published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40741
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 7899-7901/2013
(arising out of S.L.P.(Civil) Nos.26441-26443 of 2012)
State of Maharashtra & Ors. ……….Appellants
Vs.
Namdeo etc.etc. ………Respondents
J U D G M E N T
A.K.SIKRI,J.
1. Leave granted.
2. The three respondents herein were the original petitioners who had
filed three separate Writ Petitions in their individual capacities. In
these Writ Petitions, the petitioners claimed that they took part in the
freedom movement and were, therefore, entitled to the benefits which the Government has announced with the proclamation of the “Freedom Fighters Pension Scheme”.
Having regard to the fact that all the claims were on
similar set of facts, the Bench High Court of Judicature at Bombay
consolidated those three petitions and after hearing, has allowed all by
single judgment dated 10.2.2012 with the following directions:
“(i) The impugned orders passed by the State Government, thereby
rejecting claims of the petitioners for freedom fighter’s
pension, are quashed and set aside. It is held that the
petitioners are entitled to freedom fighter’s pension, under the
Scheme framed by the State of Maharashtra, from the date of their
first application.
(ii) The respondent-State and its concerned authorities are
directed to pay freedom fighter’s pension to the petitioners,
from the date of their first application. They shall start
payment of said pension to the petitioners, within a period of
three months from today. The arrears of pension, from the dates
of their first application till realization of pension, shall be
paid to the petitioners within a period of six months from
today.”
3. As the appellant/State of Maharashtra is aggrieved by this judgment,
instant special leave petitions are filed. Along with State of
Maharashtra, others who have joined are the officers in the State
Government who were arrayed as respondents in the Writ Petitions. Notice
in these petitions was issued pursuant to which respondents entered
appearance through their counsel. We heard counsel for both the parties at
length.
4. In order to appreciate the controversy as well as propriety/validity
of the orders passed by the High Court, it would be necessary to take note
of the foundational basis of the claim for pension by the respondents.
5. The State of Maharashtra came out with Pension Scheme for “Underground
Freedom Fighters” and Participants of the “Hyderabad Liberation Movement”
in the year 1982 and 1992 respectively. Thereafter, another specific
scheme dated 4.7.1995 was framed known as “Freedom Fighters Pension Scheme”
which was issued vide Government Resolution of even date. As per this, the
benefits were extended to freedom fighters of different categories
stipulated therein, one of which was “Underground Freedom Fighters”. Since
the respondents had made the claim under this category, we reproduce
hereinbelow the said portion of the Government Order dated 4th July 1995:
“Underground Freedom Fighters:-
Freedom Fighters of “Bharat Chodo” agitation during 1942-
44 or Hyderabad Liberation Movement during 1947-48 who worked
by remaining underground, will submit following certificate:-
(1) A certificate given type of difficulties and troubles of
all sorts undergone during the agitation.
(a) Living away from the house.
(b) Explained from the educational institute or leaving
education.
(c) Received beatings from police causing disabilities.
(2) A certificate to the effect that he was punished for
minimum of two years or declared and remained absconding
for minimum of two years from two Freedom Fighters of that
area along with true copies of their certificate to the
effect that of imprisonment or advertisement of declaration
of absconding or Government orders. Also an oath of the
certificate person will be attached.
(3) Certified copy of Government record of that time
showing remained underground, if available.
(4) Original copy of newspaper of that time published
giving information about having gone underground of the
applicant and name etc. if available.
(5) Recommendation and opinion of Zilla Gourav Samiti
giving specific information.”
These Government Orders were made applicable to all the pending cases.
Facts regarding Namdeo,Respondent No.1.
6. The respondent No.1 Shri Namdeo Sopan Dhavare had filed the Writ
Petition alleging that he had participated in the year 1947-48 Hyderabad
Liberation Movement as underground freedom fighter, working under the
leadership of freedom fighters Shri Hambirrao Krashnaji Chavan and Devidas
Kishanrao Joshi. As per him, he had actively participated as an
underground freedom fighter in the said movement and therefore he was
entitled to the benefits of “Freedom Fighter’s Scheme “ framed by the
State of Maharashtra (the appellant herein). He, thus, moved application
dated 25.8.1995 to the Collector, Osmanabad. Along with his application
he had annexed affidavits of three freedom fighters, namely (i) Rajaram
Limbaji Chadare, (ii) Hambirrao Krashnaji Chavan and (iii) Devidas
Kishanrao Joshi.
7. In these affidavits, the said three persons had stated that Shri
Namdeo Sopan Dhavare had personally participated in the freedom movement
under the leadership of Narsinghrao Balbhimrao Deshmukh, Uddhavrao Patil
and Manikrao Bhosale. He had attended the camp of underground freedom
fighters at Kagla, Panbhit Tq. Barshi and was also involved in decoity of
arms and armaments. He was involved in the intelligence work and on
account of his involvement in the freedom movement, he was required to be
away from his family.
8. The “Zilla Gourav Committee” (hereinafter referred to as the
“Committee”) constituted to scrutinize the scheme, considered the
application of the respondent No.1. Two Members recommended his name for
pension but the official Member, namely the Additional Collector appended
his dissenting note. The recommendation was sent to the Government. The
Government found that there was non-compliance with the scheme dated
4.7.1995 inasmuch as all the requisites stipulated therein for grant of
pension were not fulfilled. Accordingly, vide order dated 13th July 2009,
application of Namdeo Sopan Dhavare was rejected.
Facts of Bhagabai Shankar Malkunje, Respondent No.2
9. Respondent No.2 is the widow of Shankar Malkunje. She also moved a
similar application for grant of pension stating that her husband was a
freedom fighter who had participated in the freedom movement. Along with
this application, she had filed affidavits of Baswappa Pirappa Chingunde
and Hambirrao Krashnaji Chavan. In these affidavits, it was stated that
Shri Shankar Malkuje had participated as underground freedom fighter in
Hyderabad Liberation Movement. He had supplied arms and armaments at
Gholasgao-Wagdari camp and worked on the borders under the leadership of
Phulchand Gandhi and Swami Ramanand Tirth. It was also stated that late
Shri Shankar was also involved in the attack of Karodgiri (Kamgiri) Naka
of Nizam as well as in the collection of arms, food etc. In this behalf,
it was testified that since he was attending the underground camp at
Chinchola, he was required to leave his family and reside at Waghdari camp.
Here applicant was also recommended by the Committee with the dissent of
Additional Collector and the Government rejected the recommendation vide
order dated 20.8.2009. Facts of Navnath Dattatraya Hajgude,
Respondent No.3.
10. He filed application for grant of pension amount dated 13th
July 2006 with Collector, Osmanabad. He had also enclosed three
affidavits, namely his own affidavit and affidavits of Hambirrao Krashnaji
Chavan and Devidasrao Kishanrao Joshi who had deposed on the same line as
as was done in respect of the aforesaid two persons. His application was
also dealt with in identical manner, namely recommended by two members but
Additional Collector dissenting therewith. The Government rejected the
application vide order dated 30th October 2010.
11. From the facts noted above, it is clear that except affidavits of
certain persons, no other material or proof was given supporting the claim
of having participated in the freedom movement. However, the Scheme dated
4.7.95 required fulfillment of various conditions contained therein to
enable a person to claim the benefits. It was accepted even by the
committee that those conditions were not met by the respondents. It is for
this reason, in so far as the Additional Collector is concerned, he refused
to give positive recommendation. Notwithstanding the same, the other two
members of the Committee recommended the cases of the respondents only on
the ground that the persons who had given affidavits and supported the
claim of the respondents were themselves recipient of pension under the
said Scheme and therefore their version needed to be believed.
12. The orders vide which the applications of the respondents are
rejected are identically worded, pointing out that these respondents had
not submitted the following documents required under Government Order dated
4th July 1995:
“1 Proof of trouble of all sorts made to suffer for
participation in Freedom Fight.
(a) Made to live away from household.
(b) Expelled from educational institute or leaving education half
way.
(c) Suffered disability due to beating by police.
2. A certificate to the effect that he was punished for
minimum of two years or declared and remained absconding for
minimum of two years from two Freedom Fighters of that area
along with their true copies of their certificate to the effect
of imprisonment or advertisement of declaration of absconding
or Government orders. Also an oath of the certifying person
will be attached. The certificates given by the two Freedom
Fighters cannot be accepted as they have already given
certificates to more than 50 persons. As such the applicant
does not fulfill the requirements.
3. The Applicant has not submitted the certified copy of the
Government record of that time stating “remained underground”,
if available.
4. News published at that time showing “remained underground
with name” has not submitted.”
13. The High Court while allowing the petitions of the respondents had
done so on the premise that since the Committee had recommended the cases
of the respondents, the orders of rejection by the Government were not
valid. It would be pertinent to note here that the appellant had referred
to the judgment of this Court rendered in the case of State of Maharashtra
& Ors. Vs. Raghunath Gajanan Waingankar (2004) 6 SCC 584. However, as per
the High Court, the said judgment was not applicable in the instant cases.
14. As the main argument of the counsel for the appellant before us was
that the judgment in the case of Raghunath (supra) squarely applies, we
would like to discuss the said judgment in the first instance. In that
case also, the State of Maharashtra was the appellant. The matter
pertained to “Goa Freedom Fighters Pension” under this very scheme. The
respondent has claimed himself to be a freedom fighter entitled to such
recognition and release of pension and other privileges as per the same
Government Resolution dated 4.7.1995. He pleaded that he participated in
Goa Liberation Movement and therein he sustained bullet injuries on the
left shoulder. He had placed reliance on certificate from Goa Vimochan
Samiti and certain cuttings of newspaper reports. However, there was no
primary evidence to substantiate his claim. The State Government rejected
his request for grant of pension etc. and in the Writ Petition filed by
him, the High Court set aside the order of the Government and issued the
writ of Mandamus. It was noted that Zilla Gourav Samiti had processed his
case, like the cases of other freedom fighters, and held an enquiry
recommending the case for pension observing that the respondent had
produced solid evidence, incident wise, to the effect that he had
participated in the freedom fighters movement. However, these minutes were
signed by the Chairman only. The State had produced another Resolution of
the same committee dated 2.9.2002, which was signed by the Chairman as well
as all the members. Those minutes recorded that the respondent had not
been able to give any proof to substantiate his claim. This Court chose to
rely upon Minutes dated 2.9.2002 which were signed by all the persons as
they appeared to be more authentic as per which the Zilla Gourav Committee
has recommended rejection of the proposal.
15. On the aforesaid facts, no doubt, the facts in the case of Raghunath
(supra) were altogether different. In that case, the Court proceeded on
the premise that there was no recommendation of the Samiti at all, whereas
in the present case, Samiti has recommended the cases of the respondents;
albeit with a majority of 2:1 i.e. two members of the committee supported
the claim and the third member i.e. Additional Collector did not agree and
in his opinion claim should have been rejected. Having said so, we would
like to point out that the Court had also taken note of the earlier two
cases dealing with the standard of proof which is required to deal with the
claims of freedom fighters. This discussion is contained in paragraph 7 of
the judgment which is reproduced below:
“7. It is true that in Gurdial Singh case this Court has
emphasized the need for dealing with the claim of freedom
fighters with sympathy dispensing with the need for standard of
proof based on the test of “beyond reasonable doubt” and the
approach should be to uphold the entitlement by applying the
principle of probability so as to honour and to mitigate the
sufferings of the freedom fighters. However, the observations of
this Court in Mukund Lal Bhandari case cannot be lost sight of
and given a complete go-by wherein this Court has very clearly
directed that: (SCC pp.5-6, para 6)
“6. As regards the sufficiency of the proof, the Scheme
itself mentions the documents which are required to be produced
before the Government. It is not possible for this Court to
scrutinize the documents which according to the petitioners,
they had produced in support of their claim and pronounce upon
their genuineness. It is the function of the Government to do
so. We would, therefore, direct accordingly:
The High Court exercising writ jurisdiction does not sit
in judgment over the decision of the State Government like an
appellate authority. Ordinarily, the High Court exercising writ
jurisdiction cannot enter into reappreciation of evidence and
reverse the findings arrived at by the State Government unless
they be perverse or be such as no reasonable man acting
reasonably could have arrived at. If the High Court found that
the decision arrived at by the State Government was flawed in
any way then the High Court should have, after laying down the
necessary principles or guidelines or issuing directions,
directed the State Government to reconsider the case of the
respondent. In no case, the High Court could have in exercise of
its writ jurisdiction relaxed the need for full satisfaction of
the necessary requirements on the fulfillment of which alone the
respondent’s entitlement to the release of freedom fighter’s
pension depended.”
16. At this stage, we would like to refer to the judgment of this
Court in the case of Gurdial Singh vs. Union of India & Ors. (2001) 8 SCC
8. The laudable objective behind such scheme has been succinctly brought
out in the said judgment in the following words:
“The scheme was introduced with the object of providing grant of
pension to living freedom fighters and their families and to the
families of martyrs. It has to be kept in mind that millions of
masses of this country had participated in the freedom struggle
without any expectation of grant of any scheme at the relevant
time. It has also to be kept in mind that in the partition of the
country most of citizens who suffered imprisonment were
handicapped to get the relevant record from the jails where they
had suffered imprisonment. The problem of getting the record from
the foreign country is very cumbersome and expensive. Keeping in
mind the object of the scheme, the concerned authorities are
required that in appreciating the scheme for the benefit of
freedom fighters a rationale and not a technical approach is
required to be adopted. It has also to be kept in mind that the
claimants of the scheme are supposed to be such persons who had
given the best part of their life for the country. This Court in
Mukund Lal Bhandari’s case (supra) observed:
“The object in making the said relaxation was not to reward or
compensate the sacrifices made in the freedom struggle. The
object was to honour and where it was necessary, also to mitigate
the sufferings of those who had given their all for the country
in the hour of its need. In fact, many of those who do not have
sufficient income to maintain themselves refuse to take benefit
of it, since they consider it as an affront to the sense of
patriotism with which they plunged in the Freedom Struggle. The
spirit of the Scheme being both to assist and honour the needy
and acknowledge the valuable sacrifices made, it would be
contrary to its spirit to convert it into some kind of a
programme of compensation. Yet that may be the result if the
benefit is directed to be given retrospectively whatever the date
the application is made. The scheme should retain its high
objective with which it was motivated. It should not further be
forgotten that now its benefit is made available irrespective of
the income limit. Secondly, and this is equally important to
note, since we are by this decision making the benefit of the
scheme available irrespective of the date on which the
application is made, it would not be advisable to extend the
benefit retrospectively. Lastly, the pension under the present
scheme is not the only benefit made available to the freedom
fighters or their dependents. The preference in employment,
allotment of accommodation and in admission to schools and
colleges of their kith and kin etc. are also the other benefits
which have been made available to them for quite sometimes now.”
17. In paragraph 7 of the judgment, this Court has highlighted the manner
in which such claims are to be considered for grant of Freedom Fighters’
Pension. Paragraph 7 reads as under:
“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.”
18. In a recent judgment in the case of Kamalbai Sinkar vs. State
of Maharashtra & Ors. 2012 (6) SCALE 15, the Court granted the pension
following the aforesaid dicta in Gurdial Singh case (supra).
19. The aforementioned discussion leads us to sum up the legal position
as under:-
(a) The claims of the freedom fighters are to be dealt with,
with sympathy.
(b) The authorities are not to go by the test of “beyond
reasonable doubt” and standard of proof based on this principle has to be
discarded.
(c) On the contrary, the principle of probability is to be
applied and eschewing the technicalities, the approach should be to uphold
the entitlement.
(d) When scheme itself mentions the documents which are
required to be produced by the applicant, normally those documents need to
be produced to prove the claim.
(e) The High Court exercising writ jurisdiction does not sit in
judgment over the decision of the State Government like an appellate
authority. The order of the State Government is to be examined applying
the parameters of judicial review which are available in examining the
validity of such orders.
(f) Even if order is found to be perverse or flawed, the High
Court can, at the most, remit back to the State Government to reconsider
the case. However,
this Court has also observed that there may be cases where because of long
lapse of time or other circumstances beyond the control of the applicant,
it is almost impossible or cumbersome to procure and produce all the
stipulated documents. In such cases, the claim cannot be summarily
rejected for want of documents, even though as per the Pension Scheme, such
documents are to be provided. We are of the opinion that to meet such
eventualities, following principle needs to be added:
(g) On the basis of evidence/documents/material submitted by
the applicant, the Government should examine whether it is a genuine case
and the documents produced establish that the applicant had participated in
the freedom movement. It should be done applying the principle of
probability. If the material/documents produced are otherwise convincing,
the Government in appropriate cases may not insist on strict compliance
with all the requirements stated in the Scheme.
20. These principles show a clear path as to how the claims under
the Freedom Fighters Scheme are to be examined.
21. In the present case, as already noted above, except the affidavits of
the two freedom fighters, no other material is placed to substantiate the
claims. Approach of the High Court accepting the version of the
respondents merely on affidavits, ignoring the requirements of the Scheme
altogether, is fraught with dangers and would be prove to misuse and abuse.
We can appreciate that direct evidence of having participated in the
freedom movement, which events occurred almost 70 years ago, may not be
available and therefore it should not be deemed that this Court is
insisting on such direct evidence in order to enable an applicant to
succeed in his claim. At the same time, the Government Resolution dated
4.7.1995 enlists the documents, on the production of whereof, the
respondents could substantiate their participation and involvement in the
freedom movement. In a given case, if there is some cogent material on the
basis of which satisfaction can be arrived at about the participation in
the agitation, the Government may relax the other requirements. However,
it would be for the State Government to exercise such a discretion, in a
given case, if it is otherwise fully satisfied that the material produced
demonstrate that the applicant is a freedom fighter.
22. In the present case, the Government rejected the claim by
passing speaking order to the effect that certain documents required under
Government Order dated 4.7.1995 had not been furnished.
Once, the claim is
rejected on these grounds and such an order is in consonance with the
requirement of Scheme dated 4.7.1995, no fault can be found with such an
order particularly when no case for dispensation of these requirements was
made out by the respondents. The claims were based only on the affidavits
with no other material. We are of the opinion that if claims are allowed
merely on such affidavits, that would amount to giving a complete go by to
the requirements of the Scheme. This cannot be allowed. We are,
therefore, of the opinion that High Court could not have invalidated the
orders of the Government.
23. Before we part with the judgment, we would like to record and deal
with the submission of the leaned counsel for the respondents to the effect
that it was not possible for the respondents to get the original record
which was a cumbersome process.
The learned counsel relied upon Kamalbai
Sinkar. vs. State of Maharashtra & Ors. (supra). However, a reading of the
said judgment very clearly demonstrate that in that case the applicant had
produced a certificate which was issued by the Office of Nayak Tehsildar,
M.K.Puranil dated 5.8.1961 in favour of the freedom fighter Shankar
Pandurang Choudhary (deceased respondent of the appellant) about the
imprisonments suffered by him. Another document which was produced was
medical certificate dated 15.8.1991 issued by Dr. S.G.Choudhari in favour
of the applicant in his favour about his participation in Satyagraha Morcha
on 13.8.1942, the injuries suffered by him in the Lathi Charge and the
treatment given to him between 13.8.1942 to 15.8.1942. It is on these
documents, the claim was held to be justified by this Court.
In the
present case, it is stated at the cost of the repetition that apart from
the affidavits of other freedom fighters, no other document is produced.
24. We, thus, allow these appeals and set aside the orders of the High
Court and dismiss the Writ Petitions filed by the respondents. No costs.
…………………………J.
(K.S.Radhakrishnan)
………………………..J.
(A.K.Sikri)
New Delhi,
9th September, 2013
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 7899-7901/2013
(arising out of S.L.P.(Civil) Nos.26441-26443 of 2012)
State of Maharashtra & Ors. ……….Appellants
Vs.
Namdeo etc.etc. ………Respondents
J U D G M E N T
A.K.SIKRI,J.
1. Leave granted.
2. The three respondents herein were the original petitioners who had
filed three separate Writ Petitions in their individual capacities. In
these Writ Petitions, the petitioners claimed that they took part in the
freedom movement and were, therefore, entitled to the benefits which the Government has announced with the proclamation of the “Freedom Fighters Pension Scheme”.
Having regard to the fact that all the claims were on
similar set of facts, the Bench High Court of Judicature at Bombay
consolidated those three petitions and after hearing, has allowed all by
single judgment dated 10.2.2012 with the following directions:
“(i) The impugned orders passed by the State Government, thereby
rejecting claims of the petitioners for freedom fighter’s
pension, are quashed and set aside. It is held that the
petitioners are entitled to freedom fighter’s pension, under the
Scheme framed by the State of Maharashtra, from the date of their
first application.
(ii) The respondent-State and its concerned authorities are
directed to pay freedom fighter’s pension to the petitioners,
from the date of their first application. They shall start
payment of said pension to the petitioners, within a period of
three months from today. The arrears of pension, from the dates
of their first application till realization of pension, shall be
paid to the petitioners within a period of six months from
today.”
3. As the appellant/State of Maharashtra is aggrieved by this judgment,
instant special leave petitions are filed. Along with State of
Maharashtra, others who have joined are the officers in the State
Government who were arrayed as respondents in the Writ Petitions. Notice
in these petitions was issued pursuant to which respondents entered
appearance through their counsel. We heard counsel for both the parties at
length.
4. In order to appreciate the controversy as well as propriety/validity
of the orders passed by the High Court, it would be necessary to take note
of the foundational basis of the claim for pension by the respondents.
5. The State of Maharashtra came out with Pension Scheme for “Underground
Freedom Fighters” and Participants of the “Hyderabad Liberation Movement”
in the year 1982 and 1992 respectively. Thereafter, another specific
scheme dated 4.7.1995 was framed known as “Freedom Fighters Pension Scheme”
which was issued vide Government Resolution of even date. As per this, the
benefits were extended to freedom fighters of different categories
stipulated therein, one of which was “Underground Freedom Fighters”. Since
the respondents had made the claim under this category, we reproduce
hereinbelow the said portion of the Government Order dated 4th July 1995:
“Underground Freedom Fighters:-
Freedom Fighters of “Bharat Chodo” agitation during 1942-
44 or Hyderabad Liberation Movement during 1947-48 who worked
by remaining underground, will submit following certificate:-
(1) A certificate given type of difficulties and troubles of
all sorts undergone during the agitation.
(a) Living away from the house.
(b) Explained from the educational institute or leaving
education.
(c) Received beatings from police causing disabilities.
(2) A certificate to the effect that he was punished for
minimum of two years or declared and remained absconding
for minimum of two years from two Freedom Fighters of that
area along with true copies of their certificate to the
effect that of imprisonment or advertisement of declaration
of absconding or Government orders. Also an oath of the
certificate person will be attached.
(3) Certified copy of Government record of that time
showing remained underground, if available.
(4) Original copy of newspaper of that time published
giving information about having gone underground of the
applicant and name etc. if available.
(5) Recommendation and opinion of Zilla Gourav Samiti
giving specific information.”
These Government Orders were made applicable to all the pending cases.
Facts regarding Namdeo,Respondent No.1.
6. The respondent No.1 Shri Namdeo Sopan Dhavare had filed the Writ
Petition alleging that he had participated in the year 1947-48 Hyderabad
Liberation Movement as underground freedom fighter, working under the
leadership of freedom fighters Shri Hambirrao Krashnaji Chavan and Devidas
Kishanrao Joshi. As per him, he had actively participated as an
underground freedom fighter in the said movement and therefore he was
entitled to the benefits of “Freedom Fighter’s Scheme “ framed by the
State of Maharashtra (the appellant herein). He, thus, moved application
dated 25.8.1995 to the Collector, Osmanabad. Along with his application
he had annexed affidavits of three freedom fighters, namely (i) Rajaram
Limbaji Chadare, (ii) Hambirrao Krashnaji Chavan and (iii) Devidas
Kishanrao Joshi.
7. In these affidavits, the said three persons had stated that Shri
Namdeo Sopan Dhavare had personally participated in the freedom movement
under the leadership of Narsinghrao Balbhimrao Deshmukh, Uddhavrao Patil
and Manikrao Bhosale. He had attended the camp of underground freedom
fighters at Kagla, Panbhit Tq. Barshi and was also involved in decoity of
arms and armaments. He was involved in the intelligence work and on
account of his involvement in the freedom movement, he was required to be
away from his family.
8. The “Zilla Gourav Committee” (hereinafter referred to as the
“Committee”) constituted to scrutinize the scheme, considered the
application of the respondent No.1. Two Members recommended his name for
pension but the official Member, namely the Additional Collector appended
his dissenting note. The recommendation was sent to the Government. The
Government found that there was non-compliance with the scheme dated
4.7.1995 inasmuch as all the requisites stipulated therein for grant of
pension were not fulfilled. Accordingly, vide order dated 13th July 2009,
application of Namdeo Sopan Dhavare was rejected.
Facts of Bhagabai Shankar Malkunje, Respondent No.2
9. Respondent No.2 is the widow of Shankar Malkunje. She also moved a
similar application for grant of pension stating that her husband was a
freedom fighter who had participated in the freedom movement. Along with
this application, she had filed affidavits of Baswappa Pirappa Chingunde
and Hambirrao Krashnaji Chavan. In these affidavits, it was stated that
Shri Shankar Malkuje had participated as underground freedom fighter in
Hyderabad Liberation Movement. He had supplied arms and armaments at
Gholasgao-Wagdari camp and worked on the borders under the leadership of
Phulchand Gandhi and Swami Ramanand Tirth. It was also stated that late
Shri Shankar was also involved in the attack of Karodgiri (Kamgiri) Naka
of Nizam as well as in the collection of arms, food etc. In this behalf,
it was testified that since he was attending the underground camp at
Chinchola, he was required to leave his family and reside at Waghdari camp.
Here applicant was also recommended by the Committee with the dissent of
Additional Collector and the Government rejected the recommendation vide
order dated 20.8.2009. Facts of Navnath Dattatraya Hajgude,
Respondent No.3.
10. He filed application for grant of pension amount dated 13th
July 2006 with Collector, Osmanabad. He had also enclosed three
affidavits, namely his own affidavit and affidavits of Hambirrao Krashnaji
Chavan and Devidasrao Kishanrao Joshi who had deposed on the same line as
as was done in respect of the aforesaid two persons. His application was
also dealt with in identical manner, namely recommended by two members but
Additional Collector dissenting therewith. The Government rejected the
application vide order dated 30th October 2010.
11. From the facts noted above, it is clear that except affidavits of
certain persons, no other material or proof was given supporting the claim
of having participated in the freedom movement. However, the Scheme dated
4.7.95 required fulfillment of various conditions contained therein to
enable a person to claim the benefits. It was accepted even by the
committee that those conditions were not met by the respondents. It is for
this reason, in so far as the Additional Collector is concerned, he refused
to give positive recommendation. Notwithstanding the same, the other two
members of the Committee recommended the cases of the respondents only on
the ground that the persons who had given affidavits and supported the
claim of the respondents were themselves recipient of pension under the
said Scheme and therefore their version needed to be believed.
12. The orders vide which the applications of the respondents are
rejected are identically worded, pointing out that these respondents had
not submitted the following documents required under Government Order dated
4th July 1995:
“1 Proof of trouble of all sorts made to suffer for
participation in Freedom Fight.
(a) Made to live away from household.
(b) Expelled from educational institute or leaving education half
way.
(c) Suffered disability due to beating by police.
2. A certificate to the effect that he was punished for
minimum of two years or declared and remained absconding for
minimum of two years from two Freedom Fighters of that area
along with their true copies of their certificate to the effect
of imprisonment or advertisement of declaration of absconding
or Government orders. Also an oath of the certifying person
will be attached. The certificates given by the two Freedom
Fighters cannot be accepted as they have already given
certificates to more than 50 persons. As such the applicant
does not fulfill the requirements.
3. The Applicant has not submitted the certified copy of the
Government record of that time stating “remained underground”,
if available.
4. News published at that time showing “remained underground
with name” has not submitted.”
13. The High Court while allowing the petitions of the respondents had
done so on the premise that since the Committee had recommended the cases
of the respondents, the orders of rejection by the Government were not
valid. It would be pertinent to note here that the appellant had referred
to the judgment of this Court rendered in the case of State of Maharashtra
& Ors. Vs. Raghunath Gajanan Waingankar (2004) 6 SCC 584. However, as per
the High Court, the said judgment was not applicable in the instant cases.
14. As the main argument of the counsel for the appellant before us was
that the judgment in the case of Raghunath (supra) squarely applies, we
would like to discuss the said judgment in the first instance. In that
case also, the State of Maharashtra was the appellant. The matter
pertained to “Goa Freedom Fighters Pension” under this very scheme. The
respondent has claimed himself to be a freedom fighter entitled to such
recognition and release of pension and other privileges as per the same
Government Resolution dated 4.7.1995. He pleaded that he participated in
Goa Liberation Movement and therein he sustained bullet injuries on the
left shoulder. He had placed reliance on certificate from Goa Vimochan
Samiti and certain cuttings of newspaper reports. However, there was no
primary evidence to substantiate his claim. The State Government rejected
his request for grant of pension etc. and in the Writ Petition filed by
him, the High Court set aside the order of the Government and issued the
writ of Mandamus. It was noted that Zilla Gourav Samiti had processed his
case, like the cases of other freedom fighters, and held an enquiry
recommending the case for pension observing that the respondent had
produced solid evidence, incident wise, to the effect that he had
participated in the freedom fighters movement. However, these minutes were
signed by the Chairman only. The State had produced another Resolution of
the same committee dated 2.9.2002, which was signed by the Chairman as well
as all the members. Those minutes recorded that the respondent had not
been able to give any proof to substantiate his claim. This Court chose to
rely upon Minutes dated 2.9.2002 which were signed by all the persons as
they appeared to be more authentic as per which the Zilla Gourav Committee
has recommended rejection of the proposal.
15. On the aforesaid facts, no doubt, the facts in the case of Raghunath
(supra) were altogether different. In that case, the Court proceeded on
the premise that there was no recommendation of the Samiti at all, whereas
in the present case, Samiti has recommended the cases of the respondents;
albeit with a majority of 2:1 i.e. two members of the committee supported
the claim and the third member i.e. Additional Collector did not agree and
in his opinion claim should have been rejected. Having said so, we would
like to point out that the Court had also taken note of the earlier two
cases dealing with the standard of proof which is required to deal with the
claims of freedom fighters. This discussion is contained in paragraph 7 of
the judgment which is reproduced below:
“7. It is true that in Gurdial Singh case this Court has
emphasized the need for dealing with the claim of freedom
fighters with sympathy dispensing with the need for standard of
proof based on the test of “beyond reasonable doubt” and the
approach should be to uphold the entitlement by applying the
principle of probability so as to honour and to mitigate the
sufferings of the freedom fighters. However, the observations of
this Court in Mukund Lal Bhandari case cannot be lost sight of
and given a complete go-by wherein this Court has very clearly
directed that: (SCC pp.5-6, para 6)
“6. As regards the sufficiency of the proof, the Scheme
itself mentions the documents which are required to be produced
before the Government. It is not possible for this Court to
scrutinize the documents which according to the petitioners,
they had produced in support of their claim and pronounce upon
their genuineness. It is the function of the Government to do
so. We would, therefore, direct accordingly:
The High Court exercising writ jurisdiction does not sit
in judgment over the decision of the State Government like an
appellate authority. Ordinarily, the High Court exercising writ
jurisdiction cannot enter into reappreciation of evidence and
reverse the findings arrived at by the State Government unless
they be perverse or be such as no reasonable man acting
reasonably could have arrived at. If the High Court found that
the decision arrived at by the State Government was flawed in
any way then the High Court should have, after laying down the
necessary principles or guidelines or issuing directions,
directed the State Government to reconsider the case of the
respondent. In no case, the High Court could have in exercise of
its writ jurisdiction relaxed the need for full satisfaction of
the necessary requirements on the fulfillment of which alone the
respondent’s entitlement to the release of freedom fighter’s
pension depended.”
16. At this stage, we would like to refer to the judgment of this
Court in the case of Gurdial Singh vs. Union of India & Ors. (2001) 8 SCC
8. The laudable objective behind such scheme has been succinctly brought
out in the said judgment in the following words:
“The scheme was introduced with the object of providing grant of
pension to living freedom fighters and their families and to the
families of martyrs. It has to be kept in mind that millions of
masses of this country had participated in the freedom struggle
without any expectation of grant of any scheme at the relevant
time. It has also to be kept in mind that in the partition of the
country most of citizens who suffered imprisonment were
handicapped to get the relevant record from the jails where they
had suffered imprisonment. The problem of getting the record from
the foreign country is very cumbersome and expensive. Keeping in
mind the object of the scheme, the concerned authorities are
required that in appreciating the scheme for the benefit of
freedom fighters a rationale and not a technical approach is
required to be adopted. It has also to be kept in mind that the
claimants of the scheme are supposed to be such persons who had
given the best part of their life for the country. This Court in
Mukund Lal Bhandari’s case (supra) observed:
“The object in making the said relaxation was not to reward or
compensate the sacrifices made in the freedom struggle. The
object was to honour and where it was necessary, also to mitigate
the sufferings of those who had given their all for the country
in the hour of its need. In fact, many of those who do not have
sufficient income to maintain themselves refuse to take benefit
of it, since they consider it as an affront to the sense of
patriotism with which they plunged in the Freedom Struggle. The
spirit of the Scheme being both to assist and honour the needy
and acknowledge the valuable sacrifices made, it would be
contrary to its spirit to convert it into some kind of a
programme of compensation. Yet that may be the result if the
benefit is directed to be given retrospectively whatever the date
the application is made. The scheme should retain its high
objective with which it was motivated. It should not further be
forgotten that now its benefit is made available irrespective of
the income limit. Secondly, and this is equally important to
note, since we are by this decision making the benefit of the
scheme available irrespective of the date on which the
application is made, it would not be advisable to extend the
benefit retrospectively. Lastly, the pension under the present
scheme is not the only benefit made available to the freedom
fighters or their dependents. The preference in employment,
allotment of accommodation and in admission to schools and
colleges of their kith and kin etc. are also the other benefits
which have been made available to them for quite sometimes now.”
17. In paragraph 7 of the judgment, this Court has highlighted the manner
in which such claims are to be considered for grant of Freedom Fighters’
Pension. Paragraph 7 reads as under:
“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.”
18. In a recent judgment in the case of Kamalbai Sinkar vs. State
of Maharashtra & Ors. 2012 (6) SCALE 15, the Court granted the pension
following the aforesaid dicta in Gurdial Singh case (supra).
19. The aforementioned discussion leads us to sum up the legal position
as under:-
(a) The claims of the freedom fighters are to be dealt with,
with sympathy.
(b) The authorities are not to go by the test of “beyond
reasonable doubt” and standard of proof based on this principle has to be
discarded.
(c) On the contrary, the principle of probability is to be
applied and eschewing the technicalities, the approach should be to uphold
the entitlement.
(d) When scheme itself mentions the documents which are
required to be produced by the applicant, normally those documents need to
be produced to prove the claim.
(e) The High Court exercising writ jurisdiction does not sit in
judgment over the decision of the State Government like an appellate
authority. The order of the State Government is to be examined applying
the parameters of judicial review which are available in examining the
validity of such orders.
(f) Even if order is found to be perverse or flawed, the High
Court can, at the most, remit back to the State Government to reconsider
the case. However,
this Court has also observed that there may be cases where because of long
lapse of time or other circumstances beyond the control of the applicant,
it is almost impossible or cumbersome to procure and produce all the
stipulated documents. In such cases, the claim cannot be summarily
rejected for want of documents, even though as per the Pension Scheme, such
documents are to be provided. We are of the opinion that to meet such
eventualities, following principle needs to be added:
(g) On the basis of evidence/documents/material submitted by
the applicant, the Government should examine whether it is a genuine case
and the documents produced establish that the applicant had participated in
the freedom movement. It should be done applying the principle of
probability. If the material/documents produced are otherwise convincing,
the Government in appropriate cases may not insist on strict compliance
with all the requirements stated in the Scheme.
20. These principles show a clear path as to how the claims under
the Freedom Fighters Scheme are to be examined.
21. In the present case, as already noted above, except the affidavits of
the two freedom fighters, no other material is placed to substantiate the
claims. Approach of the High Court accepting the version of the
respondents merely on affidavits, ignoring the requirements of the Scheme
altogether, is fraught with dangers and would be prove to misuse and abuse.
We can appreciate that direct evidence of having participated in the
freedom movement, which events occurred almost 70 years ago, may not be
available and therefore it should not be deemed that this Court is
insisting on such direct evidence in order to enable an applicant to
succeed in his claim. At the same time, the Government Resolution dated
4.7.1995 enlists the documents, on the production of whereof, the
respondents could substantiate their participation and involvement in the
freedom movement. In a given case, if there is some cogent material on the
basis of which satisfaction can be arrived at about the participation in
the agitation, the Government may relax the other requirements. However,
it would be for the State Government to exercise such a discretion, in a
given case, if it is otherwise fully satisfied that the material produced
demonstrate that the applicant is a freedom fighter.
22. In the present case, the Government rejected the claim by
passing speaking order to the effect that certain documents required under
Government Order dated 4.7.1995 had not been furnished.
Once, the claim is
rejected on these grounds and such an order is in consonance with the
requirement of Scheme dated 4.7.1995, no fault can be found with such an
order particularly when no case for dispensation of these requirements was
made out by the respondents. The claims were based only on the affidavits
with no other material. We are of the opinion that if claims are allowed
merely on such affidavits, that would amount to giving a complete go by to
the requirements of the Scheme. This cannot be allowed. We are,
therefore, of the opinion that High Court could not have invalidated the
orders of the Government.
23. Before we part with the judgment, we would like to record and deal
with the submission of the leaned counsel for the respondents to the effect
that it was not possible for the respondents to get the original record
which was a cumbersome process.
The learned counsel relied upon Kamalbai
Sinkar. vs. State of Maharashtra & Ors. (supra). However, a reading of the
said judgment very clearly demonstrate that in that case the applicant had
produced a certificate which was issued by the Office of Nayak Tehsildar,
M.K.Puranil dated 5.8.1961 in favour of the freedom fighter Shankar
Pandurang Choudhary (deceased respondent of the appellant) about the
imprisonments suffered by him. Another document which was produced was
medical certificate dated 15.8.1991 issued by Dr. S.G.Choudhari in favour
of the applicant in his favour about his participation in Satyagraha Morcha
on 13.8.1942, the injuries suffered by him in the Lathi Charge and the
treatment given to him between 13.8.1942 to 15.8.1942. It is on these
documents, the claim was held to be justified by this Court.
In the
present case, it is stated at the cost of the repetition that apart from
the affidavits of other freedom fighters, no other document is produced.
24. We, thus, allow these appeals and set aside the orders of the High
Court and dismiss the Writ Petitions filed by the respondents. No costs.
…………………………J.
(K.S.Radhakrishnan)
………………………..J.
(A.K.Sikri)
New Delhi,
9th September, 2013
