Holding

Clause 3(e) of Para 4 requires only permanent incapacitation, so loss of vision in one eye qualifies for pension.

Summary

The appellant, a freedom fighter, sought a pension under the Swatantrata Sainik Samman Pension Scheme on the ground that he had permanently lost vision in his left eye due to a police lathi charge during the freedom struggle. Although medical certificates and recommendations from the District Collector and State Government affirmed his permanent incapacitation, the Ministry of Home Affairs refused pension, contending that loss of vision in one eye did not constitute "permanent incapacitation" as required by clause 3(e) of the scheme, which they interpreted to mean total incapacitation. The Supreme Court held that the clause requires only permanent, not total, incapacitation, and that loss of vision in one eye satisfies this condition. The Court also rejected the objection that the appellant could not produce official records from the period, noting the impracticality of preserving such documents for forty years. Consequently, the appeal was allowed and the pension was ordered to be granted.

Issues considered

Whether clause 3(e) of Para 4 of the Freedom Fighters Pension Scheme requires total incapacitation or merely permanent incapacitation.
Whether loss of vision in one eye qualifies as "permanent incapacitation" for purposes of the pension scheme.
Whether the absence of documentary evidence from official records defeats the appellant's claim.

Subjects

Freedom fighters pensionPermanent incapacitationInterpretation of statutory schemeLoss of visionAdministrative lawWrit of certiorariTotal vs partial disability

Judgment

A
R. NARAYANAN
v.
--
UNION OF INDIA AND ANR.

OCTOBER 25, 1989

B [S. NATARAJAN AND N.D. OJHA, JJ.]

Freedom Fighters Pension Scheme: Para 4, Cl. J(e)-Freedom
Fighter-Permanent loss of vision of one eye-Denial of pension-
Validity of.

Words and Phrases: 'Permanent incapacitation'-lnterpretation
c of-Para 4, Cl. 3(e), Freedom Fighters Pension Scheme.

Clause 3(e) of Para 4 of the Swataintrata Sainik Samman Pension
Scheme of the Government of India enti1tles a freedom fighter to pension
for having become permanently incapacitated during firing or lathi
D charge in the freedom struggle.

The appellant applied for grant olf pension on the ground that he
had suffered permanent loss of vision in his left eye due to brutal lathi
charge by the police against freedom fi:~hters. His claim of permanent
loss of vision in the left eye was duly certified by Government doctors.
E The District Collector after making a detailed enquiry, .certified the
claim of the appellant as a bona fide one and recommended his case for
grant of pension. The State Government also appended their recom-
mendation. The Ministry of Home Affairs, however, declined to grant
pension on the view that loss of vision in one eye did not amount to
permanent incapacitation.
F
A single Judge of the High Court dismissed appellant's writ peti-
tion and a writ appeal against the said order was also dismissed by a
Division Bench.

In this appeal by special leave, it was contended for the respon-
G ' incapacitation under clause 3(e) must not only be per-
dents that the
manent but it must also be a total one, :and since the appellant had not
lost vision in both the eyes the incapacitation, though permanent, was
only partial and not total; and that the petitioner had not been able to
produce any documentary evidence from official records of the relevant
period in support of his claim.
H
'--
720
R. NARA YANAN v. U.0.1. 721

Allowing the appeal,
A
HELD: 1.1 The words used in clause 3(e) of Para 4 of the Pension
Scheme are "permanently incapacitated" and not 'permanently totally
incapacitated". The measure of test thus laid down by the clause is the
permanent nature of the incapacitation and not the total nature of the
incapacitation. If clause (e) were to be interpreted to include total B
incapacitation then a freedom fighter who has lost a leg or an arm
cannot claim payment of pension on the basis of permanent incapacita-
tion inasmuch as the incapacitation suffered by him is not of both the
legs or both the arms. It would be height of injustice to freedom fighters
to construe clause (e) in the said manner. [724F; 72SA-Bi
c
1.2 In view of the ~ertificate issued to him by the Government
doctors that the appellant had suffered permanent incapacitation of his
left eye due to lathi blows received by him during the freedom struggle
and the State Government authorities having, after due enquiry,
accepted the bona fides of the appellant's claim and recommended his D
case for grant of pension the respondents were not justified in refusing
to grant him pension under clause (e) of the Scheme. [724G, 726C, 725E]

2. No one can really expect official r,!'cords to have been pre-
served for a period of 40 years to prove the treatment given to a freedom
fighter for the injuries sustained by him during the freedom struggle. E
Hence, the objection relating to non-production-Of official records of the
releyant period by the appellant fo prove the sustainment of injury by
him ,deserves outright rejection as well as outright condemnation. [726B-C)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4496
~~. F
From the Judgment and Order dated 15.4.1986 of the Madras High
Court in Writ Appeal No. 411of1986.

C.K. S\}charita for the Appellant.·
G
B. Dutta, Additional Solicitor General, (N.P.), P.P. Singh and
Mrs. Sushma Suri for the Respondents.

The following Order of the Court was delivered:
- .. Delay condoned. H
722 SUPREME COURT REPORTS (1989] Supp. 1 S.C.R.

Leave granted. Heard counsel for the parties. The appellant,
A
who is a freedom fighter was refused the grant of pension under the
Swatantrata Sainik Samman Scheme by the Ministry of Home Affairs,
Union of India and hence the appellant approached the High Court for
the issue of a writ of certiorarified mandamus. The appellant's writ
petition was dismissed by a learned single Judge and the writ appeal
B against the said order was also dismissed by a Division Bench. Hence
the present appeal by special leave.

Initially, the appellant sought the grant of pension on the ground
that as a freedom fighter he was kept in police custody for fifteen days
and after conviction he underwent imprisonment for three and a half
months. Since under the Freedom Fighters Pension Scheme, a free-
c dom fighter must have undergone a minimum period of inprisonment
for six months for his participation in the freedom struggle in order to
get pension under that head, the appellant was refused pension.
Thereupon, he applied for grant of pension on another ground viz. that
he had suffered permanent loss of vision in his left eye due to brutal
D lathi charge by the police against freedom fighters. The appellant's
claim of permanent loss of vision in the left eye was duly certified by
Government doctors. The District Collector, after making a detailed
enquiry, certified the claim of the appellant as a bona fide one ancl
recommended his case fot grant of pension by letter dated 13.9 .84.

E Accepting the report of the Collector, the Deputy Secretary to
the Government of Tamil Nadu addressed respondent No. 2 as under:

"It is seen from the verification report that Thiru R.
Narayanan, the freedom fighter has been permanently
physically handicapped due to his involvement in the free-
F dom struggle of the nation. In the circumstances stated
above. I am directed to request that the Government of
India may kindly be moved to sanction Swatantrata Sainik
Samman Pension to Thiru R. Narayanan of Salem
District."

G In spite of the medical certificates issued by Government doctors
and the recommendations of the District Collector and the State Gov-
ernment for grant of pension under the S.S.S. Pension Scheme, the
Ministry of Home Affairs declined to grant pension to the appellant op
the ground that "it is not possible to grant Samman Pension in terms of
permanent incapacitation, hence your case stands reiected" by com- •--
H munication dated J0.4.85. lt was in such circumstances the appellant
R, NARAYANAN v. U.0.1. 723

moved the High Court of Madras fot the issue of a writ of certiorari-
A
fied mandamus but failed to meet with success.

On noiice being issued to the respondents, a counter affidavit
has been filed on behalf of the Union of india by Shri Kishan Chand,
Under Secretary; Minisiry of Home Affairs. Jn the counter-affidavit it
has been stated as follows: B

"The alleged incapacity of his losing vision of one eye as a
result of lathi blow during the freedom struggle is not con-
sidered as permanent incapacitation as contemplated under
clause 3(e) under para 4 of the Scheme under the heading
'who is eligible;, A person is eligible for the pension under
the Scheme if he became permanently incapacitated during
c
firing or lathi charge which would mean a person, in such a
case, who has suffered complete loss of eye sight."

"The case of the petitioner has been considered and cor- D
rectly rejected as per the terms of Scheme, the petitioner
not being eligible for pension. Moreover, the petitioner has
not been able to produce any documentary evidence from
official records of the relevant period in support of his
claim of loss of vision in one eye. In any case; the Govern·
men! having decided as a policy in not treating loss of one E
eye as permanent incapacitation, a discriminatory decision
cannot be taken in favour of the petitioner."

Learned counsel for the appellant urged before us that the
respondents are not justified in construing clause 3(e) of Para 4 of the
Pensions Scheme to mean that the incapacity, besides being permanent p
should also be of a total nature, and as such the denial of pension to
the appellant under clause (e) is unjust. Under the Scheme a freedom
fighter is eligible to recieve pension if he satisfies one of the following
clauses viz.

(a) Had suffered a minimum imprisonment of six months (three G
months in the case ohvomen);

(b) Had remained underground for more than six months
provided
'-- '. (i) he was a proclaimed offenaer; or H
724 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R. ·--
'
(ii) he was a person on whom an award for arrest had been
A
announced or;

(iii) he was a person against whom detention order had
been issued but not served.

B· (c) Had been interned in his home or externed from his district
provided the period of internment/externment was for six
months or more.

(d) Had his property confiscated or attached and sold due to
participation in the freedom struggle;
c (e) Had become permanently incapacitated during firing or lathi
charge;

(f) Had lost his job (Central or State Government) and been
thus deprived of his means of livelihood on account of his partici-
D pation in the National movement."

We are now concerned only with the interpretation of clause (e)
of the Scheme. The clause only refers to permanent incapacitaton due
to firing or lathi charge and not to total incapacitation. The respon-
dents would however take the stand that the incapacitation must not
-
only be permanent but it must also be a total one. Hence according to
them, since the appellant has not lost vision in both the eyes, the
incapacitation, though permanent is only partial and not total and as
such·he is not eligible to grant of pension under clause (e) of the
Scheme.

F The interpretation given by the respondents to clause 3( e) of
Para 4 cannot_ be sustained because the words used in the clause are
'permanent1y incapacitated' and not 'permanently totally incapacita-
ted.' If the stand of the respondents is to be accepted, it would be
opposed to the plain meaning of the words and result in addition of
more conditions to the clause what the framers of the Scheme have laid
G down. It cannot be disputed, in view of the certificates issued to him by
the Government doctors that the appellant has suffered permanent
incapacitation of his left eye due to lathi blows received by him during
.the lreedom struggle. The question would then be whether that
incapacity would satisfy the requirement of clause (e) or not. As

H
already stated, clause (e) refers only to permanent incapacitation and
not total incapacitation of a pemianent nature. It therefore follows
·-, -
R. NARAYANAN v. U.0.1. 725

that the measure of test laid down by the clause is the permanent A
nature of the incapacitation and not the total nature of the incapacita-
tion. If clause . (e) is to be interpreted in the manner set out in the
counter-affidavit, it would follow that a freedom fighter who has lost a
leg or an arm cannot claim payment of pension on the basis of per-
manent incapacitation inasmuch as the incapacitation suffered by him
is not of both the legs or both the arms. It would be the height of B
injustice to freedom fighters, who are a diminishing lot, to construe
clause (e) in the said manner. Highly inequitable therefore it would be
for the appellant to be denied pension under the Scheme because he
has suffered loss of vision only in one eye and not in both the eyes. The
respondents have failed to see that under the Scheme if a freedom
fighter had undergone imprisonment or had been underground for a
minimum period of six months he can be granted pension. In such
c
circumstances can it be contended that a person who has permanently
lost his power of vision in one eye due to firing or lathi charge cannot
be granted pension unlike a person who has been in prison for six
months or had remained underground for six months in order to evade
arrest. D

The Scheme has been formulated with a view to acknowledge the
services rendered to the country by patriotic citizens during the free-
dom movement and who had suffered at .the hands of the British
Rulers in one way or the other and to compensate them in some
measure for their sacrifices for the sake of the country. The respon- E
dents are therefore not justified in refusing to grant pension to the
appellant under clause (e) of the Scheme on the ground that the per-
manent incapacitation suffered by him does not satisfy the require-
ments of clause (e) of the Scheme. The learned Single Judge and the
Division Bench of the High Court, while rejecting the Writ Petition
and Writ Appeal filed by the appellant, have only taken into account F
the period of imprisonment undergone by the appellant and the said
period falling short of the prescribed minimum of six months and have
not considered the appellant's claim for pension under clause (e).

Before concluding the judgment we may also refer to two other
objections that have been raised by the respondents in their counter- G
affidavits. The first one is that the appellant's claim for pension under
clause (e) is an after thought since he had putforth such a claim only
after his claim for pension on the ground of incarceration had .oeen
rejected. The second objection putforth is that:
·' "the petitioner has not been able to eroduce any docu- H
726 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

A mentary evidence from official records of the relevant
period in support of his claim of loss of vision in one eye."

There is neither justice nor grace in the respondent's putting forth such
objections. No one can really expect official records to have been
preserved for a period of 40 years to prove the treatment given to the
petitioner for the injuries sustained by him during the freedom strug-
gle. l-Ience the objection relating to non-production of official records
of the relevant period by the appellant to prove the sustainment of
injury by him deserves outright rejection as well as outright condem-
nation. As regards the criticism that the appellant's claim under claus~
( e) appears to be an after thought, this too merits instantaneous rejec-
c tion. As we have alteady pointed out, the government doctors who
have examined the appellant have found his claim of permanent
incapacitation of the left eye to be true and the State Government
authorities have, after due enquiry, accepted the bona fides of the
appellant's claim and recommended his case for grant of pension under
the S.S.S. Scheme by the respondents. Consequently, merely because
D the appellant, perhaps out of ignorance of the several heads under
which the claim of pension could be made, had applied initially for
grant of pension under clause (e), it can never be said that the present
claim of the appellant is an after thought. ·
..
For all the aforesaid reasons, we allow the appeal with costs of
E Rs.2,000 and quash the impugned order of the respondents dated
30.4.1985, set aside the judgment of the High Court and issue a rule
absolute in favour of the appellant as prayed for.

P.S.S. Appeal allowed.