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Sunday, September 28, 2014

Freedom Fighter Pension - whether can be given even if he is found a bogus freedom fighter - Apex court held that In the facts and circumstances of this case, we have no hesitation to restore the judgment and order passed by the Single Bench of the High Court at Patna. The judgment and order of the Division Bench is set aside. As the respondent has been wrongly allowed pension after rejecting claim at the first instance by the appellant, the High Court has directed suo motu inquiry and on this basis pension had been withdrawn, and also considering the fact that the recipient of pension respondent No.1 has died, we direct that the amount paid to him shall not be recovered from his legal representatives. = CIVIL APPEAL NO.6651 OF 2008 Union of India & Anr. ... Appellants Versus Jai Kishun Singh (D) through L.Rs. & Ors. ... Respondents =2014 - sep. month - http://judis.nic.in/supremecourt/filename=41910

 Freedom Fighter Pension - whether can be given even if he is found a bogus freedom fighter - Apex court held that In the facts and circumstances of  this  case,  we  have  no  hesitation  to
restore the judgment and order passed by the Single Bench of the High  Court at Patna.  The judgment and order of the Division Bench is  set  aside.   As the respondent has been wrongly allowed pension  after  rejecting  claim  at the first instance by the appellant, the High Court has  directed  suo  motu inquiry and on this basis pension had been withdrawn, and  also  considering
the fact that the recipient of pension respondent No.1 has died,  we  direct that the  amount  paid  to  him  shall  not  be  recovered  from  his  legal representatives. =


whether  Freedom  Fighter  pension  had  been  undeservingly   extended   to
respondent No.1 inspite of the fact that he did not participate  in  freedom
struggle as he was a child of 7 to 8 years in the year 1942.=
    
Grant of freedom fighters' pension to bogus  claimants  producing  false
and fabricated documents is as bad as genuine freedom fighters being  denied
pension. The only way to respect the sacrifices of freedom  fighters  is  to
ensure that only genuine freedom fighters get the pension.
This  means  that
the Government should weed out false and fabricated claims  and  cancel  the
grant when the bogus nature of the claim comes to light.
In Union  of  India vs. Avtar Singh [(2006) 6 SCC 493] 
this Court therefore cautioned:

“8.......The genuine freedom fighters deserve to be treated with  reverence,
respect and honour. But at the same time it cannot be  lost  sight  of  that
people who had no role to  play  in  the  freedom  struggle  should  not  be
permitted to benefit from the liberal approach required  to  be  adopted  in
the case of the freedom fighters, most of whom  in  the  normal  course  are
septuagenarians and octogenarians."

In the facts and circumstances of  this  case,  we  have  no  hesitation  to
restore the judgment and order passed by the Single Bench of the High  Court
at Patna.
The judgment and order of the Division Bench is  set  aside.  
As the respondent has been wrongly allowed pension  after  rejecting  claim  at
the first instance by the appellant, the High Court has  directed  suo  motu
inquiry and on this basis pension had been withdrawn, and  also  considering
the fact that the recipient of pension respondent No.1 has died,  we  direct
that the  amount  paid  to  him  shall  not  be  recovered  from  his  legal
representatives.

The appeal is accordingly allowed.  No costs.

2014 - sep. month - http://judis.nic.in/supremecourt/filename=41910

                                                    Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.6651 OF 2008



Union of India & Anr.                        ... Appellants

                                   Versus

Jai Kishun Singh (D) through L.Rs. & Ors.          ... Respondents



                               J U D G M E N T



ARUN  MISHRA, J.



In the case in hand, the Court is required  to  adjudicate  upon  the  issue
whether  Freedom  Fighter  pension  had  been  undeservingly   extended   to
respondent No.1 inspite of the fact that he did not participate  in  freedom
struggle as he was a child of 7 to 8 years in the year 1942.

      Initially, original respondent No.1’s case for granting such pension
was declined by the appellant vide letter dated 19.06.1995.  However,
original respondent No.1 was successful in getting released pension on
second attempt and it was ordered to be released on 26.12.1997 with
retrospective effect from 28.07.1981.
      The matter did not set at rest at that. The High Court at Patna
directed suo motu inquiry in the rampant complaints that large persons in
the State of Bihar were availing such benefits inspite of not having
participated in freedom struggle as contemplated under the Swatantrata
Sainik Samman Pension Scheme, 1980 (for short “the Scheme”).  The Deputy
Collector conducted inquiry into the matter and recorded evidence.  He
found that claim of the deceased respondent No.1 was not genuine.  On that
basis, the Union of India issued show-cause notice and thereafter took
decision on 19.05.2004 to cancel pension with effect from the date it was
initially sanctioned, i.e. 28.07.1981 and the amount of pension already
drawn by him be recovered.
      The deceased respondent No.1  unsuccessfully  impugned  the  aforesaid
order in writ petition filed before the Single Bench. However, the  Division
Bench of the High Court in the appeal has quashed  the  order.   Hence,  the
Union of India has come up in appeal  before  us.  The  operation  of  order
passed by the Division Bench of the High Court was stayed by this  Court  on
10.11.2008.

      The learned counsel for the  appellants  submitted  that  pension  was
rightly withdrawn.  The age of the deceased  respondent  No.1  was  7  to  8
years in 1942. Thus, his participation in the incident of  August  1942  was
rightly disbelieved.  He was unable even to give details of the incident  in
the course of inquiry.  The reliance placed by the  Division  Bench  on  the
determination of age by the Medical Board at 73 years in 2001  was  uncalled
for as the Medical Board has not conducted scientific tests and  has  opined
on the basis of physical appearance of the  original  respondent  No.1.   He
had also submitted that the original respondent No.1 had stated his  age  on
06.06.1977 to be 40 years  while  deposing  in  Criminal  Case  No.1018/1974
(Trial No.381/77).  Apart from this, in the Voter List of 1975, his age  has
been mentioned as 42 years.  Thus, at the age of 7 to  8  years,  the  claim
that  he  participated  in  freedom  struggle  could  not  be  said  to   be
believable.

      Per contra, the counsel for L.Rs.  of  the  deceased  respondent  No.1
would submit that pension had been rightly sanctioned in 1997.   Thereafter,
in view of the report of Medical Board, there was no reason to  withdraw  it
as the age at the relevant time in 1942 would have been 13 years.

      The main question for consideration is what was  the  approximate  age
of deceased respondent No. 1 on 15th August, 1942.  He has claimed that  his
age was 13 years when he went underground for a  year  w.e.f.  14th  August,
1942 to 15th August, 1943.

The enquiry officer recorded oral statement  indicating  that  his  age  was
much less. We discard such statement as oral  statement  cannot  be  a  safe
criteria for arriving at conclusion.   However, the documentary evidence  of
the years 1975 and 1977 in the  form  of  Voter  List  and  deposition-sheet
clinches  the  issue  and  establishes  that  the  claim  is  not   genuine.
Documentary evidence has to prevail, more so as there was  no  such  dispute
as to age at the relevant time.   As per deposition-sheet of criminal  case,
age was approximately 40 years in 1977.   If  the  said  date  is  taken  as
correct, the date of birth would come to the year 1937.  As per  Voter  List
of 1975, his age was 42 years.  From aforesaid documents  in  consideration,
age in 1942 would have been above 5 years and below 10 years.   At  such  an
age, participation in the incident in question is highly improbable as  such
cancellation of the pension in the facts  and  circumstances  of  the  case,
could not be said to be unwarranted at all.

      The freedom fighter  pension is a form of gratitude  extended   by  an
indebted nation  in  recognition  of  the  sacrifice  made  by  the  freedom
fighters to achieving independence.  We  are  conscious  of  the  fact  that
liberal approach has to be adopted in such matters so that rightful  persons
are not deprived of deserving benefit for lack of evidence,  after  a  lapse
of long time.   It has been laid down by this Court that such cases have  to
be decided on preponderance    of    probabilities  and  standard  of  proof
beyond reasonable doubt is not to be applied.

      Relying upon  Gurdial Singh vs. Union of  India  (2001)  8  SCC  8  in
Kamlabai Sinkar vs. State of Maharashtra & Ors.  (2012)  11  SCC  754,  this
Court has laid down thus :

“6. Having perused the above materials on record, at  the  very  outset,  we
wish to refer to the observations made by this Court in regard to the  grant
of freedom fighters’ pension in the decision in Gurdial Singh  v.  Union  of
India.  In para 7 of the judgment, this Court has highlighted the manner  in
which such claims are to  be  considered  for  grant  of  freedom  fighters’
pension.  It will be worthwhile to make a  reference  to  the  said  passage
before  expressing  our  conclusion  with  regard  to  the  claim   of   the
appellant’s husband in the case on hand.”

    7. Para 7 reads as under: (Gurdial Singh case)

“7. The standard of proof required in such cases is not such standard  which
is required in  a  criminal  case  or  in  a  case  adjudicated  upon  rival
contentions or evidence of the parties.  As the object of the Scheme  is  to
honour and to mitigate the sufferings of those who had given their  all  for
the country, a liberal and not  a  technical  approach  is  required  to  be
followed while determining the merits  of  the  case  of  a  person  seeking
pension under the Scheme.  It should  not  be  forgotten  that  the  persons
intended to be covered by the Scheme had  suffered  for  the  country  about
half-a-century back  and  had   not   expected   to   be  rewarded  for  the
imprisonment suffered by them.  Once the  country  has  decided  to   honour
such  freedom  fighters,   the   bureaucrats   entrusted  with  the  job  of
examining  the  cases  of  such  freedom  fighters are expected to  keep  in
mind  the  purpose   and   object   of   the  Scheme.   The  case   of   the
claimants  under  this  Scheme  is required to be determined  on  the  basis
of  the  probabilities  and  not on the touchstone of the test  of   ‘beyond
reasonable  doubt’. Once on the basis of the evidence  it  is   probabilised
 that  the claimant  had  suffered  imprisonment  for  the  cause   of   the
country and during the freedom struggle, a presumption is required   to   be
drawn  in  his   favour   unless   the   same   is   rebutted   by   cogent,
reasonable and reliable evidence.”

                                               [emphasis added]

We are unable to rely upon determination of age by the Medical Board  as  it
is based upon physical appearance only and not  based  upon  any  scientific
medical test like ossification test and radiological  examination.  When  it
is based  on such scientific tests as laid down in Om Prakash vs.  State  of
Rajasthan & Anr. (2012) 5 SCC 201, it is  of  strong   corroborative  value.
The Medical Board held on 11.4.2002 has opined on physical appearance  basis
age about 73 years. It is not based on scientific tests hence it  cannot  be
accepted, more so in view of other documentary evidence on record.

This Court in State of Orissa vs. Choudhury Nayak (D) through L.Rs.  &  Ors.
(2010) 8 SCC 796 has adversely commented on undeserving candidates  availing
the benefits of such welfare schemes, thus:

“9. It is of some interest to note from  the  statistics  furnished  by  the
Central government in their  additional  affidavit,  that  1,70,813  freedom
fighters/dependants have been sanctioned freedom  fighters  pension  (as  on
31.5.2010). At present as many as  60000  persons  are  getting  pension  or
family pension as freedom fighters/dependants.  The  average  pension  of  a
freedom fighter and after his/her death to the  spouse  is  Rs.12400/-  p.m.
and the average pension paid to a dependant unmarried  daughter  is  Rs.3000
per month. The expenditure for the  year  2009-2010  under  the  scheme  was
Rs.785 crores. We have referred to these figures  only  to  show  that  when
false claims come to the notice of the Central Government, it  is  bound  to
take stern action. Any complacency on the part of the Government  in  taking
action against bogus claims under any scheme would  encourage  bogus  claims
under all schemes, by undeserving candidates who  are  “well  connected  and
influential”. False claimants walking  away  with  the  benefits  meant  for
genuine and deserving candidates has become  the  bane  of  several  welfare
schemes.

10.   xx    xx    xx

11. Grant of freedom fighters' pension to bogus  claimants  producing  false
and fabricated documents is as bad as genuine freedom fighters being  denied
pension. The only way to respect the sacrifices of freedom  fighters  is  to
ensure that only genuine freedom fighters get the pension. This  means  that
the Government should weed out false and fabricated claims  and  cancel  the
grant when the bogus nature of the claim comes to light. In Union  of  India
vs. Avtar Singh [(2006) 6 SCC 493] this Court therefore cautioned:

“8.......The genuine freedom fighters deserve to be treated with  reverence,
respect and honour. But at the same time it cannot be  lost  sight  of  that
people who had no role to  play  in  the  freedom  struggle  should  not  be
permitted to benefit from the liberal approach required  to  be  adopted  in
the case of the freedom fighters, most of whom  in  the  normal  course  are
septuagenarians and octogenarians."

In the facts and circumstances of  this  case,  we  have  no  hesitation  to
restore the judgment and order passed by the Single Bench of the High  Court
at Patna.  The judgment and order of the Division Bench is  set  aside.   As
the respondent has been wrongly allowed pension  after  rejecting  claim  at
the first instance by the appellant, the High Court has  directed  suo  motu
inquiry and on this basis pension had been withdrawn, and  also  considering
the fact that the recipient of pension respondent No.1 has died,  we  direct
that the  amount  paid  to  him  shall  not  be  recovered  from  his  legal
representatives.

The appeal is accordingly allowed.  No costs.

                                                 .........................J.

(Vikramajit Sen)

                                                 .........................J.

(Arun Mishra)
New Delhi,
September 10, 2014.




















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