P.P. Chockalinga Nadar vs The Government of India, and others

Bakthavatsalam,, J.

The petitioner has come forward with this writ petition for the issuance of a writ of certiorarified mandamus to call for the records of the case

from the file of the first respondent dated 6-3-1974 and made in letter No.29/1/ Genl/73 FF.VIII and quash the same as illegal and direct the

respondents to pay pension under the Freedom Fighters Pension Scheme, 1972 from December, 1974 till the lifetime of the petitioner.

In the affidavit filed in support of the writ petition the petitioner has stated that he had joined the freedom struggle and he participated in the

''Quit India Movement'' in 1942. He was convicted and sentenced to undergo rigorous imprisonment for a period of six months and was confined

in Allipuram Camp Jail, Bellary. The first respondent evolved a scheme known as ""Freedom Fighters"" Pension Scheme, 1972, which provides for

the grant of pension to living freedom fighters, their families if they are no more alive and to family of martyrs. The minimum pension payable to the

freedom fighters is Rs. 200/- per month which has been raised from 1-8-1980 to Rs. 300/- per month. The petitioner has alleged that

Lakshmipathi Raju, Ex.-M.L.A. Palani and N. Ramkrishnan, former member of the Rajya Sabha were with him in Adipuram jail as co-prisoner

during 1942-43. P. Kakkan, former President of Tamil Nadu Congress Committee has also issued a certificate evidencing the imprisonment of the

petitioner at Adipuram Jail. It is stated that the petitioner was sanctioned pension under the scheme in November, 1973 with effect from 15-8-

1972 and he was in receipt of the same till December, 1974. It was suspended by the first respondent, pending farther orders. Subsequently, the

first respondent cancelled the order sanctioning pension. The first respondent also ordered recovery of the pension paid to the petitioner. Before

suspending the pension amount the first respondent did not issue any show cause notice to find out the position but in an arbitrary manner

unilaterally cancelled the pension. The petitioner has been repeatedly requesting the first respondent to consider his case. The petitioner has also

produced several co-prisoners certificates before the 1st respondent drawing his attention about his joining in the freedom struggle and further

undergone rigorous imprisonment of more than six months. The petitioner refers to some orders in writ petitions particularly to W.P. No. 3017 of

1983. In similar circumstances, Sathyadev J., allowed the writ petition and quashed the cancellation order. It is stated the first respondent erred in

law in passing the order cancelling the provisional pension granted to the petitioner without assigning any valid reason. The petitioner states he was

not afforded any opportunity to explain his position and as such the impugned order is liable to be quashed. It is also alleged, the impugned order is

violative of Art. 14 of the Constitution inasmuch as it is passed arbitrarily and persons who are co-prisoners have been granted pension from

December, 1974 whereas the petitioner was denied of the pension without giving any reason therefore. Though the petitioner has produced the

extract of ""Who''s Who"" of Freedom Fighter published by the Government of Tamil Nadu and also certificates issued by the co-prisoners, the first

respondent has erroneously cancelled the pension without any valid reason. It is also stated that the petitioner is not in receipt of pension from

December, 1974.

Notice of motion was ordered by me on 8-8-1989. The first respondent has filed a counter affidavit wherein it is stated that the petitioner

applied for freedom fighters'' pension in August, 1972 on the basis of jail sufferings for six months in Allipura (Bellary) Jail. It is stated that he was

sanctioned a pension of Rs. 200/- per month from 15-8-1972 on the basis of secondary evidence produced by him pending State Government''s

verification report. In December, 1973, the Government of Tamil Nadu forwarded their verification report stating that the petitioner had not

produced any satisfactory evidence to prove his claim of having undergone imprisonment for six months and that the Superintendent, Central Jail,

Bellary had reported that his name did not figure in the registers of 1942 of the Allipura Camp Jail. The State Government, therefore, did not

recommend the case of the petitioner for the grant of pension. In view of the report of the State Government, payment of pension was suspended

in March, 1974 which was subsequently cancelled in December, 1976. It is stated that the evidence for the claim of freedom fighters'' pension is

the suffering in the jail and in this behalf no such evidence was produced by the petitioner. On the other hand, the Superintendent, Central Prison,

Bellary, stated that the name of the petitioner did not find place in the jail records. Though initially, provisional pension was granted on the collateral

evidence of certificates produced by the petitioner, the same was suspended and cancelled finally in view of the report of the State Government.

No reliance could be placed on the co-prisoners'' certificates and personal knowledge certificates produced by the petitioner. Co-prisoner''s

certificate can be taken into consideration only when the evidence from official records are not available due to non-availability of the said records

of jail. It is also admitted in the counter in paragraph 7 that no show cause notice was given to the petitioner before the order of cancellation of the

provisional pension originally granted to him.

Mr. Arivudainambi, learned Government advocate also support the stand taken by the first respondent. Mr. Narasimhan, Senior Central

Government standing counsel reiterates the contentions raised in the counter affidavit and also points out that the second respondent in November,

1982 has forwarded the application of the petitioner for the grant of Swatantrata Sainik Samman Pension. The learned counsel for the petitioner

contends that as no notice was issued to the petitioner before the order of cancellation of pension was passed, the impugned order dated 6-3-

1974 has to be set aside.

Considering the arguments of the learned counsel for the petitioner and the respondents, there is no need to refer to any other fact except

paragraph 7 of the counter affidavit filed by the first respondent. It is stated in paragraph 7 of the counter affidavit thus :

It is a fact that no show cause notice was given to the petitioner before the order of cancellation of the provisional pension originally granted to

him.

Further as rightly pointed out by the learned counsel for the petitioner, after the cancellation of pension in 1974, the State Government in 1982

recommended the pension to the petitioner relying upon the co-prisoner''s certificate. The subsequent recommendation of the State Government

was made in 1982 and the order impugned has been passed without any notice to the petitioner. Hence, it is violative of the principle of natural

justice. Therefore, the impugned order is liable to be set aside.

The writ petition is allowed. The first respondent is directed to give an opportunity to the petitioner before issuing any order cancelling the

pension. The first respondent is further directed to take note of the subsequent recommendation made by the State Government in November,

1982 while considering the issue of grant of pension to the petitioner. The first respondent is directed to pass final orders after giving opportunity to

the petitioner within three months from today. No costs.

Petition allowed.