Freedom Fighter’s Pension = Whether a particular applicant is entitled for pension under the Swatantrata Sainik Samman Pension Scheme of 1980, is a matter which is required to be considered having regard to facts and documentary evidence produced in each case. When the claim is under a particular scheme, unless one fulfills the eligibility criteria for grant of pension, as mentioned in the scheme, no applicant can claim such pensions, as a matter of right.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.680 OF 2021
(Arising out of SLP (C) No.5343 of 2019)
Union of India ....Appellant(s)
vs.
A. Alagam Perumal Kone & Others ....Respondent(s)
J U D G M E N T
R.SUBHASH REDDY,J.
1. Leave granted.
2. This appeal is filed by the Union of India,
aggrieved by the judgment and order dated 29.08.2018
passed in W.A.(MD) NO. 907 of 2018 by Madras High Court
(Madurai Bench), whereby, the appeal of the appellant
is dismissed confirming the order of the learned Single
Judge, passed in W.P.(MD) NO. 17290 of 2017.
1
C.A.@SLP(C)No.5343/2019
3. By Order dated 26.10.2017, passed in W.P.(MD)
No.17290 of 2017, filed by the 1st Respondent herein,
while disposing of the writ petition, directions were
issued to the appellant herein, to grant Freedom
Fighter’s Pension to the 1st Respondent under
Swatantrata Sainik Samman Pension Scheme and pass
suitable orders within a period of four weeks from the
date of receipt of the order.
4. Aggrieved by the order of the learned Single
Judge, the appellant herein, preferred writ appeal
under Clause 15 of the Letters Patent and the same is
dismissed by the impugned order.
5. The Respondent No.1 herein, has submitted his
first application for grant of pension under
Swatantrata Sainik Samman Pension Scheme on 10.04.1997,
which was forwarded by the 2nd Respondent through 3rd
Respondent. In the said communication, which was
received by the appellant on 26.07.2001, it was
observed that the application was not properly filled
up and the certificate issued by one of the certifiers
was vague. Non-Availability of Records Certificate
(NARC) was not produced from the competent authority,
2
C.A.@SLP(C)No.5343/2019
as per the scheme. In absence of any categorical
recommendation made by the 2nd Respondent, the
application made by the 1st Respondent, at first
instance, on 10.04.1997, was rejected by the appellant
vide its letter dated 27.02.2004. Thereafter, for about
a period of 13 years, no steps have been taken by the
1
st Respondent and on 29.08.2017, he again sent a
communication to the appellant herein, for grant of
pension from 2011 under Swatantrata Sainik Samman
Pension Scheme, stating that he was imprisoned for more
than six months from 05.01.1944 to 05.07.1944 during
Quit India Movement.
6. It is the case of the appellant that as the said
communication was not supported by any documents, the
appellant herein, sent a letter dated 27.10.2017 which
is addressed to the 2nd Respondent with a copy to the
1
st Respondent to send the claim application by
completing all the required formalities as per
Swatantrata Sainik Samman Pension Scheme. At that
stage, the 1st Respondent herein, has filed the Writ
Petition before Madras High Court (Madurai Bench),
seeking directions by way of mandamus to direct the
3
C.A.@SLP(C)No.5343/2019
appellant herein, to grant Freedom Fighter’s Pension
under the Swatantrata Sainik Samman Pension Scheme.
7. It is the case of the appellant that writ petition
was heard and disposed of by order dated 26.10.2017,
without issuing a notice and without giving any
opportunity to file counter affidavit to rebut the
allegations, made in the petition.
8. Learned Single Judge, referring to certain
communications made by the 1st Respondent, by recording
a finding that the certificate issued by an approved
certifier is sufficient for grant of pension, has
disposed of the petition by directing the appellant to
grant pension under Swatantrata Sainik Samman Pension
Scheme and to pass suitable orders, in respect thereof.
9. It is the case of the appellant that even in the
appeal, though specific grounds are raised before the
Division Bench, inter alia, stating that no notice was
issued in the writ petition; the application by the 1st
Respondent for grant of freedom fighters’ pension was
not supported by required documents; and non-disclosure
of the rejection of the first application for grant of
pension, the High Court has dismissed the appeal
4
C.A.@SLP(C)No.5343/2019
without assigning valid reasons and without considering
any of the grounds raised in the appeal.
10. Before this Court, the counter affidavit is filed
by the 1st Respondent. While denying various allegations
made by the appellant, it is stated that as the
appellant has not complied with the directions issued
by the High Court, he has already moved contempt
petition and without disclosing the same, the Special
Leave Petition is filed before this Court. With
reference to allegations made in the appeal, it is
stated that being a veteran freedom fighter in Indian
freedom struggle, he had suffered various losses and
hardships including imprisonment (not limited to
imprisonment of six months in 1944). Moreover, he had
to go underground for more than a year in 1942 (August,
1942 to December, 1943), as he was facing detention
orders.
11. Further, it is stated that as he has actively
participated in Quit India Movement, as a consequence
of his participation, he was sentenced and was lodged
in Alipuram Central Prison, for more than six months
from 05.01.1944 to 05.07.1944.
5
C.A.@SLP(C)No.5343/2019
12. While referring to his first application made in
the year 1997, it is alleged that such application made
by him was not dealt with due care by the appellant and
the appellant adopted a lethargic approach in
considering the application of the 1st Respondent. While
referring to his earlier rejection, it is stated that
such a rejection made by the appellant, on his first
application, was whimsical and arbitrary.
13. In response to the letter dated 30.08.2017,
addressed by the appellant, it is stated that he has
replied vide letter dated 07.09.2017, stating that all
other veteran freedom fighters had passed away and
except one Mr. A. M. Lakshmanan whose Co-Prisoner
Certificate has already been submitted along with the
certificate of one Mr. A. C. Periasamy, thus, he has
complied with all the requirements as contemplated
under the scheme, as such, there are no grounds to
interfere with the orders passed by the High Court.
14. We have heard Ms. Madhavi Divan, learned
Additional Solicitor General, appearing for the Union
of India and Mr. Divyanshu Srivastav, Advocate,
appearing for the respondent / writ petitioner.
6
C.A.@SLP(C)No.5343/2019
15. It is contended by the learned Additional
Solicitor General, appearing for the Union of India
that the learned Single Judge of the High Court has
disposed of the petition without issuing any notice and
without giving any opportunity of filing counter
affidavit to rebut the allegations, made in the writ
petition. It is submitted that while exercising powers
of judicial review under Article 226 of the
Constitution of India, the High Court has committed
error in issuing positive directions for grant of
pension.
16. It is submitted that when the scheme is prepared
for grant of pension with certain conditions, unless
compliance of such conditions is examined by the
competent authority, no directions ought to have been
issued, directing grant of pension.
17. It is submitted that at the first instance, the 1st
Respondent has applied for grant of pension in the year
1997 and the same was forwarded by the 2nd Respondent
through 3rd Respondent without making any specific
recommendations and the same was rejected, after lapse
of several years, again, application is made for grant
7
C.A.@SLP(C)No.5343/2019
of pension. Even before the same is considered by the
competent authority, the 1st Respondent has approached
the High Court and the High Court has disposed of the
petition without giving opportunity of filing counter
affidavit.
18. It is submitted that in spite of raising several
grounds, the Division Bench also failed to consider the
same, and confirmed the order of the learned Single
Judge by dismissing the appeal filed by the appellant
herein.
19. Learned counsel in support of her arguments relied
on judgment of this Court in the case of W.B.Freedom
Fighters’ Organization v. Union of India and Others1
and also the judgment in the case of Union of India v.
Bikash R. Bhowmik and Others2.
20. On the other hand, Mr. Divyanshu Srivastav,
appearing for the 1st Respondent while refuting the
submissions made by the learned counsel appearing for
the appellant, has contended that though the respondent
has participated in the freedom struggle and suffered
losses apart from his imprisonment during the period of
1. 2004(7)SCC 716
2. 2004(7)SCC 722
8
C.A.@SLP(C)No.5343/2019
Quit India Movement, he is unduly deprived of the
pension, which he is entitled to, as per the scheme
prepared.
21. While drawing our attention to the Order dated
26.04.2019, passed in Special Leave Petition (C)
No.11132 of 2019 (Diary No.2923 of 2019), it is
submitted that similar petition is already dismissed by
this Court and further, relying on the judgment of this
Court in the case of Union of India v. Sitakant S.
Dubhashi and Anr.3, learned Counsel has submitted that
there is no illegality in the impugned order passed by
the High Court and there are no grounds to interfere
with the same.
22. It is, further, submitted that the documents which
are already filed, are sufficient to grant pension as
per the Swatantrata Sainik Samman Pension Scheme and as
the appellant was not considering his application for
grant of pension, the learned Single Judge of the High
Court has rightly issued directions for grant of
pension. There are no grounds to interfere with the
same.
3. 2020(3)SCC 297
9
C.A.@SLP(C)No.5343/2019
23. It is not in dispute that at first instance, the
1
st Respondent herein, has applied for grant of pension
in the year 1997 and the application dated 10.04.1997,
submitted by the 1st Respondent is placed on record. In
the said application, the 1st Respondent has stated that
he was underground during the Quit India Movement of
1942 i.e. during the period from August, 1942 up to a
period of more than six months. At that time, along
with the first application, the Non - Availability of
Records Certificate (NARC) obtained from the
Government, was not produced and merely a certificate,
certified by the C.J.M., Madurai, was produced.
24. The first application, which was forwarded to the
appellant, was without any specific recommendation. On
receipt of such communication from the 2nd respondent,
the claim of the 1st Respondent was considered and
rejected. The said order has become final and the same
was not questioned. Nearly after 13 years of such
rejection, on 29.08.2017, the 1st Respondent has again
claimed pension under the Swatantrata Sainik Samman
Pension Scheme on the plea of his imprisonment for more
than six months for participating in the Quit India
10
C.A.@SLP(C)No.5343/2019
Movement. The application, which is made for the second
time, is also placed on record as Annexure “P-5”. In
the said application, he has stated that he was
imprisoned for more than six months i.e. from
05.01.1944 to 05.07.1944, which is clearly in variance
to the period which he has mentioned in the first
application. Though, earlier rejection has become final
and the particulars mentioned in the claim made by the
1
st Respondent are in variance to the particulars
mentioned at first instance, without issuing notice and
without giving opportunity to the appellant to file
counter affidavit, the learned Single Judge has
disposed of the petition by granting a positive
direction to grant pension. The claim of the 1st
Respondent is under the scheme, notified by the
appellant-Government. The scheme prescribes to file
certain documents to authenticate the imprisonment of a
claimant as a freedom fighter.
25. It is the case of the appellant that the
documentary evidence filed by the 1st Respondent is not
in compliance of the scheme. It is a matter which is to
be left to the competent authority to consider. When
11
C.A.@SLP(C)No.5343/2019
the application of the 1st Respondent is already
rejected in the year 1997, when such rejection order
has become final, it is not open for the 1st Respondent
to make a claim for second time for pension again by
way of fresh application. The 1st Respondent would be
entitled to the benefits of this scheme, if he produces
the relevant material in support of his claim. As
regards the sufficiency of proof, the scheme itself
mentions the documents which are required to be
produced along with the application. Whether the
claimant fulfills the criteria or not, it is for the
competent authority to examine it. Even before the
application is considered by the competent authority,
in exercise of powers of judicial review, the High
Court should not have issued any directions for grant
of pension. In this case, it is also to be noticed that
earlier the claim of the 1st Respondent is already
rejected and the said order has become final. After
perusal of the order passed by the learned Single Judge
and the Division Bench, we are of the view that no
valid reasons have been assigned to grant relief to the
1
st Respondent for grant of pension. It appears that the
12
C.A.@SLP(C)No.5343/2019
1
st Respondent has not disclosed his earlier rejection
by producing the earlier orders while making the
application for the second time before the appellant
and also before the High Court.
26. In any event, when such serious factual disputes
emerge for consideration, the High Court ought not to
have disposed of the petition filed by the Respondent
without even issuing notice and giving opportunity to
file counter affidavit to rebut the allegations made by
the appellant. The judgments of this Court, relied on
by the learned Additional Solicitor General in the case
of W.B.Freedom Fighters’ Organization v. Union of India
and Others1 and in the case of Union of India v. Bikash
R. Bhowmik and Others2 will support the plea of the
appellant. In the case of W.B.Freedom Fighters’
Organization v. Union of India and Others, this Court
has held that when the competent committee has
considered and opined that the applications were not
supported by required documents and rejected the
application, this Court cannot interfere with the same
and such findings cannot be said to be perverse or
unreasonable.
13
C.A.@SLP(C)No.5343/2019
27. Further, in the case of Union of India vs. Bikash
R. Bhowmik and Others2, this Court has held that the
pension under Swatantrata Sainik Samman Pension Scheme
of 1980 can be sanctioned as per the proof required
under the scheme and in no other manner. In the said
judgment, this Court has reversed the order passed by
the High Court.
28. In the instant case, the appellant stands on a
better footing, for the reason that although the
application made by the 1st Respondent on 10.04.1997 was
rejected and the said order has become final, he again
approached the appellant with the same request. Even
before the Competent Authority considers the
application, the 1
st Respondent approached the High
Court by filing Writ Petition and the High Court, not
only entertained the petition, but disposed of the same
without even notice and opportunity of filing counter
affidavit to the appellant.
29. We have also perused the order passed by the
Division Bench. Even the Division Bench of High Court
has not considered various grounds raised by the
14
C.A.@SLP(C)No.5343/2019
appellant, while confirming the order of the learned
Single Judge.
30. It may be true that the 1st Respondent is getting
pension as per the scheme, mooted by the State, but, at
the same time, to claim pension under the scheme of
1980, the 1st Respondent has to furnish the required
proof as contemplated under the scheme. When the claim
is under a particular scheme, unless one fulfills the
eligibility criteria for grant of pension, as mentioned
in the scheme, no applicant can claim such pensions, as
a matter of right.
31. Though, the learned Counsel appearing for the
respondent – Writ Petitioner has placed reliance on the
order passed by this Court in rejecting the Special
Leave Petition in limine and also, further, judgment of
this Court in the case of Union of India v. Sitakant S.
Dubhashi and Anr.3, we are of the view that the order
passed by this Court and also the judgment in the case
of Union of India v. Sitakant S. Dubhashi and Anr.
would not render any assistance in support of his
claim. Whether a particular applicant is entitled for
pension under the Swatantrata Sainik Samman Pension
15
C.A.@SLP(C)No.5343/2019
Scheme of 1980, is a matter which is required to be
considered having regard to facts and documentary
evidence produced in each case, as such, the judgment
relied on by the learned counsel is of no assistance to
support his case.
32. In view of the reasons, stated supra, we allow
this appeal and set aside the judgment dated 29.08.2018
passed in W.A.(MD) No.907 of 2018 by the Madras High
Court (Madurai Bench) and consequently, the Writ
Petition filed in Writ Petition (MD) No.17290 of 2017
stands dismissed, with no order as to costs.
..........................J.
(ASHOK BHUSHAN)
..........................J.
(R. SUBHASH REDDY)
NEW DELHI;
February 22, 2021
16
