The Under Secretary To Govt. Of India v. M.Velu (Ina)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

JUDGMENT RESERVED ON : 09.02.2024 JUDGMENT PRONOUNCED ON : 15.02.2024 CORAM :

THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY Writ Appeal No.2147 of 2023 and C.M.P.No.18356 of 2023 The Under Secretary to Govt. of India Ministry of Home Affairs Freedom Fighter Divisions 2nd Floor, NDCC-II Building Jai Singh Road, New Delhi - 110 001.

.. Appellant

Versus

1. M.Velu 2.The Govt. of Tamil Nadu Rep.by Additional Secretary Public (Political Pension- I) Department Secretariat, St.George Fort Chennai.

3.The Collector of Thiruvallur Thiruvallur.

4.The Tahsildar of Ponneri Ponneri.

.. Respondents

Prayer : Writ Appeal filed under Clause 15 of Letters Patent, to set aside the order dated 02.09.2021 passed in W.P.No.15654 of 2020. For the Appellant : Mr.R.Rajesh Vivekananthan Dy.Solicitor General For the Respondents: Mr.A.Edwin Prabhakar State Government Pleader for RR2 to 4 Mr.V.Nandagopalan for R1

JUDGMENT

(Judgment made by the Hon'ble Mr.Justice D.Bharatha Chakravarthy) This Writ Appeal is directed against the order of the learned Single Judge in W.P.No.15654 of 2020 dated 02.09.2021 in and by which the Writ Petition filed by the 1st respondent herein was allowed. By the said Writ Petition, the 1st respondent challenged the order of the appellant dated 02.03.2020 in and by which, the claim for Freedom Fighters Pension under the Swatantrata Sainik Samman Yojana (SSSY for short) was rejected by the appellant.

2. The case of the writ petitioner is that he was a member of the Indian National Army, having joined the Indian Independence League in the Kambe Branch, under the leadership of Shri Nethaji Subash Chandra Bose in the year 1943 and undertook campaign for freedom struggle. While so, he was arrested by the British Army, during May 1945 and was in Rangoon Jail, until December 1945, thus, having suffered incarceration for more than 6 months. The said fact has been affirmed by two of his co-prisoners, Mr.T.Ramaiah and Mr.S.Arokiyasamy. He also possesses a certificate from Colonel Dr.Lakshmi Sehgal, Member of the Indian National Army Freedom Fighters Pension Committee.

3. He had applied for pension, both under the State Government Freedom Fighters' Allowance Scheme and under the SSSY. However, no orders were passed and therefore, earlier he approached this Court by way of W.P.No.16858 of 2018.

4. When the Writ Petition came up for hearing, on behalf of the Central Government it was submitted by the learned Assistant Solicitor

General of India that the application of the petitioner is pending with the State Government and when such application is forwarded to the Central Government by the State Government with their recommendations, the claim of the petitioner will be considered. Accordingly, the earlier Writ Petition was disposed of with the following directions:- "7.Insofar as the central pension is concerned, it is admitted by the State Government that the Revenue officials including the District Collector have made recommendations and now, the file is pending with the State Government Secretariat. Therefore, the State Government has to forward the report to the Central Government for considering the claim of the petitioner for grant of Freedom Fighters pension under the Central Scheme without loss of further time.

Accordingly, the 3rd respondent is directed to forward the report/ recommendation received from the Revenue officials including the District Collector, Tiruvallur, to the Central Government within a period of two weeks from the date of receipt of a copy of this order so as to enable the 4th respondent/ Central Government to take a decision on the application filed by the petitioner and pass appropriate orders without loss of further time. On receipt of the communication from the 3rd respondent, the 4th respondent shall pass appropriate orders within a period of eight weeks thereafter. Accordingly, the Writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed."

5. As a matter of fact, the application of the 1st respondent was sent to the concerned District Collector, who after ascertaining the genuineness, sent a report to the Government of Tamil Nadu, recommending the case of the

1st respondent. Thereupon, by a communication dated 12.02.2020, the Deputy Secretary to Government, Public (Political Pension.I) Department, Government of Tamil Nadu, forwarded the application of the 1st respondent along with all requisite documents with the recommendation of the Government of Tamil Nadu to the Deputy Secretary to Government of India, Freedom Fighters' Division, Ministry of Home Affairs, New Delhi, recommending that the Central Pension also be granted to the 1st respondent.

6. Thereafter, the appellant considered the case of the 1st respondent and by an order dated 02.03.2020 rejected the claim, on the reason that nonproduction of Jail Certificate and ambiguities relating to the documents were not furnished, as required under the provisions of SSS Yojana. The relevant paragraph No.6 is extracted hereunder:- "After going through the records of the case, it is apparent that the instant claim for grant of SSS pension has been preferred on the basis of claimed participation in the Indian Independent League merged with INA subsequent imprisonment for the period from May, 1945 to Dec, 1945, however, the claimed imprisonment has not been verified due to absence of Jail Certificate as required under the provisions of SSS Yojana. Therefore, you are not eligible for the benefit of SSS Yojana. As regard the School Certificate dated 25.05.1933 issued by Burma Muslim Matriculation School,

Kandawglay, Rangoon, Burma is concerned, the said certificate cannot be accepted as the same does not prove your participation in INA or Indian Independent League or your imprisonment."

7. Challenging the same, the present Writ Petition is filed. The Writ Petition was resisted by the appellant by filing a counter affidavit, stating that so long as the 1st respondent herein did not fulfil the criteria, Pension cannot be granted. Reliance was also placed on the Judgments of the Hon'ble Supreme Court and this Court in support of their case.

8. The learned Single Judge considered the rival contentions and held that the eligibility of the 1st respondent, that he was the member of the Indian National Army, and that he suffered incarceration in Rangoon Jail for a period of more than 6 months, is not denied. His case has been rejected only on the ground that he had not enclosed the Jail Certificate evidencing that he was imprisoned between May 1945 and December 1945. The learned Single Judge took into consideration that the test of probability could be adopted by placing reliance on other certificates, enclosed by the petitioner therein, namely the Personal Knowledge Certificate issued by Dr.(Col) Lakshmi

Sehgal, dated 25.08.2006; the Personal Knowledge Certificate issued by the Tamil Nadu Indian National Army Forum, dated 17.09.2008; the Co-prisoners' Certificates each dated 03.12.2008 from Shri T.Ramaiah and Shri S.Arokiyasamy respectively and in the teeth of the fact that it is impossible for the 1st respondent to produce direct evidence of incarceration from the jail authorities, drew support from the Judgment of this Court in R.Ramalingam Vs. The Union of India., in W.P.No.5521 of 2014 dated 21.06.2018 allowed the Writ Petition and directed the appellant to disburse the arrears of pension from the date of the petitioner's original application. Aggrieved by the same, the appellant has filed the present Writ Appeal.

9. Mr.Rajesh Vivekanandan, learned Deputy Solicitor General of India assailing the order of the learned Single Judge would submit that Pension can be granted only if the 1st respondent is eligible and proves his claim as per the mandatory contained in the SSSY. The scheme categorically requires that in case whether the parties are not able to produce direct evidence, such secondary evidence in the form of co-prisoner's certificate has to be produced from the co-prisoners, who have suffered incarceration atleast for a period of

one year. When admittedly, the 1st respondent produced only the secondary evidences and when the veracity of co-prisoners' certificate could not be proved, the claim has rightly been rejected.

10. In support of his submissions, he would rely upon the Judgment of the Hon'ble Supreme Court of India in Union of India Vs. Bikash R.Bhowmik and Ors.,1 whereunder a person who had visited the prisoner - freedom fighter, when he was in jail, who was not at all a co-prisoner gave certificate, was held to be invalid proof. He would submit that in an identical circumstances, a co-ordinate Bench of this Court in Union of India Vs. V.Nagamalai and Ors.,2 had upheld the rejection. He would further rely upon the Judgment of the Hon'ble Supreme Court in Union of India Vs. Mohan Singh and Ors.,3 by placing reliance on paragraph Nos.4 and 5 to submit that it is for the Government to come to the satisfaction whether the 1st respondent has proved his case.

11. He would also rely upon the Judgment of the Division Bench of 1 (2004) 7 SCC 722 (2019) Scc Online Mad 32212 3 (1996) 10 SCC 351

the Bombay High Court in Rukminbai Vs. State of Maharashtra4, to contend that the claim should be supported by requisite documents. Mr. Rajesh Vivekanandan, would contend that Hon'ble Supreme Court of India in Union of India Vs. R.V.Swamy5 has categorically held that it is not for the High Court to come to a conclusion or other, when it relates to a case of appreciation of evidence. In Union of India Vs. A.Alagam Perumal Kone6 the Supreme Court has categorically held that the pension under the SSSY can be sanctioned only as per the proof required under the scheme and in no other manner.

12. Mr.Rajesh Vivekanandan, would submit that the learned Single Judge erred in granting the arrears from the original date of application, whereas, the Hon'ble Supreme Court in the case of Union of India and another Vs. Kaushalya Devi,7 had granted the benefit only from the date of the order of the High Court. Therefore, he would submit that a case is made out for interference.

(2022) 2 Mh.L.J.

(1997) 9 SCC 446 (2021) 4 SCC 535 (2007) 9 SCC 525

13. Per contra, Mr.V.Nandagopalan, the learned counsel counsel appearing on behalf of the 1st respondent would submit that the upon conduct of enquiry by the District Collector, the facts were verified and the coprisoners who certified were already receiving pension. In identical circumstances, a co-ordinate Bench of this Court in Union of India Vs. K.Duraisamy8 had directed grant of pension. He would therefore, pray that the order does not require any interference.

14. We have considered the rival submissions made on either side and perused the material records of the case.

15. The Government of India, originally framed a Freedom Fighters' Pension scheme, 1972, which was later modified and re-notified as SSS Yojana, 1980 with effect from 15.08.1981. Under the said scheme, Pension is granted to Freedom Fighters', at the rates notified and modified from time to time. The Scheme lays down the eligibility as produced in the present case is 8 (2018) 8 Mad LJ 223

reads as hereunder:- "Who is Eligible:

For the purpose of grant of Samman Pension under the scheme, a freedom fighter is:- (A) a person who had suffered minimum imprisonment of six months in the mainland jails before independence. Ex-INA personnel are also eligible for pension if the imprisonment/detention suffered by them was outside India for six months or more. In case of women and SC/ST freedom fighters the minimum period of actual imprisonment for eligibility of pension is three months."

16. Thus, it can be seen that Freedom Fighters who suffered minimum imprisonment of six months are eligible. They are required to apply in the form as contained in Annexure III. The applicants are required to prove their claims in the following manner, "How to prove claims (Evidence Required) The applicants should furnish the documents indicated below, whichever is applicable, in order to prove his/her claimed sufferings for grant of pension under the scheme.

(A) IMPRISONMENT / DETENTION:- Certificate from the concerned jail authority, District Magistrate or the State Government, indicating period of sentence awarded, date of admission, date of release and reasons for release. In the absence of such certificates from official records, a Non-Availability of Records Certificate (NARC) from the concerned authorities along with CoPrisoners' Certificates (CPC) as under:- i) Two Co-prisoners' Certificates from the freedom

fighter pensioners who had a proven jail suffering of one year. ii) One Co-prisoners' Certificate from sitting MP or MLA or from an ex-MP or ex-MLA specifying his jail period and that of the applicant. (ANNEXURE-IV)"

17. Thus, it can be seen that the primary mode of proving, was to obtain a certificate from the concerned Jail Authority or District Magistrate or the State Government or to obtain a Non-Availability of Record Certificate from the concerned authorities along with the co-prisoners certificate. A careful reading of the above, it would be clear that it is primarily concerned with Freedom Fighters who have suffered imprisonment in the mainland jails. The Scheme, it does not seem to specifically consider the method of primary proof in respect of the INA personnel, who suffered imprisonment outside India.

In such cases it is the Central Government which has the wherewithal to verify the facts from other countries such as Myanmar and obviously the Freedom Fighters' cannot produce any certificate from Jail Authority or District Judge or the State Government. Nor those authorities can issue any Certificate.

the case of members of the INA such as the 1st respondent herein, the only possible mode by which they can prove is by producing the co-prisoners' certificate.

18. Therefore, the scheme has to be read harmoniously and in the facts of the present case, the 1st respondent has produced the secondary evidences viz., the Co-prisoners' Certificates each dated 03.12.2008 from Shri T.Ramaiah and Shri S.Arokiyasamy respectively. When it has been mentioned in their certificate itself that they are granted pension and reference of the Order also being given, the impugned order without making any definite conclusion as to the co-prisioners, simple reasons that the veracity is not verifiable. The same cannot be put against the first respondent, who is otherwise eligible for pension. It must be borne in mind that the fact that the first respondent is a member of INA and suffered incarceration is not doubted. The District Collector who conducts on-field inquiry is satisfied with his eligibility and the State Government has also recommended. Under the circumstances, when the learned Single Judge has considered the various clauses of the scheme and read the same harmoniously and exercised his

discretion, this Court as an Appellate Court need not interfere in the discretion exercised by the learned Single Judge.

19. As far as the decisions relied upon on behalf of the appellant are concerned, the question as to the non-availability of the primary mode in case of the persons such as the 1st respondent belonging to the Indian National Army, incarcerated in a foreign country was not the issue which was specifically considered and answered.

20. The alternative submission made on behalf of the appellant is that having allowed the Writ Petition, the learned Single Judge without considering the dictum of the Hon'ble Supreme Court of India in Kaushalya Devi's case (cited supra) had ordered the pension from the date of original application, whereas as per the Judgment of the Hon'ble Supreme Court of India, it must be from the date of the order of the High Court. In the instant case, the present Writ Petition is the second round. Earlier, the 1st respondent filed W.P.No.16858 of 2018, which was disposed of with a direction to consider and pass orders by an order dated 31.01.2020. Therefore, the 1st

respondent would be entitled to arrears from the said date of the earlier Order dated 31.01.2020.

21. In the result, this Writ Appeal is disposed of with the following terms, (i) The order of the learned Single Judge dated 02.09.2021 in W.P.No.15654 of 2020 is upheld with the modification that the 1st respondent will be entitled for arrears of pension with effect from the date of the order of this Court in W.P.No.16858 of 2018, i.e., with effect from 31.01.2020. (ii) In view of the fact that the 1st respondent is aged 97 years, the appellant shall comply with the order within a period of two months from the date of receipt of a copy of this Judgment.

(iii) No costs. Consequently connected miscellaneous petition is closed.

(S.V.G., C.J.,) (D.B.C., J.,) 15.02.2024 Jer Index : Yes

Speaking order To 1.The Collector Thiruvallur District.

2.The Tahsildar Ponneri.

3.The Additional Secretary Govt. of Tamil Nadu Public (Political Pension) Department Secretariat, George Fort Chennai.

THE HON'BLE CHIEF JUSTICE AND D.BHARATHA CHAKRAVARTHY, J., Jer Pre-Delivery Judgment made in Writ Appeal No.2147 of 2023 15.02.2024