THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.19104 of 2010 Between:
Sri Konda Mallaiah PETITIONER AND
1. Union of India, rep. by the Deputy Secretary to Government, Ministry of Home Affairs, Freedom Fighters Division, Lok Nayak Bhavan, Khan Market, New Delhi, and another.
RESPONDENTS ORDER:
This writ petition, filed under Article 226 of the Constitution of India, challenges the order bearing No.52/CC/499/2000-FF(HC), dated 6.09.2006 passed by the 1st respondent, rejecting the claim of the petitioner for grant of freedom fighters pension.
2. Heard Sri Ravi Kumar Vadlakonda, learned counsel for the petitioner, Sri P.Vishnuvardhan Reddy, learned Assistant Solicitor General for the 1st respondent-Union of India and learned Government Pleader for Revenue for the 2nd respondent.
3. According to the petitioner, he participated in Anti Nizam Movement and he submitted an application before the 1st respondent along with the relevant documents for grant of freedom fighters pension under Swatantra Sainik Samman Pension Scheme, 1980 (for short ‘the Scheme’). Subsequently, on the directions of the 2nd respondent, the Revenue Divisional Officer, Karimnagar, conducted enquiry on the aspect of participation of the petitioner in the freedom movement and submitted a detailed report to the District Collector on 5.04.1993. The District Collector vide letter No.13134/93 dated 16.06.1993 submitted a report to the 2nd respondent State Government, recommending the petitioner’s case. The 2nd respondent- State Government, after considering the material available on record and the report of the District Collector, recommended petitioner’s case vide letter No.53355/FF,II/A2/93-1, dated 8.10.1993 to the 1st respondent for grant of freedom fighters pension. Complaining inaction on the part of the 1st respondent, earlier, the petitioner filed W.P.No.21616 of 2000 and vide order dated 8.08.2006 this Court passed the following interim order.
“Be that as it may, in the facts and circumstances of the case, I feel that ends of justice would be met by directing the concerned authority of the Government of India in the Ministry of Home Affairs (Freedom Fighters Pension) to pass appropriate order on the petitioner’s claim for grant of pension under 1980 scheme. The needful be done with in a period of one month from today.”
4. In pursuance of the said order, the 1st respondent-Union o f India passed orders bearing No.52/CC/499/2000-FF(HC), dated 6.09.2006, rejecting the claim of the petitioner for grant of freedom fighters pension by assigning the following reasons.
“(i) You have not furnished acceptable record-based primary evidence in support of your claimed sufferings (as indicated in para 4 above).
(ii) You have not furnished a valid non-availability of Records Certificate (NARC) from the State Government (i.e., the competent authority) containing all ingredients prescribed therefor (as indicated in para-4, above).
(iii) In the absence of a valid NARC, secondary evidence, i.e., Personal Knowledge Certificate (PKC), cannot be considered. The PKC submitted by you from Shri K.V. Damodar Rao has, however, been scrutinised. The same is not acceptable as the certifier has not furnished any record/evidence of his own two years’ jail suffering (i.e., he has furnished no record/evidence to establish that he is an eligible certifier).
(iv) The camp-in-charge certificates submitted by you from Shri B. Ramganayakulu and Sri K.V. Narsing Rao apropos your participation in boarder camps at Venkatapur and Chanda, respectively, have also been scrutinized. However, the same are not acceptable, as they are relevant only in case recommended by the erstwhile Hyderabad Special Screening Committee (HSSC). Since there is no document on record to show that your claim was scrutinized and duly recommended by the HSSC, the camp-in-charge certificates are not acceptable/relevant.
(v) In your application dated 10.04.1984 you have stated that you were in Venkatpur camp; this has also been (supposedly) certified in a camp-in-charge certificate from Shri B. Ranganayakulu. In another camp-in-charge certificate from Shri K.V. Narsing Rao, received with the State Government’s letter No.53355/FF.II/A2/93-1 dated 8.10.1993, it is (supposedly) certified that you were in Chanda camp in the same period. Thus there is self-evident contradiction in the claimed boarder camp, which creates further doubts regarding the bonafide and genuineness of your claim.”
5. Calling in question, the validity of the said order of rejection, the present writ petition has been filed.
6. Responding to the Rule Nisi issued by this Court, a counter affidavit is filed on behalf of the 1st respondent, denying the averments in the affidavit filed in support of the writ petition and in the direction of justifying the impugned action.
7. In the present writ petition, it is the contention of the learned counsel for the petitioner that the impugned action, which culminated in order of rejection dated 06.09.2006, is highly arbitrary, illegal, unreasonable and opposed to the very object of the Scheme framed by the Union of India.
8. Per contra, it is contended by the learned Assistant Solicitor General, appearing for the Union of India that the 1st respondent herein passed the impugned order strictly in conformity with the Clauses in the Scheme and there is neither illegality nor irregularity in rejecting the claim of the petitioner.
9. For the purpose of dealing with the controversy in the present writ petition, it may be appropriate to refer to the relevant clauses in the Swatantra Sainik Samman Pension Scheme, 1980 and Clauses 2 to 2.3, which are relevant for the present case, read as under.
“ 2 . Who is eligible for Samman Pension:- All the persons who participated in the freedom movement in some way or the other are not eligible for Samman Pension. Only following category of freedom fighters are eligible for the Samman Pension under the Scheme subject to furnishing of the specified evidences.
2.1 Eligible dependents of martyrs:- A martyr is a person who died or who was killed in action or in detention or was awarded capital punishment due to participation in the freedom struggle of India. Relevant documents from official records and newspapers of the relevant time are considered as evidences in such cases.
2.2 Imprisonment:- 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 evidences:-
(a) Imprisonment/detention certificate 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) In case records of the relevant period are not available, the secondary evidences in the form of 2 co- prisoner certificates (CPC) from freedom fighters who have proven jail suffering 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 were not available. In case, the certifier happens to be a sitting or Ex.M.P./M.L.A., only one certificate in place of the two is required.
2.3 Underground:- A person who on account of his participation in freedom struggle remained underground for more than six months provided he was;
(A) a proclaimed offender; or
(B) one on whom an award for arrest was announced; or
(C) one for whose detention, order was issued but not served.
Explanation:
Voluntary underground suffering or self-exile suffering for party work under command of the party leaders, are not covered as eligible sufferings for pension under the Central Scheme.
The claim of underground suffering is considered subject to furnishing of the following evidence:-
(a) Documentary evidence by way of Court’s/Govt.’s
(b) Orders proclaiming the applicant as a absconder, announcing an award on his head or for his arrest or ordering his detention.
(c) In case records of the relevant period are not available secondary evidence in the form of a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be from the same administrative unit could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed sufferings were not available.
10. The Government of India, with a laudable and sacred object of safeguarding the interests of freedom fighters and their dependents from the onslaught of the financial constraints, which they are exposed to because of the sacrifices made by them during the freedom struggle for the purpose of liberating the country from the shackles of the colonial and feudal forces, introduced Swatantra Sainik Samman Pension Scheme, 1980. The freedom fighters, who sacrificed their lives, wealth, health and young age, in the considered opinion of this Court, are entitled for the said benefit as a matter of right and the same is neither a gratis nor a charity for them and on the other hand, the same is the recognition of their sacrifices. Therefore, the authorities, functioning for enforcement of the said Scheme, are required to address the claims under the Scheme expeditiously and by adopting pragmatic approach keeping in view the object of the scheme.
11. In the light of the above, now it is required to be examined as to whether the 1st respondent is justified in turning down the request of the petitioner for grant of freedom fighters pension under such a holy Scheme. As per the Clauses in the Scheme, when the primary evidence is made available by the claimant, the question of production of secondary evidence would not arise by any stretch of imagination.
12. In the instant case, the petitioner herein along with the application enclosed the order of detention issued by the Inspector General of Police, Sarkar-e-Aali, Hyderabad, Deccan, addressed to the Secretary of Courts, Police and General Administration, Nizam’s Government, Hyderabad Deccan. As per the Scheme, the same is primary evidence for consideration of claim. Therefore, the 1st respondent is not justified in saying that the petitioner did not furnish any acceptable record based on the primary evidence nor the 1st respondent is justified in insisting upon the secondary evidence which is unnecessary and unwarranted in the facts and circumstances of the present case. Therefore, the objections shown in the impugned order at Sl.Nos. (i), (ii) & (iii), are highly unreasonable and untenable.
13. In the instant case, after thoroughly undertaking enquiry with regard to the entitlement of the petitioner, the State Government recommended the case of the petitioner for grant of freedom fighters pension vide letters No.53355/FF.II/A2/93-1, dated 8.10.1993 and No.1676/FF.II/A1/94, dated 9.03.1995. The enquiry undertaken by the revenue authorities at the ground level and the reports submitted thereon by the Revenue Divisional Officer and the District Collector would undoubtedly demonstrate that only after meticulously and thoroughly examining all the issues pertaining to the claim, the 2nd respondent recommended the case of the petitioner for grant of pension under the Scheme.
14. At this juncture, it would be appropriate to refer to the
[1]
judgments in the case of Gudial Singh v. Union of India ;
[2]
Kamalabai Sinkar v. State of Maharastra ; and Bommakanti Venkavva v. Union of India[3] wherein the Hon’ble Apex Court and this Court have categorically held that the standard of proof applicable while assessing participation in the freedom movement shall be on the basis of preponderance of probabilities, but not on the touchstone of the test of probability beyond reasonable doubt.
15. Therefore, the authorities discharging the functions under the said Scheme are required to keep the very object behind the Scheme in their mind while dealing with the claims under the scheme. The facts and circumstances of this case would drive this Court towards an unhesitating conclusion that the 1st respondent is not justified in rejecting the claim of the petitioner for grant of freedom fighters pension.
16. For the aforesaid reasons, the writ petition is allowed and the order bearing No.52/CC/499/2000-FF(HC), dated 6.09.2006 is set aside and the 1st respondent herein is directed to sanction freedom fighters pension to the petitioner under Swatantra Sainik Samman Pension Scheme, 1980 from the date of application of the petitioner within a period of three months from the date of receipt of a copy of this order. The arrears, from the date of application till the date of sanction, shall be paid to the petitioner within a period of six months from today. No order as to costs. As a sequel, miscellaneous petitions, if any, shall stand closed.
JUSTICE A.V. SESHA SAI.
27th June, 2014 Js.
[1] (2001) 8 SCC 8
[2] (2012) 11 SCC 754
[3] 2013 (5) ALD 173