Dismissed

Under Secretary to Govt v. Noorjahan

Madras HC12 Mar 2014WA/2007/2013

Case brief

AI extract

What is this about?

The Division Bench dismissed the Writ Appeal, upholding the Single Judge's order granting freedom fighters' pension from the date of application. The Court held that where primary evidence like an INA Certificate is available, the Government must sanction the pension without delay to honor the spirit of the Scheme.

What did the court decide?

The appellant directed to implement the Single Judge's order granting pension arrears from the date of application within three months.

Under Secretary to Govt Vs Noorjahan — Pension and Retirement Benefits | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 12.03.2014

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CORAM

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THE HONOURABLE Mr. JUSTICE N.PAUL VASANTHAKUMAR

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AND THE HONOURABLE Mr. JUSTICE M.SATHYANARAYANAN

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Writ Appeal No.2007 of 2013 and M.P.No.1 of 2013

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Under Secretary to the Government of India, Union of India,

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Ministry of Home Affairs, Freedom Fighters Division, Lok Nayak Bhavan, First Floor,

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New Delhi. ...Appellant

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.vs.

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Noorjahan ...Respondent

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Prayer: Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 13.9.2012 made in W.P.No.7208 of 2004.

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Prayer in W.P.No.7208 of 2004:

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Writ petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified mandamus celling for the records of the impugned order vide Lr.No.29/MDS/2345/97-FF [TNA] dated 26.10.1999 and followed by the order vide No.52/CC/299/2001-FF [TNA] dated 26.05.2003 passed by the respondent and quash the same and to direct the respondent to grant the freedom fighters pension payable under the "Swatantra Sainik Samman Pension Scheme" [SSSP] to the petitioner with effect from the date of application viz., 01.10.1997 submitted by the petitioner's husband.

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For Respondent : Mr.T.Muruganantham

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(Order of the Court was made by N.PAUL VASANTHAKUMAR,J)

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The Writ Appeal is filed against the order made in W.P.No.7208 of 2004 dated 13.9.2012 wherein the respondent herein who is the https://hcservices.ecourts.gov.in/hcservices/ widow of Shahul Hameed @ Yewa, a freedom fighter, challenged the

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rejection of Freedom Fighters' Pension and prayed for direction to the appellant to grant Freedom Fighters' Pension payable under the "Swatantra Sainik Samman Pension Scheme" to her w.e.f. the date of application i.e. 1.10.1997 submitted by her husband.

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The learned Single Judge taking into consideration the certificate issued by the All India INA Committee dated 18.9.1998 which is not disputed by the Government held that the petitioner's husband was a genuine freedom fighter and following the earlier decisions of the Supreme court and this Court, allowed that Writ Petition with a direction to grant Freedom Fighters' Pension under the said scheme to the petitioner from the date of application dated 01.10.1997 submitted by the petitioner's husband, who died on 19.12.2001, within a period of twelve weeks from the date of receipt of a copy of that order.

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Similar issue was considered by the First Bench of this Court in W.A.No.176/2014 by judgment dated 26.2.2014 wherein also, the similar certificate issued by the All India INA Committee was placed as an evidence. The Division Bench following the judgment of the Supreme Court in Gurdial Singh v. Union of India and Others reported in (2001) 8 Supreme Court Cases 8, particularly paragraphs 6 and 7 as well as the judgment of the Supreme Court in Government of India vs. K.V.Swaminathan reported in (1997) 10 SCC 190 dismissed the Writ Appeal wherein also the pension was ordered to the Ex-INA person from the date of the recommendation made by the State Government for the sanction of "Swatantra Sainik Samman Pension".

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The learned Additional Solicitor General appearing for the appellant submitted that the sanction of "Swatantra Sainik Samman Pension" can be ordered to the freedom fighters from the date of application only, if there is clear proof and not in doubtful cases and in support of his contention, he has relied on certain decisions.

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The learned Counsel appearing for the respondent pointed out that in the order sanctioning "Swatantra Sainik Samman Pension", it is not stated that the claim of the respondent's husband is doubtful. He also relied on several decisions in support of his contention to get pension from the date of the application.

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We have considered the rival submissions, perused the papers filed and the decisions cited by both sides.

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The respondent's husband was issued with a Certificate by the All India INA Committee and the same was issued prior to the date of application. Hence, the learned Single Judge has ordered to grant freedom fighters pension to the petitioner therein from the date of application submitted by her husband. The Hon'ble Supreme Court in the decision reported in 1993 Supplementary (3) SCC 2 (Mukund Lal Bhandari V. Union of India) ordered to sanction https://hcservices.ecourts.gov.in/hcservices/ and pay Swatantra Sainik Samman Pension from the date of

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application. The said decision was followed by this Court in W.A.No.3264/2000 dated 5.2.2007, W.A.No.558/2007 dated 10.4.2007, W.A.No.1280/2008 dated 27.4.2009, W.A.No.1465/2009 dated 26.10.2009 and W.A.No.422/13 dated 18.3.2013 and recently, in W.A.No.176/2014 dated 26.2.2014. In all the above cases, pension was ordered to be sanctioned from the date of application or from the date of recommendation made by the State Government. In this case, in the order of sanction dated 26.5.2003, it is not stated that the claim is not supported by primary evidence. The respondent's husband produced INA Certificate to prove his claim for pension.

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The Hon'ble Supreme Court in the decision reported in (2007) 9 SCC 525 (Union of India v. Kaushalaya Devi) held that if there are primary evidence available, the Central Government is bound to sanction SSS Pension from the date of application.

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In the decision reported in (2008) 11 SCC 309 (Union of India v. Kashiswar Jana) the Hon'ble Supreme Court held that if pension is sanctioned based on benefit of doubt or secondary material, pension can be ordered from the date of the High Court Order.

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In the decision reported in (2010) 8 SCC 796 (State of Orissa v. Choudhuri Nayak),it is held that no genuine Freedom Fighter should be denied pension. In the said decision in paragraph 10, the earlier decisions reported in 1993 Supp (3) SCC 2 (Mukund Lal Bhandari v. Union of India) and (2001) 8 SCC 8 (Gurdial Singh v. Union of India) were followed, wherein the object of the Freedom Fighters' Pension Scheme was considered and summarised the approach of the authorities in dealing with the applications for pension under the scheme, which reads as follows:

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"10(i) The object of the Scheme was to honour, and where necessary, to mitigate the sufferings of those who had struggled to achieve independence for the country. Many freedom fighters, even though they did not have sufficient income to maintain themselves, would even be reluctant to receive the pension under the Scheme, as they would consider it as putting a price on their partriotism. The spirit of the Scheme being both to assist and honour the freedom fighters and acknowledge the valuable sacrifices made by them, the authorities should treat the applicants with respect and courtesy. The Scheme should not be converted into some kind of routine scheme for payment of compensation.

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(ii) The persons intended to be covered by the Scheme are those who sacrificed and suffered for achieving the independence of the country, without expecting any reward for their sacrifice and sufferings. Therefore, they cannot be expected to maintain and produce perfect records or documents about their participation in the freedom struggle.

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(iii) Once the country has decided to honour freedom fighters by granting a pension, the approach of the authorities implementing the Scheme should not be obstructionist or technical https://hcservices.ecourts.gov.in/hcservices/ while examining the applications and documents produced, but be

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practical having regard to the fact that most of the applications are by old persons with no proper records.

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(iv) The criterion for pension under the Scheme is not age, but participation in freedom struggle. The freedom fighters' pension can, therefore, in exceptional cases, be granted even to those who were minors at the time of struggle, if evidence clearly showed that they had participated in the freedom struggle and fulfilled the requirements of the Scheme.

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The above principles were spelt out to ensure that no genuine freedom fighter was denied pension under the Scheme."

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Applying the principle stated in the above decisions to the facts of this case, we hold that the learned Single Judge was right in ordering arrears of pension from the date of application.

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There is no merit in the Writ Appeal and the same is dismissed. The appellant is directed to implement the order of the learned Single Judge within a period of three months from the date of receipt of a copy of this Order. No costs. Consequently, connected Miscellaneous Petition is also closed.

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Sd/Assistant Registrar(Records) Dated : 19.03.2014 //True Copy// Sub Assistant Registrar tsi To

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The Under Secretary to Government of India, Ministry of Home Affairs, Freedom Fighters Division, Lok Nayak Bhavan, 1st Floor, New Delhi.

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1 CC to Mr.T.Muruganandham, Advocate, S.R.No. 12595

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1 CC to Mr.K.Gunasekaran, Senior Panel Counsel, Central Government, S.R.No. 12019

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W.A.No.2007 of 2013

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KGK (CO) PSI (19/03/2014)