Shri Kishan Agrawal vs State and Another

Ajay Rastogi, J.—At request, matter has been finally heard and is being disposed of at admission stage.

Instant petition, has been filed by a senior citizen, claiming himself as a freedom fighter seeking mandamus against respondents to grant him pension under Rajasthan Freedom Fighters Aid (Swantantrata Senani Samman Pension) Rules, 1959 ("Pension Rules, 1959") from the date of application (05/03/97) along with interest on arrears.

As alleged in the petition, petitioner claiming himself as a freedom fighter and presently residing in Ajmer alongwith his wife Smt. Chanda Bai, being dependent upon him, applied for grant of pension under Rules, 1959, on 05/03/97 alongwith supporting certificates of his participation in National Independence Movement besides certificates of his two cofellow freedom fighters (Pannalal Maheshwari & Jyoti Swarup Vyas) who are presently getting pension under Rules, 1959. As alleged, petitioner participated in National Movement of Quit India launched by Late Mahatma Gandhi, Father of Nation in August, 1942 where he was arrested and punished at Ajmer & Neemuch (MP); and that apart, also participated in other activities of National movements under leadership of Rajputana terrorist renowned Shri Jwala Prasad Sharma, during which many a times, he was subjected to arrest, punishment, lathi charge and house arrest. As alleged, his contribution to National Movements was duly appreciated by co-participant/freedom fighters and that apart, he was sentenced to imprisonment in Central Jail, Ajmer with coprisoner Shri Panna Lal Maheshweari and even at the age of 15 years, he was detained under Defence of India Rules in Central Jail Ajmer and was subjected to torture and punishment; inasmuch as for several years, he had spent his life underground in area of Nag Pahar & Panchkund (Pushkar) as he was apprehended by British Police for his participation in Independence movement; and his participation in National movements was recognised/acknowledged by District Congress Committee vide certificate dt.09/02/06 (Ann.3) and others vide certificates dt.08/04/06 (Ann.4), 23/04/07 (Ann.5).

Petitioner was informed by respondents vide letter dt.27/04/06 (Ann.7) that no case for grant of pension to him is pending with department; and for eligibility of pension under Rules, 1959, application must be accompanied with certificate from jail authority about sufferings of tortures for ten years in Independence National movement after attaining age of 12 years.

Petitioner also applied for certificates from Jail authority vide application dt.13/04/07 (Ann.8), on which Central Jail, Ajmer authority put a note that the record since relates back to 65 years old, was not traceable despite efforts. After legal notice being served, petitioner has approached this Court by way of instant petition.

Counsel for petitioner submits that there is no document available with jail authority in the form of primary evidence to show that petitioner suffered imprisonment for the cause of country in freedoms/Independence movement, but secondary evidence can be taken note of certificates of his co-prisoners/participants as freedom fighters who are recipients of pension under Rules, 1959 vide their pension payment orders No. 1811(R) dt.15/06/88 issued in pursuance of order dt.14/08/07 of this Court in Pannalal Maheshwari v. Union of India (CWP-4993/06) and that apart, application of petitioner was accompanied by certificate (Ann.11) issued by coprisoner Vaidya Jyoti Swarup Vyas who too participated in National Movement during 1940-42 and is getting pension from State of Rajasthan as well as Central Government which was allowed in pursuance of order dt.06/05/998 (Ann.12) of this Court in CWP-2237/96 (Jyoti Swrup Vyas v. Union of India). Counsel submits that aforesaid certificates can be considered to be secondary evidence being sufficient material for purposes of grant of pension to petitioner under Rules, 1959.

Respondents in their reply inter-alia averred that application of petitioner in fact was rejected in the year 1997, itself for want of necessary certificates as required under Rules, 1959 and despite letter dt.27/04/06 (Ann.7), petitioner has failed to submit valid certificates and there is no such material by which it could be inferred that he had actually and really participated in National Freedoms Movement - in absence whereof, he cannot be considered for grant of pension under Rules 1959.

I have considered contentions of Counsel for the parties and with their assistance, examined material on record. Scheme under Rules, 1959 was introduced by State Government vide notification dt.18/04/1959 for grant of Freedom Fighter Pension with effect from the date of application; and the object behind it was that persons who participated in National Freedoms Movement and sacrificed in political activities during freedom struggle were to be honoured and whenever necessary, to mitigate their sufferings, when they had given up all for the country in hours of its need, which they considered it as an affront to the sense of patriotism with which they plunged into Freedom struggle.

Under definition Under Rule 2 of Rules,1959, it defines participants of political movements at the time of freedom struggle and all participants of freedom movement on being subjected to tortures mentally or otherwise, should be considered as freedom fighter for pension purpose under Rules, 1959. How much pension can be provided to such freedom fighter can be considered Under Rule 4 of Rules, 1959 and at the same time, those who are dependents of such freedom fighter can also be considered Under Rule 5 of Rules, 1959 subject to condition that those freedom fighters who died in circumstances provided under Clause (a) of Rule 3 or to dependents of a person who mainly devoted his time in a political movement continuously for a period of not less than ten years after attaining the age of majority and had been in jail in connection with such movements. Under Rule 6 of Rules, 1959, such persons who have submitted application which remained pending upto 15th July, 1990, could be considered for pension w.e.f. 01/01/1986 but on the applications received after 15th July, 1990, they would be entitled for pension from the date of its sanction. Procedure has been provided Under Rule 14 of Rules, 1959 and according to Rule 14(2), application submitted after 17/07/91, ordinarily could not be considered however, State Government can be considered such applications only after assigning reasons.

Apart from Scheme for pension introduced by State Government under Rules, 1959, Central Government has also introduced Scheme as Freedom Fighter''s Honour Pension Rules, 1980 for such imprisonment sufferings of those who suffered minimum imprisonment of six months, for whom they may submit primary evidence from jail authority, district Magistrate or State Govt, in absence whereof, secondary evidence can also be taken note of, which should be in the form of two certificates from co-prisoner/freedom fighters who have proven jail sufferings of minimum one year and who were with the applicant in the jail provided State Government after due verification of the claim and its genuineness, if documentary evidence from official record in support of claimed sufferings are not available.

It is relevant to mention that there is no primary evidence available in instant case which can support case of petitioner about certificates from jail authority or district magistrate which may show about his period of imprisonment sufferings and the reason for which he was arrested or released - in support whereof, petitioner submitted application (Ann.8) to the Jail authority Ajmer who upon efforts made for tracing his record, having felt inability, has put a note on his application that his record being 65 years old was not traceable and available. But at the same time, petitioner placed on record secondary evidence in the form of certificates from his co-prisoners (Pannalal Maheshwari & Vaid Jyoti Swrup Vyas) who on their being freedom fighter were considered for grant of pension and are presently getting pension by State Government vide PPO No. 1811(R) dt.15/06/98 as averred in rejoinder to the reply. Certificates of his co-prisoners in National Independence movement were also filed alongwith application of petitioner in the year 1997 in the form of secondary evidence (Ann.11) - as per which petitioner also actively participated along with his co-prisoners freedom fighters Pannalal Maheshwari & Vaid Jyoti Swrup Vyas in Quit India movement launched in the year 1940-42 and during British Rule, several times he was imprisoned so also physically tortured and remained in jail alongwith other freedom fighters.

However, under Scheme of Rules, 1959, those who are freedom fighters covered Under Rule 2(iii) and so also their dependents can be considered for pension, if those have participated in political movements and were tortured at the time of freedom struggle by British Government. No other provisions have been brought to the notice of this Court which make petitioners in-eligible to get pension under Rules, 1959.

Indisputably, petitioner was called upon to submit relevant certificates from jail authority about imprisonment sufferings during his freedom struggle which were not available as is evident from Note endorsed by jail authority, Ajmer on application (Ann.8). However, primary evidence is not available, certainly secondary evidence can be taken note as is available for consideration under Scheme, 1980 as introduced by Government of India for grant of pension for imprisonment sufferings during freedom struggle, as considered by this Court in Pannalal Maheshwari v. Union of India 2007(6) WLC 436 in para 8 which runs ad infra:

Imprisonment suffering:- A person who had suffered minimum imprisonment of six months (3 months in case of women SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidence:

(a) Primary evidence : Imprisonment/ detention from the concerned jail authority, District Magistrate or the State Government indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release;

(b) Secondary evidence : In case record of the relevant period are not available, the secondary evidence in the form of 2 co-Prisoner''s Certificates (CPCs) from freedom fighters who have proven jail sufferings of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness certifies that documentary evidence from the official records in support of the claimed sufferings are not available. In case the certifier happens to be a sitting or ex. MP or ex. MLA, only one certificate in place of two is required.

Where records of the relevant period are not available a Non- Availability of Record Certificate (NARC) from the concerned authority is a pre-requisite for secondary evidence. The Non- Availability of Records Certificate (NARC) should not be general or vague, but should confirm to the instructions issued by the Government of India, Ministry of Home Affairs. The instructions, inter-alia, require the State Government to issue an NARC only after due verification from all sources. The NARC is treated valid only when it is furnished by the State Govt. in the following manner:

All concerned authorities of the State Govt. who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available.

It is clear from provisions (supra) that if there is no primary evidence available, secondary evidence could be taken note of for grant of pension under Scheme, 1980 to such applicants who are freedom fighters and the applicant has to furnish certificates of his sufferings as secondary evidence.

However, there is no such corresponding provisions under Rules, 1959 that if primary evidence is not available, in what circumstances, claim can be considered for grant of pension under Rules, 1959. This Court can certainly take note of the fact that if primary evidence is not available whatever secondary evidence available can be taken note of, if meets out requirement.

In the instant case, petitioner has submitted certificates of his two co-prisoners freedom fighters (Pannalal Maheshwari & Vaid Jyoti Swrup Vyas) as discussed supra, which can certainly be considered as secondary evidence to meet out requirement for pension under Rules, 1959.

It is true that petitioner is not in possession of proof of record from jail authority but his sufferings during freedom struggle is duly supported by two fellow co-prisoners in National Political Agitation & Quit India movement who also participated in National Movements and as freedom fighters are recipients of pensions under Rules, 1959 and 1980, which cannot be ignored, whose participants as freedom fighters have been recognised by Government while granting pension under Rules, 1959 & 1980. That apart, certificates of two co-prisoners can be considered as secondary evidence as per Pension Rules, 1980.

Claim of petitioner was denied on the premise that he has no certificates regarding imprisonment sufferings and so also for the reason that after attaining age of 12 years, he had participated for ten years in freedom struggle. In fact, it relates to Rule 5 which applied for dependent of freedom fighter and not upon him. As regards imprisonment sufferings, secondary evidence has been placed by petitioner on record in the form of certificates of his coprisoners and such certificate (Ann.11) was also placed by petitioner alongwith his application on 15/03/97 which shows that he was imprisoned several times and participant alongwith Pannalal Maheshwari & Jyoti Swrup Vyas who were coprisoners with petitioner during National Quit India/Independence/freedom struggle movements and besides it, petitioner participated in several National movements political activities in the leadership of Jwala Prasad who was renown political freedom fighter; and was subject to arrest, house-arrest several times; inasmuch as he had to remain underground during his early life time in Nag Pahar & Panchkund (Pushkar) as he was apprehended by British Police for his participation in Independence movement; which were duly recognised/acknowledged by District Congress Committee vide certificate dt.09/02/06 (Ann.3) and others vide certificates dt.08/04/06 (Ann.4), 23/04/07 (Ann.5).

As regards standard of proof, the object of Scheme of Rules, 1959 is to reward living freedom fighters and their families and families of martyrs who gave their all for the Nation in the hours of its need country - in this view whereof, standard of proof required is not as is required in criminal cases on touch stone of test of beyond reasonable doubt. As to the standard of proof, Apex Court in Gurdial Singh Vs. Union of India and Others, , observed ad infra:

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 scheme have 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 touch-stone 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.

In view whereof, in order to honour freedom fighter and acknowledge valuable sacrifices made by petitioner, statutory provisions ought to be construed liberally so as to advance substantial justice to freedom fighters and technicalities should not be allowed to obstruct path of justice. Certificates by two fellow freedom fighters of repute who are recipients of pension under Rules, 1959, which show his sufferings during freedom struggle cannot be thrown out lightly and claim of petitioner cannot be rejected only because the State Government is not in a possession of relevant record to verify or disprove the same. Case of petitioner under Rules, 1959 is required to be determined on the basis of probabilities and not on test of beyond reasonable doubt.

Consequently, writ petition succeeds and is hereby allowed. Petitioner is considered to be eligible and held entitled for pension under Rules, 1959; accordingly respondents are directed to grant freedom fighter pension under Rules, 1959 in favour of petitioner from the date of his application (05/03/97) and pay its arrears alongwith interest @6% per annum within a period of three months from the receipt of certified copy of this order and shall continue to pay such pension during his lifetime. No costs.