Sainaba Vs. Union of India (Uoi) - Court Judgment

Excerpt:
- - the criteria to be adopted in considering the various applications under the state rules as well as the central scheme are distinct and different. (3) scc 2 held that it is for the government to be satisfied regarding the genuineness of the claim and the court cannot sit in judgment as an appellate authority. we find it difficult to subscribe to the view taken by the madras and karnataka high courts as well as the view taken by the learned single judge of this court in sobha's case. the mere fact that an application has been recommended by the state government or that the state government has granted pension is not a ground to grant pension under the central scheme. applicant has to independently fulfil the criteria laid down under the central scheme for the grant of freedom fighter's pension and the central government can independently decide as to whether the applicant has satisfied the eligibility criteria laid down under the sss scheme. 2569 of 2005 was filed by the union of india aggrieved by the direction of the learned single judge to give sss pension from 23.2.1972. it is pertinent to note that petitioner's claim is only from 1.8.1980 to 20.1.1998, then we fail to see how the learned judge can grant it from the year 1972 onwards.k.s. radhakrishnan, j. 1. petitioners in these cases have raised claim for freedom fighter's pension before the central government under the swantrata sainik samman pension scheme (for short sss pension scheme) contending that on receipt of the freedom fighter's pension under the kerala freedom fighter's pension rules, 1971, the grant of pension under sss scheme is automatic. learned single judge took the view that granting of freedom fighter's pension by the state government would not automatically qualify the incumbent to claim central government pension under sss pension scheme. contrary view has been taken by another learned judge in sobha v. union of india : 2005(3)klt431 .2. we are in these cases called upon to examine the question as to whether once the state government or the central government grants pension to a particular individual is he automatically entitled to get pension either under the state government or under the central government scheme or vice versa. let us examine the eligibility criteria laid down under both the schemes. swatantrata sainik samman pension scheme (sssp) 1980 is announced by the government of india. paragraph 3 of the scheme deals with who are eligible dependents. the said provision is extracted below.3. who are eligible dependents? for the purpose of grant of samman pension, family includes (if the freedom fighter is not alive) mother, father, widower/widow if he / she has not since remarried, unmarried daughters.not more than one eligible dependent can be granted pension and in the even of availability of more than one dependent the sequence of eligibility will be widow/widower, unmarried daughters, mother and father.paragraph 9 of the scheme gives details of the documents, to be produced by the applicant to prove his claim. the kerala freedom fighters' pension rules, 1971 came into force on 1.4.1971 which also lays down the eligibility criteria and other relevant factors to be taken into consideration for the grant of freedom fighters' pension. distinguishing features of the kerala freedom fighters' pension rules, 1971 and the swatantrata sainik samman pension scheme, 1980 are as follows:____________________________________________________________________________________features state rules central rules____________________________________________________________________________________eligibility 1. sentenced to imprisonment 1. suffered minimumfor not less than six months imprisonment for six months2. kept under detention/undertrial 2. remained underground asfor not less than six months. for more than six months as:3. killed in action. proclaimed offender,4. sentenced to death. awardforarrest/headannoun-ced5. diedby police/military detention orderfiring/lathi charge issued but not served.6. lost job, means of livelihood/ 3. interned or externed substantial portion of property for six months.4. property confiscated/attached and sold7. permanently incapacitated or 5. permanently incapacitatedeffected with grave disease for in firing/lathi chargelife6. lost job and thus thelivelihood.____________________________________________________________________________________relaxation can be given if the collector feels no relaxation except inin eligibility that it is a deserving and hard case the case of women/ sc/st/freedom fighters____________________________________________________________________________________mode of informal. need not insist that the should be sent alongapplying application form being filled with required documentsin (rule20(ll) (rule9)____________________________________________________________________________________documents to no document is required to be produced. the production ofbe submitted relevant information is sufficient either of these documents is(r.15 & 20) mandatory.*certificate from jailauthority/ districtmagistrate/state govt.order from courts /govt. ofproclamation. certificatefrom veteran freedomfighters. order of intern-ment extrenment____________________________________________________________________________________enquiry to the entire process should be underta- scrutinised in consultationbe made ken by the collector or his with state advisory boardauthorised representatives on the basis of copy ofapplication.duration liable to be cancelledif given on mistaken grounds. for life except in the caseif financialcondition improves. of unmarried daughters.if found receiving other statepension.liable to be suspended if oneleaves state.____________________________________________________________________________________the criteria to be adopted in considering the various applications under the state rules as well as the central scheme are distinct and different. under the central scheme a person who had suffered a minimum imprisonment of six months is eligible. further any proclaimed offender who remained underground for more than six months is qualified for pension under the central scheme. a person on whom an award for arrest/head was announced or wherein order of detention was issued but not served is eligible. so far as state is concerned, criterion is different as per the table mentioned above. as per the state rules any relevant information is sufficient to satisfy the claim. production of either of certificate from jail authority, district magistrate, state government, order from courts/govt. proclamation, certificate from veteran freedom fighters, order of internment/externment along with the application is mandatory as per the central rules. as per the state rules the entire process should be undertaken by the collector or his authorised representatives. so far as central rule is concerned, application should be scrutinised in consultation with state advisory board on the basis of the copy of the application. paragraph 9 of the central scheme gives details as to how the claims are to be proved with evidence. the said provision is extracted below:9. how to prove the claims (evidence required). the applicant should furnish the documents indicated below whichever is applicable.(a) imprisonment/detention etc. certificate from the concerned jail authorities, district magistrates or the state government. in case of non availability of such certificates co-prisoner certificates from a sitting m.p. or m.l. a. or from an ex m.p. or an ex m.l. a. specifying the jail period (annexure i in the application form).(b) remainedunderground:(i) documentary evidence by way of court' s/government orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention.(ii) certificates from veteran freedom fighters, who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non-availability. this will be treated corroborative evidence in addition to some circumstantial and co-lateral evidence (annexure ii in the application form).(c) internment or externment.(i) order of internment or externment or any other corroboratory documentary evidence.(ii) certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available in addition to some circumstantial/co-lateral evidence (annexure ii in the application)note: the certifier veteran freedom fighters in respect of underground suffering, internment/ externment and the applicant should belong to the same administrative unit before the reorganisation of states and their area of operation must be the same.(d) loss of property, job, etc. orders of confiscation and sale of property, orders of dismissal or removal from service.further the scheme also provides that in case certificate is not forthcoming, applicant has to obtain a non availability record certificate (narc).3. government of india issued a communication dated 2.11.1998 to all the chief secretaries of the states, union territories as to how narc has to be issued and what are the criteria to be followed for the same. the said communication is extracted below:i am directed to invite your kind attention to the policy guidelines in respect of non availability of official records certificates (narc) under the s watantrata sainik samman pension scheme, 1980, issued by this ministry vide letter no 8/12/95-ff(p) dated june 7,1996 (copy enclosed). in spite of the above, the certificates received from your state do not conform to the said guidelines.2. as per the scheme, the claims of the applicants for samman pension are required to be supported by the duly verified official records of the relevant times. only in case of non availability of such records, secondary evidence as specified in the scheme can be made basis of such claims. however, due care and attention is required in such cases in view of several instances of bogus/forged claims which have come to the notice of the central government, it is of utmost importance that before recommending such cases, complete facts of the case in which the applicant claims involvement, are verified from all the agencies which could have been concerned with the matter. these may include the police station concerned, the district administration, the jurisdictional court, competent authority issuing detention order, the advisory board/appellate court, prison authorities, and intelligence agencies. discrete enquiry should also be made to ascertain genuineness of the claims. the narc should be issued only after the above verification. it is reiterated that the narc should invariably be worded as follows:all concerned authorities of the state government 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.3. instances have come to the notice of the central government, wherein contents of some crs have not been verified by the district authorities on the ground that records of relevant time have been destroyed. in such cases, the district authorities should have indicated the prescribed retention schedule of such records and the time when the said records were destroyed. this will enable the ministry to examine the veracity of several claims of applicants.4. in view of the above facts, it is requested that the above guidelines may kindly be followed in letter and spirit in order to ensure that samman pension is granted only to the genuine and eligible freedom fighters.the apex court in w.b. freedom fighters' organization v. union of india and ors. (2004) 7 sgc 716 has considered the claim under the sssp scheme of an applicant who had produced only certificate from the co-prisoner without producing narc. the apex court after referring to the earlier decision in state of maharashtra v. raghunath gajaman waingankar : air2004sc4264 , gurdial singh v. union of india : air2001sc3883 and mukundlal bhandari v. union of india 1993 supp. (3) scc 2 held that it is for the government to be satisfied regarding the genuineness of the claim and the court cannot sit in judgment as an appellate authority. further it was also held that the court cannot while exercising writ jurisdiction, enter into a reappreciation of evidence and/or reverse the findings arrived at by the state government, unless they be perverse or be such as no reasonable man acting reasonably could arrive at. we may also refer to the decision of the apex court in bhaurao dagdu paralkar v. state of maharashtra 2005 (6) scale 625 wherein the apex court has exposed the fraud practised by persons in various states in claiming freedom fighters' pension. apex court in that case appointed a retired judge of the bombay high court to examine the 354 doubtful cases. the court noticed in very many cases persons who have no role to play in the freedom struggle are claiming the benefits. in union of india v. mohan singh : (1996)10scc351 the apex court cautioned the government of the principles for claiming pension and held that the high court in writ jurisdiction shall not embark upon the appreciation of evidence. so far as w.a. no. 2029 of 2003 is concerned, ext.p5 order dated february 2002 states as follows:it will thus be observed that when he was arrested and acquitted in pe6/1122, there was no question of his going underground due to this pe. in para 18 of the wp no. 6904 of 2000 it has been mentioned that there were pe 1/1122 to pe 15/1122 registered about punnapara vay alar in the year 1946. therefore, these pes might have run concurrently not requiring going underground at all when pe6/1122 was tried. further going underground due to warrant of arrest, even if accepted as a true claim, is not recognised as a suffering under the provisions of sss pension scheme. moreover had he been wanted by the police they could have rearrested him on the day of acquittal in pe6/1122. since it was not done itself shows that he was not required by the police or any other authority nor any executive action was pending against him and he went underground voluntarily. therefore, even if records would have been available they would not have supported the case of late abdul khader. late abdul khader produced a certificate from shri c.g. sadhasivan and you submitted a certificate from shri v.k. vishwanathan and the gist whereof is as follows.referring to the certificate issued by c.g.sadhasivan and v.k. vishwanathan the government stated as follows:thus both the certifiers do not know the cause of going underground of late abdul khader. in the case of underground which were withdrawn later the pension as a policy is not sanctioned. this has already been brought out above that his claimed underground was not necessitated due to any executive action. therefore, the claims of late abdul khader does not make him eligible for the sss pension. the pension is sanctioned for undergoing suffering of the kind and period mentioned in the scheme and not for mere participation in the freedom movement. the fact that you are getting state government pension does not make you entitled for sss pension and the kss pension can be granted only to those cases which fulfill the requirements of sss pension scheme. a division bench of the honourable calcutta high court vide their judgment dated 6.12.1994 in appeal no. of 1994 in matterno. 1941 of 1993 havealready held thatitis not binding on the central government to accept the recommendation of the state government but the central government is free to take its own decision.we find no error or infirmity in the reasoning of the central government when they have considered the case of the appellant in w.a.no 2029 of 2003 in the light of the sss pension scheme.4. counsel appearing for the appellant placed reliance on the decision of the learned single judge of this court in sobha 's case, supra and the decisions of the. madras high court in thangavelu v. government of india 1994 (1) mlj 628, k.s. velusamy v. government of india : air2000mad42 and b.k. narasimha murthy v. union of india : air2001kant392 and contended that since state government has already granted pension, central governaent is bound to grand pension. we find it difficult to subscribe to the view taken by the madras and karnataka high courts as well as the view taken by the learned single judge of this court in sobha's case.5. we have already indicated, criteria to be adopted while considering the application under the state rules and central scheme are different. the mere fact that an application has been recommended by the state government or that the state government has granted pension is not a ground to grant pension under the central scheme. applicant has to independently fulfil the criteria laid down under the central scheme for the grant of freedom fighter's pension and the central government can independently decide as to whether the applicant has satisfied the eligibility criteria laid down under the sss scheme. no rule or regulation has been brought to our notice obliging the central government to follow the opinion expressed by the state government. central government would of course give due weight to the recommendation given by the state government, but that does not mean central government is bound to accept the recommendation made by the state government and vice versa. division bench of this court in its judgment dated 17.11.2004 in w. a. no 1641 of 2004 has taken the view that the mere fact that an applicant is receiving state pension does not mean central government is bound to grant pension. we fully endorse that view. in view of the above reasoning, we are inclined to allow w.a.no 2494 of 2005 and set aside the judgment of the learned single judge and we hold that the central government has to independently consider the application for central pension and would give due weight to the recommendation of the state government, but the recommendation is not binding on the central government.6. w. a. no. 2569 of 2005 was filed by the union of india aggrieved by the direction of the learned single judge to give sss pension from 23.2.1972. it is pertinent to note that petitioner's claim is only from 1.8.1980 to 20.1.1998, then we fail to see how the learned judge can grant it from the year 1972 onwards. in fact the government vide ext.p8 order has granted pension from 20.01.1998 which is the date of recognition of punnapra vayalar struggle. the learned judge without giving an opportunity to the central government to examine the claim from 1973 granted the order, which, in our view, cannot be sustained. we are of the view, if the petitioner has any claim that he is entitled to get it from 23.2.1972 onwards it is for him to raise it before the central government and the government would consider the same in accordance with law. w.a. no 2569 of 2005 is therefore allowed to the above extent.7. in such circumstances, we find it difficult to accept the principles laid down by the learned single judge in sobha 's case, which, in our view, is not correctly decided and the same stands overruled. we therefore find no infirmity in the decision taken by the central government to be interfered by us. we agree with the view of the learned single judge in o.p.no 8338 of 2002 and dismiss w.a.no 2029 of 2003. w.a. no 2494 of 2005 filed by the union of india would stand allowed.