GOVERNMENT OE INDIA REPRESENTED BY THE SECRETARYversusK.V. SWAMINATHAN

              GOVERNMENT OE INDIA REPRESENTED                               A
                     BY THE SECRETARY
                             v.
                     K.V. SWAMINATHAN

                          NOVEMBER 18, 1996
                                                                            B
             [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

        Pension:

     Freedom fighter-Claim for pension-Granted on the basis of benefit      C
of doubt-Claim from the date of application-Held, not sustainable-
Claimant entitled to pension only from the date of order and not from the
date of application-Amount released by order of High Court would be
deducted proportionately from the amount payable in every month.

     Union of India v. MR. Chel/iah Thevar CA No. 7762 of 1996              D
decided on 30.4.1996, relied on.

     Union of India v. Ganesh Chandra Dolai and Ors., [19971 10 SCC
289; Mukund Lal Bhandari and Ors. v. Union of India and Ors., J1993J
Supp. 3 SCC 3; Amarnath Malhotra and Ors. v. UOI, decided on
19.10.1994, cited.                                                   E

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 15077 of
1996.

     From the Judgment and Order dated 14.3.95 of the Madras High
Court in W.P. No. 15732 of 1994.                                            F

        Heman! Sharma and P. Parmeshwaran for the Appellant.

        Dr. A. Francis Julian and A. Mariarputham for the Respondent.
                                                                            G
        The following Order of the Court was delivered :

        Leave granted.

     This appeal by special leave arises from the judgment of the Madras
High Court made on 14.3.1995 in W.P. No. 15732/94. The respondent           H
                                  737
    738                    SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A claimed the benefit as freedom-fighter but the same remained pending for
    a long time. Ultimately, giving the benefit of doubt to the respondent, he
    was granted pension on 18.11.1989. Not feeling satisfied with the relief,
    the respondent filed writ petition claiming the pension from the date of
    his application. Jn the impugned order, the High Court has directed to pay
    the pension from the date of the application. The controversy is no longer
B   res integra. This Court had considered the entire controversy in Union of
    India v. MR. Chelliah Thevar C.A. No. 7762/96 decided on April 30, 1996
    and held thus:

                 "Heard counsel for both sides. On behalf of the union of
                 India strong reliance was placed on the decision of the
c                Division Bench of this Court dated 24th April, 1995. On the
                 other hand, learned counsel for the respondent placed reliance
                 on an earlier judgment of this court in Mukund Lal Bhandari
                 and Ors. v. Union of India and Ors., 1993 Supp. (3) 2, as
                 well as the decision in Amarnath Malhotra and Ors. v. Union
                 of India dated 19th October, 1994. The distinction, however,
D                is that in the case relied on by the Union of lnida, the
                 respondents were granted the benefit under the policy not
                 because it was a clear case of the respondents being freedom
                 fighters but because benefit of doubt was given and hence
                 the pension was restricted from the date of the order and not
                 the date of application. Jn the two cases relied on by the
E                respondents, there was no question of the benefit having been
                  founded on a finding of fact which did not clearly establish
                 that the petitioners were freedom fighters but on the liberal
                  ground of giving them the benefit of doubt and restricting it
                  from the date of order. We are therefore of the opinion that
                 there is a distinction between the decision relied on by, the
F                 learned Additional Solicitor General on behalfof the Union
                  of India and two decisions r.elied on by the respondent. In
                  the instant case, since the benefit of doubt was given and the
                  status of freedom fighter was recognised on that basis, the
                  case would be covered by the first mentioned decision dated
                  24th April, 1995 (Union of India v. Ganesh Chandra Dolai
G
                  and Ors.)"

          In view of the above settled legal position, though the respondent
    was not entitled to the pension as a freedom-fighter, he was given the
    relief on the basis of ~enefit of doubt. Therefore, he is entitled to the
H   pension only from the date of the order and not from the date of the
               GOVT.OFIND!Av. K.V. SWAMINATHAN                      739

application. We are informed that pursuant to the order of the High Court, A
the amount has been released. Under this circumstance, the appellant is
directed to deduct the paid amount proportionately from the amount payable
in every month, instead of asking him to refund the amount.

       The appeal is accordingly allowed. No costs.
                                                                          B
R.P.                                                   Appeal allowed.