prisoner may be required for proving- imprisonment but not for externment. Clearly, therefore, the objection of the Respondents in this behalf is without any justification. It is arbitrary and must be held as such. Under the circumstances, the only conclusion that can reasonably be reached in this case is that the Petitioner has proved that he was externed by the erstwhile Ruler of Bilaspsur from September 1946 to Octomber 1948. This would, therefore, entitle the Petitioner to the benefit of pension, under the Schemes aforesaid.

The learned Counsel for the Respondents, however, submitted on the basis of the decision of the Supreme Court in Mukund Lal Bhandari and others Vs. Union of India and others, that sufficiency of proof is the function of the Respondent Government and this Court should not look into that part of the matter. There is no doubt about the correctness of the said principle. This is hot a case where question of sufficiency of proof is involved. It is a case where the Respondents have refused to apply the provisions of the Scheme and are judging the Petitioner''s claim on a different and altogether arbitrary standard. This is, therefore, a case of arbitrary exercise of powers vested in the Respondents No. 1 and 2 under the Scheme. Indeed the judgment in Mukund Lal Bhandari''s case (supra) is the authority for the proposition that the Respondent State cannot arbitrary reject the claim of a freedom fighter. The Respondents should have read the entire paragraph-4 in order to understand the purpose behind the Scheme. The Scheme as has been brought out clearly by the Supreme Court was introduced with the genuine desire to assist and honour those who had given the best part of their life for the country. The Supreme Court has also observed that "in fact the Government, if it is possible for them to do so, should find out the freedom fighters or their dependents and approach ''them with the pension instead of requiring them to make applications for the same." We regret to note that this spirit is almost missing in the instant case. This Court would also like to draw the attention of the Respondents to the observations of the Supreme Court in para-5 of the said judgment, which reminds that the history, the true spirit and the object of the Scheme does not support any straight-jacket formula for granting benefit. The object of the Scheme is to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. It would have been better if the case of the Petitioner was also approached in the light of the aforesaid observations of the apex Court.

In this connection, we would also like to re-call the decision of this Court in Tej Singh Nidhark v. Union of India and Anr. ILR1984 (HP.) 593, wherein this Court has not accepted the requirement of minimum period of imprisonment as a valid excuse for refusing pension. To the same effect is the decision of Girdhari Lal v. Union of India, and Anr. ILR 1984 (H.P..) 597. Both these decisions express the anxiety of this Court to give the benefit of the pension to those who deserve it. These decisions also express disapproval of this Court to the technicalities to which the Respondent-Union of India appears to be fond of. Be that as it may, the facts aforesaid sufficiently justify the conclusion that the Petitioner is entitled to pension under the aforesaid Scheme.

The petition consequently succeeds and is allowed. The order of the Respondents No. 1 and 2 dated 6th March, 1982 rejecting the Petitioner''s application for pension is hereby quashed. The Respondents No. 1 and 2 are directed to grant pension to the Petitioner under the aforesaid Scheme from the date he has become entitled to the same under those Schemes. The Petitioner will also get costs of this writ petition. Counsel''s fee Rs. 500/-.

Petition allowed