Hon'ble Virendra Kumar Dixit,J.
1. The petitioner, who claims to be a freedom fighter, has approached this Court under Art. 226 of the Constitution of India against the impugned order dated 30.7.2008, by which the respondent Union of India has refused to extend the benefit of freedom fighter.
2. It is an irony that for the second time, the petitioner has been compelled to approach this Court under writ jurisdiction and that too, almost on the same ground which was the subject matter of scrutiny by this Court while deciding earlier writ petition No.964(M/B) of 2002.
3. The petitioner was born on 12.7.1929. In the year 1942, under Quit India Movement, he participated in the freedom struggle. According to the pleading on record, the petitioner joined the Quit India Movement and on 23.1.1943, he was arrested in connection with distributing the anti-government leaflets. He was detained in the lock-up and later on, released on 1.3.1943. Thereafter again, he continued with his crusade for independence and arrested in District Varanasi while distributing leaflets and remained under detention for approximately one month, i.e. from 18.2.1944 to 27.3.1944. Being active participant in the freedom struggle, he was compelled to leave his study from Class-IX and his name was struck down from the register of school.
4. It has been submitted by the petitioner's counsel that for several months, the petitioner was underground and participated in the freedom struggle suffering all sorts of persecution from the government machinery. It has also been submitted by the petitioner's counsel that it is not a question of benefit or money which may be made available to the petitioner under the Scheme but it is a question of recognition of the petitioner as freedom fighter who fought for the country during the independent struggle.
5. The petitioner has been provided the benefit of freedom fighter pension under the State Scheme. The State Government has awarded the pension under the freedom fighter scheme by order dated 20.9.1988, a copy of which has been filed as Annexure No.3 to the writ petition. However, the Central Government being not satisfied with the petitioner's credentials with regard to underground sufferings for the period of six months or more, by order dated 22.3.2002, declined to extend the benefit of pension under the Government of India Scheme.
6. The Central Government has considered the matter twice and on the first occasion, denied the claim of the petitioner on the ground that there was contradiction in the two certificates issued by Sri Ram Lakschan Tewari - one issued on 19.2.1983 and the other issued on 20.8.1989. Against the denial of pension under the Central Government Scheme, the petitioner preferred a writ petition No.960(M/B) of 2002 which was allowed by a Division Bench of this Court, of which one of us(Hon'ble Devi Prasad Singh, J) was a member, by judgment and order dated 17.4.2008. It was noted by the Division Bench of this Court while allowing the writ petition that the earlier claim of the petitioner was rejected, mainly on following grounds:
a) "There is contradiction in the two certificates issued by Sri Ram Lakschan Tewari as aforesaid;
b) Sri Ram Lakschan Tewari himself was in Jail during the period when he had given certificate of the petitioner being underground and, therefore, suspicion has been raised saying that when he was in Jail, how could he give certificate of absconder or being underground and also because out of the period which was shown as 'remaining underground', the petitioner was admittedly under detention for two months and 17 days and, therefore, the period over lapped;
c) In the certificate issued by Sri Ram Lakschan Tewari, he did not give his undertaking that in case the information given by him is found to be incorrect, then he would loose his pension under the Central Government Scheme.
d) The District Magistrate has not verified that the petitioner was in Jail during the period mentioned therein as the Jail record does not say so and lastly,
e) There is no evidence of underground suffering for the period of more than six months."
7. This Court had taken note of the fact that the rules/Scheme which permit payment of pension under the Central Government Scheme is enunciated in the letter issued to the Chief Secretary, Government of U.P. Dated 6.8.1980 by the Government of India, Ministry of Home Affairs. The scheme provides that it shall be applicable with effect from 1.8.1980. The Freedom Fighters Pension Scheme, 1972, in short, Scheme, prescribes the quantum of pension under different circumstances and relevant provision which is attracted in the present case is reproduced as under :
"(vii) In the case of claims of underground suffering/ internment/ externment where it has not been possible for applicants to produce evidence from official records as hitherto imposed, certificates from prominent freedom fighter who had themselves undergone imprisonment for more than 5 years will be accepted as adequate evidence."
8. The Division Bench(supra) noted that Shri Ram Lakschan Tewari was a freedom fighter who suffered imprisonment for more than five years and it is he who issued the certificate to the petitioner certifying his sufferings and participation in the freedom movement. While relying upon the certificate, issued by Ram Lakschan Tewari, the Division Bench observed as under :
"8............the certificate issued to the petitioner by a person who qualifies for issuing such certificate, shall be taken as adequate piece of evidence for the purpose of grant of pension. This means that unless there are very cogent and special reasons for disbelieving the certificate issued by such freedom fighter, prisoner, the same has to be given due weight and cannot be lightly brushed aside merely on suspicion of the authorities. Any other interpretation of the said provision would defeat the purpose of the pension scheme and would also deprive those freedom fighters who are otherwise entitled for pension but are handicapped in claiming the pension because they cannot produce the official record about underground suffering/internment or externment as the case may be."
9. It has been observed by the Division Bench of this court(supra) that the petitioner was an active participant in the freedom struggle which could not be disputed by the respondents. The fact that the petitioner was in police custody for the period from 23.1.1943 to 1.3.1943 in connection with distributing leaflets and thereafter again he was detained for the period of one month, i.e. from 18.2.1944 to 27.3.1944 has not been disputed by the respondent. During the course of hearing of earlier writ petition(supra), the petitioner had also filed a copy of the judgment delivered by Special Judge, Ballia in case No.14/43 under Section 436 I.P.C., P.S. Kotwali, King Emperor versus Pratap and others, in support of his claim that he went underground as he was involved in freedom struggle. The judgment observes that a plan was hatched consisting of fourteen persons including the petitioner and his brother Balram for burning the office of the District Magistrate. In this connection, three meetings took place. In the first and second meeting, these persons were present, namely, the petitioner and his brother but in the third meeting held on 5.1.1943, neither the petitioner nor his brother was present. On 6.1.1943, when the accused persons went to put the Office of the District Magistrate on fire, they found that a person came there smoking and, therefore, they did not burn the Office of the District Magistrate but shifted to Government School and burnt the same. A charge sheet was submitted against 9 persons who were accused in the case after investigation by the police. The trial was taken against four accused persons as four of them absconded. In the said trial, one Mukteshwar who had tendered pardon and became an approver, had given a statement verifying the presence of the petitioner in the aforesaid plan that the two meetings held for the said plan. Thus, it was noted that there is ample evidence on record which may indicate the petitioner's participation in the freedom struggle. The Division Bench(supra) observed as under :
"11. Under these circumstances, it is not unbelievable that a person or who was an active participant in the two meetings which took place for chalking out and carrying out a plan for burning of the District Magistrate's Office, would not be afraid of arrest by the police and will not be taken into custody by the police and would not hide himself during all the period, till the actual implementation of the hatched plan and thereafter also, to avoid his arrest. In these circumstances, if the petitioner went underground, it is very normal and there is no reason not to believe the story set up by the petitioner.
13. Admittedly, there was no official record to substantiate the plea of the petitioner that he suffered the agony of being underground suffering for more than 6 months. It was, therefore, an obligation upon the Central Government to consider the case of the petitioner in the light of its own scheme and not to act beyond the requirements under the scheme.
It is the specific case of the petitioner that he went underground. He had furnished the Judgment dated 26.3.1943 in the Case No.14/43 (Government. Vs. Pratap Etc. under Section 436 IPC P.S. Kotwali, passed by the Special Judge, Mahodya, Ballia only to show that his name was taken by the approver, whose statement was relied upon by the Judge in deciding the case and secondly, Sri Ram Lakschan Tewari who was in Jail for more than 5 years, had given the requisite certificate.
The certificate issued by Sri Ram Lakschan Tewari, was rejected on the ground that it does not contain the undertaking that if the information given by him is found to be incorrect, then Sri Ram Lakschan Tewari will loose his pension which has been given to him by the Central Government.
14. The rejection of the certificate of Sri Ram Lakschan Tewari, on the ground that it did not contain his undertaking for loosing his pension given by the Central Government, in case the information given by him regarding the petitioner was found to be incorrect, could not be substantiated by any provision of the scheme which required giving of such an undertaking. Since no such undertaking was required to be given under the scheme, the certificate issued by him could not have been rejected on that ground. Further, even in the case of Sri Kuber Prasad, the affidavit given by Sri Ram Lakschan Tewari, did not contain the said undertaking but the former was given the benefit of that certificate.
15. The only requirement for issuing certificate was that a person who had been in Jail for more than 5 years for freedom struggle, should certify about these facts namely, underground suffering/internment/ externment for more than 6 months, which certificate would be an adequate piece of evidence for accepting the claim of the applicant. Sri Ram Lakschan Tewari, admittedly, was getting his pension under the scheme of Central Government as well as that of State Government and was admittedly a prisoner who was detained in Jail for more than 5 years for freedom movement.
The certificate issued by the District Magistrate Ballia dated 12.1.1949 verifies the detention of the petitioner in the lock up from 23.1.1943 to 1.3.1943 and 18.2.1944 to 27.3.1944. The school leaving certificate shows that right from 5.2.1943, the petitioner remained continuous absent from the school. There appears to be no reason to discard these documents which were more than 20 years old.
16. We also take note of the fact that the State Government as well as the Central Government both, have not disputed the correctness of the certificate issued to the petitioner by Sri Ram Lakschan Tewari but the certificate has not been relied upon for the two reasons aforesaid namely, that the aforesaid undertaking was not given by him and that the two certificates issued by Sri Ram Lakschan Tewari, were having some contradictions.
On the basis of the documents submitted by the petitioner, the State Government has already awarded pension under the State scheme and the contradictions in the two certificates, were not not all relevant and in fact there were no contradictions in the certificates issued by Sri Ram Lakschan Tewari as one certificate related to Sri Kuber Prasad and the other related to the petitioner."
10. So far as the underground suffering is concerned, after considering the material on record, this Court proceeded to observe as under :
"18. So far as the underground suffering is concerned, it is a question which is though, factual but for which no hard and fast rule can be laid down to establish and prove that the person has suffered underground suffering and, therefore, the Central Government being conscious of the said fact, has given mechanism of getting a certificate from the freedom fighter prisoner who remained in Jail for more than 5 years. The official record would be hardly of any assistance to indicate that such a person has undergone sufferings for more than 6 months. If it be a case of absconsion i.e., where a person is accused in a criminal case, is absconding, as for that matter, the trial cannot not be proceeded with, then of course, that person would be declared and a proclaimed absconder. Such a fact shall be mentioned in the trial and unless he surrenders or is arrested, the trial cannot proceed.
19. The argument of the learned counsel for the petitioner that underground suffering cannot be equated with absconsion, has force and, this should be considered by the Central Government. The underground suffering has to be gathered from the plain plea of the freedom fighter and his conduct and role in the freedom movement keeping in mind that a person may have been involved actively in freedom movement, and his activities were such, that police must be in his search, and that he had to remain underground for avoiding arrest or any other type of torture by the police and the administration. Not necessarily in all such cases, the freedom fighters were arrested after lodging of an FIR, or framing of a chargesheet. None the less they were eye sore for the administration and had to hide themselves. Of course, if it is certified by a person authorised to issue such a certificate that the person has to remain underground for his activities which he suffered for more than six months, then such a certificate cannot be required. Other relevant material may also be considered for the purpose.
Merely because the certificate was issued by Sri Ram Lakschan Tewari when he was in Jail and this covered the period of detention of the petitioner when he was detained in lock-up for more than 2 months or so, can also not be a ground for rejecting his claim nor such declaration given by the freedom fighter could be treated as contradiction so as to dislodge the certificate issued by him."
11. Subject to the aforesaid observation and finding, the writ petition was allowed by judgment and order dated 17.4.2008 with the following operative order :
"20.Since both the impugned orders dated 22.3.2002 and 15.7.2002 contained in Annexure No.9 and 10 to the writ petition, passed by the Central Government, do not take into account the relevant considerations which ought to have been taken care of and the orders pave been passed on such reasons which are not sustainable, we quash both these orders. We further direct that the Central Government shall re-consider the claim of the petitioner for freedom fighter pension under the scheme in the light of observations made in this judgment. It shall be done within a maximum period of two months from the date of receipt of a certified copy of this order."
12. While assailing the impugned orders, learned counsel for the petitioners submits that almost on the same ground, again, the petitioner's claim has been rejected by the respondents.
13. From perusal of the impugned order, it appears that the petitioner's claim with regard to benefit of the freedom fighter has been rejected, mainly on four grounds as given in para 5 of the impugned order.
"5. After examination of the case, it is found that you are not eligible for the grant of SSS Pension for the following reasons :
I)The certifier Shri Ram Lakschan Tewari belongs to District Ballia and you are belong to District Lucknow. Hence PKC is not acceptable.
II)The State Government has not recommended your case for grant of Central pension.
III)Your jail suffering is from 23.1.1943 to 01.03.1943 and 18.2.1944 to 27.3.1944, which is less than six months.
IV)As per policy PKC should be accompanied by NARC from the concerned State Government in your case there is no NARC from Government of U.P."
14.While assailing the impugned order, passed on the aforesaid grounds, attention of this Court has been invited to condition No.7 of the Scheme which shows that the certificate given by the freedom fighter who remained in jail for five years shall be adequate evidence with regard to underground sufferings. Nothing has been brought on record to establish that the certificate given by Shri Ram Lakschan Tewari with regard to petitioner's involvement in the freedom movement is not correct. Minor contradictions shall not prevail over the letter and spirit of the certificate granted by Shri Ram Lakschan Tewari, that too after scrutiny by this Court on judicial side while deciding the earlier case (supra). Once this Court has recorded a finding that the certificate given by Ram Lakschan Tewari is well within the jurisdiction conferred by letter dated 6.8.1980, coupled with other facts and circumstances of the case, the respondents could not have rejected the petitioner's claim on the same ground again and that too on trivial ground that Ram Lakschan Tewari belongs to Ballia and the petitioner belongs to district Lucknow. No government Order, circular, rules or regulations have been placed before this Court to indicate that the certificate is to be issued by a person who belongs to the same district. The only condition borne out from the record is that the certificate should be issued by a person who underwent imprisonment for more than five years and that condition is fulfilled by Ram Lakschan Tewari.
15.The other ground is that the State Government has not recommended the petitioner's case. The State Government has itself forwarded the petitioner's representation vide its letter dated 18.7.1992(Annexure-9) to the Government of India, Ministry of Home Affairs and also recognised the petitioner as freedom fighter providing all the benefits under its scheme. Once the State Government has itself recognised the petitioner extended the benefit of freedom fighter under its own order and rules and forwarded the petitioner's representation, then the second ground making a basis of rejection of the petitioner's claim seems to be mis-conceived and not justified.
16.So far as the suffering in jail for the period less then six months is concerned, this aspect of the matter has already been dealt with in earlier judgment of this Court and since it has not been assailed in higher forum or Hon'ble Supreme Court, it attains finality. A plain reading of the circulars, letters and the material on record shows that it is not necessary to be in jail for six or more months. The only condition required is that the freedom fighter must have underground suffering/internment/externment during the course of freedom struggle and it may be proved by other evidence like certificate given by freedom fighter who remained in jail for more than five years. This aspect of the matter has also been dealt with in the earlier judgment of this Court. There appears to be repetition of the same ground which has already been dealt with and turned down by this Court.
17.The fourth ground also seems to be mis-conceived as the petitioner fulfils all the requirements necessary for sanction of benefit under the Central Scheme.
18.We fail to appreciate as to for what reason, the Central Government has rejected the petitioner's claim, broadly on the same ground which has already been dealt with by this Court while deciding the controversy by its earlier judgment. Such action on the part of the Central Government amounts to blatant abuse of power, that too against a person who fought for independence of the country. The provisions contained in the circular, Government Order are beneficial provisions and they cannot be interpreted within the narrow compass. It is settled law that the beneficial provisions should be interpreted broadly and not in a narrow sense. Once, the petitioner fulfils broadly all the requirements as discussed in the earlier judgment, then he is entitled for the benefit of the freedom fighter's pension as decided by earlier judgment. It appears that the authority who has passed the impugned order has either not applied his mind or acted for unforeseen reasons in such a manner which is not expected in a democratic polity governed by rule of law.
19.It has been brought to the notice of this Court that on identical ground, the Government of India has extended the benefit of pension as freedom fighter to one Shri Kuber Prasad to whom also Shri Lakschan Tewari had issued similar certificate. We fail to understand that why the certificate issued by Shri Lakschan Tewari has been accepted by the Government of India for one person and for other, the same has been denied and that too under the teeth of judgment of this Court.
20.Though it is a fit case for imposition of exemplary cost and also to proceed against the person who has passed the impugned order but we hope that good sense shall prevail and justice shall be done to the petitioner who fought for the country and he shall not be compelled to come this Court again for the same relief.
21.Subject to the aforesaid observation, the writ petition deserves to be and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 30.7.2008(Annexure-1) with all consequential benefits. A writ of mandamus is issued commanding the respondents to re-consider the petitioner's case for grant of pension under the Scheme for freedom fighters keeping in view the observations made hereinabove.
Let a decision be taken expeditiously and preferably within a period of two months from the date of receipt of a certified copy of this judgment.
Order Date :- 17.1.2011 kkb/