JAGDAMBA DEVIversusUNION OF INDIA AND ORS.

                         [2017)1S.C.R.481



                         JAGDAMBA DEVI                                    A
                                  v.
                   UNION OF INDIA AND ORS.
                   (Civil Appeal No. 12~0 of2017)
                         JANUARY 31, 2017                                 B

          [DIPAK MISRA AND R. BANUMATHI, JJ.]
Freedom Fighter:
      Swatantrata Sainik Samman Pension ·Scheme, 1980 -
Dependent family pension - Benefit under the Scheme - Freedo111           c
fighter, accused and arrested in a cri111inal case e111anating jro111
freedom struggle 111ove111ent - Claim of pension by widow -
Eligibility-Held: Freedom fighter did not meet the eligibility criteria
of either being an undergroul}d within the meaning of the Scheme
for more than six months or undergoing .sentence for more than six
                                                                          D
111onths and as such he was ineligible - Being 'underground' is not
synonymous to being as 'absconder' - Further, there were
discrepancies and ambiguities relating to the documents and also
due to 11011-production of Non-Availability of Re~ord Certificate,
benefit of the Scheme could not be extended to the widow - High
Court rightly held that the Central Government was well with.hi its       E
power to hold that the freedom fighter was ineligible to seek pension
under the Scheme - Thus, the impugned order does not call for
interference.
     Dismissing the appeal, the Court
      HELD: 1.1 Based on the verification of the documents, in            F
its order dated 15.11.2006, the Central Government stated that
the jail suffering of 'HK' was only for thirteen days whereas the
minimum jail suffering required to become eligible for pension is
six months. There was neither any document nor any report that
'HK' was absconding for more than six months. That being                  G
"11ndergro11nd" is not synonymous to being an "absconder". [Para
12] (488-B-C]
      1.2 As per Swatantratt1 S(linik Sanmum Pension Scheme, 1980,
the claim of "U111lergrou111lSuffering" is considered subject to
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                                 481
482           SUPREME COURT REPORTS                      [2017) 1 S.C.R.



A     furnishing of the stated evidence. Where primary evidence viz.
      records of the relevant period are not available, 'Non-Availability
      of Record Certificate (NARC)' from the concerned authority, in
      the form of secondary evidence becomes a pre-requisite for
      claiming "underground suffering". The instructions require the
      State Government to issue NARC only after due verification from
B     the concerned sources. In the case of appellant, Central
      Government stated _that the appellant did not produce any
      acceptable record-based evidence duly verified by the State
      Government to establish the claimed '/ail' or 'underground
      sufferings' of 'HK'. She also did not produce NARC from the
c     competent authority as required and that thus, the eligibility
      criteria was not met. {Para 13) [488-C-D, G-H; 489-A)
            1.3 That Swatantrata Sainik Samman Pension Scl1eme, 1980
      is a document based Scheme and the documents required for
      eligibility for Samman Pension as mentioned in the Scheme are
D     to be produced by the applicant in support of his claimed suffering,
      duly verified and recommended by the concerned State
      Government. Due to the discrepancies and ambiguities relating
      to the documents and also due to non-production of NARC,
      benefit of the Scheme could not be extended to the appellant. It
      is not possible for this Court to scrutinize the documents as to
 E    its sufficiency or otherwise. [Para 16) [490-D-E)
            State of Maharashtra and Ors. v. Ragh11nath Gajanan
            Waingankar (2004) 6 SCC 584 : [2004) 3 Suppl.
            SCR 365 - relied on.

 F          1.4 In C.W.J.C. No.9903 of 2001, the Single Judge made
      certain observations to the effect that 'HK' was absconding" and
      that tbe same was sufficient under the provisions of the Scheme
      to declare him "as remaining underground for more tfran six
      months", thereby making him entitled for the pension. As rightly
      observed by the Division Bench of the High Court, the said
 G    observation in C.W.J.C. No.9903 of 2001 was without reference
      to the Scheme. In C.W.J.C. No.9903 of 2001, the Single Judge
      only remanded the matter to the Central Government for
      reconsideration, giving liberty to the Central Government to
      reappraise the documents. Upon reappraisal of the matter, the
 H    Central Government clearly pointed out that 'HK' did not meet
        JAGDAMBA DEVI v. UNION OF INDIA AND ORS.                            483


the eligibility criteria of either being an underground within the          A
meaning of the Scheme for more than six months or undergoing
sentence for more than six months and as such be was ineligible.
The High Court rightly held that the Central Government was
well within its power to bold that 'HK' was ineligible to seek
pension under the Pension Scheme, 1980. There is no reason
                                                                            B
warranting interference with.the impugned order. (Para 17) (490-
F-H; 491-AJ
        Gurdial Singh v. Union of India and Ors. (2001) 8 SCC
        8 : (2001) 3 Suppl. SCR 323 - referred to.
                       Case Law Reference                                   c
120011. 3 Suppl. SCR 323        referred to              Para6
120041 3 Suppl. SCR 365         relied on                Para 15
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1260 of
2017.
                                                                            D
      From the Judgment and Order dated 01.04.2015 of the High Court
of Judicature at Patna in L.P.A. No. 1348 of2012.
      Amit Sharma, Parijat Kishore, Dipesh Sinha, Advs. for the
Appellant.
      Maninder Singh, ASG, Ms. Ruksana Choudhury, Raj iv Nanda (For          E
Ms. Sushma Suri), Rudreshwar Singh, Samir Ali Khan, Advs. for the
Respondents.
     ·The Judgment of the Court was delivered by
        R. JJANUMATHI, J. I. Leave granted.
      2. The present appeal by way of special leave impugns the final        F
judgment and order dated 01.04.2015 passed by the High Court of
Judicature at Patna in LPA No.1348 of2012 whereby the High Court
allowed the LPA No.1348 of2012 filed by the respondents herein and
thereby declined appellant's claim of dependent family pension under
Swatantrata Sainik Sammon Pension Scheme, 1980.
                                                                             a
     3. Briefly stated, the facts of the present case are as follows: The
appellant is the widow ofone Late Hari Kant Jha who had been accused
and arrested in a criminal case emanating from freedom struggle
movement of9., August, 1942. The deceased took part in the freedom '
struggle and allegedly remained absconding in this context from ·
484            ·SUPREME COURT REPORTS                          [2017] 1 S.C.R.


A      16.08.~942 to-14.10.1944, The deceased was arrested on 14.10.1944
      and remained in jail till he was released on bail on 27. I 0.1944 .. He was
      thereafter discharged from the case on 25.01.1945. Late Hari Kant Jha
      filed an application seeking pension under S11;atantrata Sainik Samman
      Pension Scheme; 1980 ("the Scheme"), which was subsequently
      pursued by his wife that is the appellant herein. The State Government
B
      vide letter dated 06.04.1993 recommended for sanction of Freedom
      Fighter Honour Pension to the appellant. It was however, noted in the
      recommendation letter as well as the jail certificate produced by the
      appellant that Hari Kant Jha was detained in jail for thirteen days only.
      Declining the State Government's rec'omme.ndation; the Central
c     Government vide order dated 26.07.2000 rejected the appellant's claim
      on the ground that the statutory mandate of serving minimum six months
      in detention was not fulfilled in the case of the deceased. ·
             4. The Central Government's -~rder dated 26.07 .2000 was assailed
      by the appellant in C.W.J .C.No.9903 of200 I filed before the High Court.
D     The Single Judge allowed the writ petition vide judgment dated 25.08.2006,
      holding that the period for which Hari Kant Jha remained in jail is quite
      insignificant in the light of the fact that he remained underground for a
      period of around two years, which is sufficient for making the deceased
      entitled for compensation under the Act and directed the concerned
      autho~ity to pass a fresh order. in accordance with law considering the
E
      aforesaid documents. The Central Government once again rejected the
      application of the appellant by order dated 15.11.2006, on the ground
      that the appellant did not produce any satisfactory primary or secondary
      evidence.                   ..                                    ·
            5. Challenging the order dated 15.11.2006, the appellant filed
F     C.W.J.C. No.816 of2008. The Single Judge vide judgment and order
      dated 11.01.2011 disposed the 'writ petition on the ground thatthe findings
                     .
      of the Central Government are not in-consonance
                                             .
                                                           with the obse!"Vations
      of the High Court made in its order dated 25.08.2006 while disposing of
      C.W.J.C. No.9903 of2001. The said order dated 11.01.2011 passed by
G     the Single Judge in C.W.J.C:No.816 of2008 was challenged by the
      respondents by w,ay ofappeal in LPA No.1348of2012. The said appeal
      was allowed by the Division Bench of the High Court by the impugned
      order holding thatthe Single Judge had allowed the claim of the appellant
      Without noticing that JIO document W!15 produced by the appellant proving
      the fact that the deceased. remained underground for. more than six
H
       JAGDAMBA DEVI v. UNION OF !NOIA AND ORS.                                485
                 [R. BANUMATHI, J.]

months. The High Court further held that" .... the Central Government          A
has clearly pointed out that the applicant did not meet the eligibility
criteria of eilher being an underground within the meaning of the
scheme for more than six months nor did he claim to be in custody
for more than six months and as such he was ineligible".
       6. The learned counsel for the appellant contended that the             B
respondent authorities adopted a hyper-technical approach while dealing
with the case of freedom fighter and ignored the basic objectives of the
scheme, which is to honour and benefit the kith and kin of the freedom
fighters. It was contended that the contradictions and discrepancies
noticed in the case of the appellant by the High Court are not material to
deprive the appellant of her right to get pension. It was further submitted
                                                                                c
that the impugned order was passed incomplete disregard of the findings
of this Court in the case of Gurtlial Singli vs. Union oflmlia and Ors.
(200 I) 8 SCC 8, which is to the effect thatthe standard of proof required
in cases dealing with Swatantrata Sainik Samman Pension Scheme,
1980 is not such which is required in a criminal case.                          D
       7. Per contra, the learned Additional Solicitor General Mr. Maninder
Singh contended that the Division Bench of the High Court has rightly
declined the claim of the appellant, in the light of the fact that there was
neither any document nor any report that the appellant was
"underground" for more than six months. It was contended that being             E
"underground" is not synonymous to being "an absconder" and the
essentials of an "underground", as laid down in the Scheme, are not
fulfilled in the case of Hari KantJha.
     8. We have heard the parties before us and have also perused the
materials available on record, as also the impugned order.                      F
      9. The Swatalltrata Sainik Sammon Pension. Scheme, 1980 is
a Central Government Scheme for the grant of pension to freedom
fighters and their families from Central Revenues which was introduced
by the Government of India to extend the benefit of pension to all the
freedom fighters as a token of respect to them. The Scheme is detailed
                                                                                G
to the effect that it clearly specifies the persons who are eligible for the
purpose of grant of pension under the Scheme; what are the movements/
mutinies connected with the national freedom struggle; how to prove the
claims; mode of payment of pension etc. Clause 3 of the Scheme lays
down the eligibility of the persons who can claim pension under the Act.
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486            SUPREME COURT REPORTS                             [2017] I S.C.R.


A     Clause 3(b), which is attracted in the case of the appellant reads as
      under:-
            "3. WHO IS ELIGIBLE? For the purpose of grant of Samman
               pension under the scheme, a freedom fighter is:-
               (b) A person who remained underground for more than six
B              months provided he was:
               I. a proclaimed offender; or
               2. one on whom an award for arrest/head was announced; or
               3. one for whose detention order was issued but not served."
c           I 0. Clause 7(b) of the Scheme explicitly lays down that the claim
      of being "underground" can be proved either by documentary evidence
      by way of Court's/Government's orders proclaiming the applicant as an
      offender, announcing an award on his head, or for his arrest or ordering
      his detention; or, Certificates from veteran freedom fighters who had
D     themselves undergone imprisonment for five years or more if the official
      records are not forthcoming due to their non-availability. Clause 7(b)
      reads as under:
            "7. HOW TO PROVE THE CLAIMS (EVIDENCE
            REQUIRED).- The applicant should furnish the documents
E           indicated below whichever is applicable:-
             (a) IMPRISONMENT/DETENTION, ETC.:
                 Certificate from the jail authorities concerned, District
                   Magistrate or the State Government in case of non-
                   availability of such certificates, co-prisoner certificate
F                . from a sitting MP or MLA or from an ex-MP or an
                   Ex-MLA specifying the jail period
             (b) REMAINED UNDERGROUND:
               (i) Documentruy evidence by way of court's/government
G                  orders proclaiming the applicant as an offender,
                   announcing an award on his head, or for his arrest or
                   ordering his detention.
               (ii) Certificates from veteran freedom fighters who had
                   themselves undergone imprisonment for five years
                   or more ifthe official records are not forthcoming
H
       JAGDAMBA DEVI v. UNION OF INDIA AND ORS.                                487
                 [R. BANUMATHI, J.]
                        •
             due to their non-availability.                                    A
                                                                                     '
       (c) INTERNMENT OR EXTERNMENT:
          (i) Order of internment or externment or any other
              corroboratory documentary evidence.
          (ii) Certificates from prominent freedom fighters who                 B
              had themselves undergone imprisonment for five
              years or more ifthe official records are not available.
      Note.- The certified veteran freedom fighters in respect of
      underground suffering, internment/externment and the
      applicant should belong to the same administrative unit                  c
      before the reorganization of States and their area of operation
      must be the same.
       (d) LOSS OF PROPERTY, JOB ETC.:
             Orders of confiscation and sale of property orders
             of dismissal or removal from service."                             D
       11. As it appears from the record, the Government of Bihar vide
its letter dated 06.04.1993, had recommended an application dated
25.03 .1982, of Late Hari Kant Jha for pension under Swatantrata Sainik
Sammon Pension Scheme, 1980 on the basis of the deceased's
"underground suffering" for about 26 months from 16.09.1942 to                  E
14.10.1944 in the case related to G.R. No.609/42. What is material for
our present consideration is the subsequent order 15.11.2006 passed ,by
the Central Government rejecting the claim of the appellant, as being
ineligible for the claim of pension under the Scheme.
       12. The appellant had laid his claim only on the ground that Hari        F
Kant Jha had remained underground for more than six months. From
the aforesaid Clause 7(b), there are two modes of providing evidence
for the same. The first one is by producing official records and the
second, where the official records were not forthcoming due to their
non-availability, as per Clause 7 (b)(ii), by producing certificate from the
freedom fighters who have themselves undergone imprisonment for five            G
years or more. In the case of the appellant, since official records were
not traceable due to non-availability, the appellant submitted a certificate
 from one Shri J11gdish Singh who was a veteran freedom fighter. The
 Central Government vide its order dated 15.11.2006 clearly pointed out
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.488             SUPREME COURT REPORTS                            [2017] 1 S.C.R.


A      that none of eligibility criteria were met in the case of the appellant. As
       noted earlier, in G.R. No.609/1942, Hari Kant Jha was arrested on
       14.10.1944 and remained injailtill he was released on bail on 27.10.1944.
       He was thereafter discharged from the case on 25.01.1945. The word
       "underground'' is not synonymous to being "an absconder". Based
       on the verification of the documents, in its order dated 15 .11.2006, the
 B
       Central Government stated that the jail suffering of Shri Hari Kant Jha
       was only forthirteen days whereas the minimum jail suffering required
       to become eligible for pension is six months. There was neither any
       document nor any report that Hari Kant Jha was absconding for more
       than six months. That being "underground" is not synonymous to being
c      an ..absconder".
              13. As per Swatantrata Sainik Samman Pension Scheme, 1980,
       the claim of" Underground Suffering" is considered subject to furnishing
       of the following evidence:-
               "(i) Primary evidence: Documentary evidence by way of
D             court's/Government's order proclaiming the applicant as an
               absconder, announcing an award on his head or for his arrest
             . or ordering his detention. Absconsion on issue of warrant
               ofarrest is not an eligible suffering for grant of SSS pension,
               unless the same is followed by the order of proclaimed
 E             offender/or award for arrest on head or detention order.
               (ii) Secondary evidence:- In the absence of primary record-
               based evidence, a Non-Availability of Records Certificate
               (NARC) from the concerned State Government/Union
               Territory Administration along with a Personal Knowledge
 F             Certificate (PKC) from a prominent freedom fighter who
               has proven jail suffering of a minimum of two years and
               who happened to be from the same administrative District
             . can be submitted as supporting evidence to the claim."
             Where primary evidence viz. records of the relevant period are
 G     not available, 'Non-Availability of Record Certificate (NARC)' from
       the concerned authority, in the form of secondary evidence becomes a
       pre-requisite for claiming "w1dergro1111d suffering". The instructions
       require the State Government to issue NARC only after due verification
       from the concerned sources. In the case ofappellant, Central Government
       stated that the appellant has not produced any acceptable record-based
H
         JAGDAMBA DEVI v. UNION OF !NOIA AND ORS.                            489
                   (R. BANUMATHI, J.]

evidence duly verified by the State Government to establish the claimed      A
'jail' or 'underground sufferings' of Late Shri Hari Kant Jha. She
has also not produced NARC from the competent authority as required
and thaHhus, the eligibility criteria is not met.
      14. Learned counsel for the appellant submitted that keeping in
mind the object of the Scheme, the authorities concerned are required to
adopt an approach which is beneficial to-thefreedoin fighters. In this
context, the counsel placed reliance on para (6) of Gurdial Sing/1 vs.
Union ofIndia and Ors. (2001) 8 SCC 8, which reads as under:
       "6. The Scheme was introduced with the object of providing
       grant of pension to living freedom fighters and theirfamilies          c
       and to the families of martyrs. It has to be kept in mind t~at
       millions of masses of this country had participated in the
       freedom struggle without any expectation of graht of any
       scheme at the relevarittime. It has also to be kept in mind
       thatin the partition of the country most of the citizens who
       suffered imprisonment were handicapped to get the relevahi            D
       record from the jails where they had suffered imprisonment.
     · The problem of getting the record from a foreign cOUntry·is ,.
       very cumbersome and expensive. Keeping in mind the
       object of the Scheme, the authorities concerned are required
       that in appreciating the Scheme for the benefit of freedom             E
       fighters a rational and not a technical approach is required
       to be adopted. It had 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 lifeJor the country."
      15. The judgment in Gurdfol Singh's case reiied upon· by the            F
appellant does not stand in support of the case of the appellant. In fact,
it was well explained by a subsequent judgment of this Court in State of
Maharashtra and Ors: vs. Ragltunat/1 Gajana11 Wal11gankar (2004)
6 sec 584, wherein it was observed as under:~'                   .
    ..   '   ,1-·   '   .      .•           .           .    .          .

     . "7. lt_istrue that.in fiurdia/Singh sr;ase (supra) this Court
       h11s 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
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490            SUPREME COURT REPORTS                            [2017] l S.C.R.


A           to honour, and .to mitigate the sufferings of the freedom
            fighters. However, the observations of this Court in Mukund
           ·Lal Bhandari 's case (supra) cannot be lost sight of and
            give a complete .go by wherein this Court has very clearly
            directed that:
B             "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
              p~titioners, they had produced in support of their claim and
          ·• pronounce upontheir genuineness. It is the function of the
c             Government. to .do so. We would, therefore, direct
          ·.· ac<:oroingly."
           i 6. ThafSwai1111trata Sainik Sammon Pension Scheme, 1980
      is adocuin~tbasedSche1ne and the documents required for eligibility
   •.for $aminan Pension as mentioned in the Scheme are to be produced by
 D the appliclilltin supp9rt of his claimed suffering, duly verified and
    . recommended· by the concerned State Government. Due to the
      discrepancies and ambiguities relating to the documents and also due to
      non-production of NARC, benefit of the Scheme could not be extended
      to the ap'pellant. As held in Raghunatl1 Gajanan 's Case, it is not possible
.E for this CoUrt to scrutinize the documents as to its sufficiency or otherwise.
           17. In c.W.J.C. No.9903 of 2001, the Single Judg1: has made
   certain obse.rvations to the effect that "Hori Kallt Jha was absconding"
    and that the same was sufficient under the provisions of the Scheme to
    declare him "as remaining underground for more than six months",
F  thereby   making him entitled for the pension. As rightly observed by the
   Division Bench of the High Court, the said observation in C. W.J.C.
    No.9903 of 2001 was without reference to the Scheme. Be it noted that
    in C.W.J.C. No.9903 of2001, the learned Single Judge only remanded
    the matter to the Central Government for reconsideration, giving liberty
    to the Central Government to reappraise the documents. Upon reappraisal
G of the matter, the Central Government has clearly pointed out that Shri
    Hari Kant .Jha did not meet the eligibility criteria of either being an
    underground within the meaning ofthe Scheme for more than six months
    or.undergoing sentence for more than six months and as such he was
  ·.ineligible. The High Court, in our view, has rightly held that the Central
H Government was well. within its power to hold that Hari Kant Jha was
        JAGDAMBA DEVI v. UNION OF INDIA AND ORS.                              491
                  [R. BANUMATHJ, J.]

ineligible to seek pension under the Swatantrata Sainik Samman Pension         A
Scheme, 1980. We do not find any reason warranting interference with
the impugned order.
       18. In the result, the appeal is dismissed. No costs.
Nidhi Jain                                                Appeal dismissed.
                                                                               B