SECRETARY TO GOVERNMENT OF INDIAversusSAWINDER KAUR AND ANOTHER

                       [2013) 4 S.C.R. 788


A          SECRETARY TO GOVERNMENT OF INDIA
                              v.
              SAWINDER KAUR AND ANOTHER
               (Civil Appeal No. 2649 of 2013)
B                       MARCH 21, 2013
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

       Swatantrata Sainik Samman Pension Scheme, 1980 -
  Pension sought under - High Court granted the same, from
C the year 1973 - Held: The direction relating to entitlement of
  the claimant to the benefit of pension from 1973 is erroneous
  - He could be covered under the Scheme only after the
  circular dated 31.1.1983 whereby he was made entitled to the
  pension - Circular No.814183-FF(P) dated 31.1.1983 issued
D by Ministry of Home Affairs.

       Husband of respondent No.1 sought freedom fighter
  pension under Swatantrata Sainik Samman Pension
  Scheme, 1980 claiming to have participated in freedom
E struggle by joining Indian National Army. As per 1980
  Scheme, the ex-INA personnel who had not suffered
  formal punishment were not eligible for getting pension,
  but by Circular No.814183-FF(P) dated 31.1.1983, such
  personnel were also admitted to the 1980 Scheme. After
F intervention of the Court, Government accepted his claim
  and directed that he would be entitled to the pension
  w.e.f. 9.6.1994. The claimant approached High Court
  claiming the pension from the year 1980 i.e. the date of
  the scheme. Single Judge of High Court granted him the
G pension from the year 1973 i.e. the date of his original
  claim. The order of Single Judge was upheld in writ
  appeal.

        In the present appeal by the State the question for

H                               788
    SECRETARY TO GOVERNMENT OF INDIA v.                789
              SAWINDER KAUR
consideration was as to which date the claimant was           A
entitled to get the pension.

    Allowing the appeal, the Court

    HELD: 1. Initially the benefit was not extended to the
husband of respondent No.1 who was the petitioner as          B
he belonged to a different category. After relaxation, the
same was extended on certain conditions to certain
categories but her husband was found to be ineligible
and, hence, the claim was rejected. After direction of the
High Court to consider his case, the authorities, after       C
considering all the facts including the certificate,
extended the benefit on the basis of secondary evidence
as there was no clinching material on record that he was
covered under the scheme as relaxed vide Circular dated
31.01.1983. On a perusal of the scheme, it is manifest that   D
under no circumstances the respondent would have got
the benefit from 1973, that is, the date of application, as
he could only be covered under the scheme after the
circular dated 31.01.1983. Thus, the direction relating to
his entitlement from the date of the application is           E
erroneous. [Para 9] [794-C-E]

     2. In the instant case, the claim was not allowed on
the basis of the jail certificate produced by the claimant
but on the basis of the oral statement of some other
                                                              F
detenu. Tile competent authority was not satisfied as
regards the fulfilment of the conditions. There was no
primary evidence available in the official records as
required under the scheme to establish the claim that the
claimant was an Ex- INA member and suffered in New
Guinea/New Britain Islands to prove his eligibility for       G
pension under the scheme. However, regard being had
to the totality of the circumstances, he was extended the
benefit under the scheme as it was a case of benefit of
doubt. As is evident from the orders passed by the Single
Judge as well as the Division Bench, there is no              H
    790     SUPREME COURT REPORTS                (2013] 4 S.C.R.

A discussion in that regard but pension has been granted
  from the date of the application in an extremely
  mechanical manner. Such approach is erroneous and it
  has resultantly led to an unsustainable order. [Para 15]
    [796-D-G]
B
       Mukund Lal Bhandari and Ors. vs. Union of India and
  Ors. (1993) Supp (3) SCC 2:1993 (3) SCR 891; State of
  Orissa vs. Chaudhuri Nayak (Dead) through LRs. and Ors.
  (2010) 8 SCC 796: 2010 (10) SCR 615; Gurdial Singh vs.
C Union of India (2001) 8 SCC 8: 2001 (3) Suppl. SCR 323;
  State of M.P. vs. Devkinandan Maheshwari (2003) 3 SCC
  183; Union of India vs. Avtar Singh (2006) 6 SCC 493: 2006
  (3) Suppl. SCR 666 Union of India vs. Surjit Kaur and Anr.
  (2007) 15 SCC 627; Union of India and Anr. vs. Kaushalya
  Devi (2007) 9 SCC 525: 2007 (2) SCR 745; Government of
D India vs. K. V. Swaminathan (1997) 10 SCC 190: 1996 (8)
  Suppl. SCR 737; Union of India and Ors. vs. Kashiswar Jana
  (2008) 11 SCC 309: 2008 (5) SCR 927- referred to.
                        Case Law Reference:
E         1993 (3) SCR 891         referred to        Para 6
          2010 (10) SCR 615        referred to        Para 10
          2001 (3) Suppl. SCR 323 referred to         Para 10

F         (2003) 3 sec 183         referred to        Para fO
          2006 (3) Suppl. SCR 666 referred to         Para 11
          (2001) 15 sec 627        referred to        Para 12
          2007 (2) SCR 745         referred to        Para 13
G
          1996 (8) Suppl. SCR 737 referred to         Para 13
          2008 (5) SCR 927         referred to         Para 14

          CIVIL APPELLATE JURISDICTION : Civil Appeal No.
H 2649 of 2013.
    SECRETARY TO GOVERNMENT OF INDIA v.                        791
              SAWINDER KAUR
    From the Judgment & Order dated 26.04.2012 of the                  A
High Court of Punjab & Haryana at Chandigarh in Letters
Patent Appeal No. 578 of 2012 (0 & M).

    Paras Kuhad, ASG Arijit Prasad, Vikas Garg, Jilin
Chaturvedi, Prateek Jalan, 8. Krishna Prasad for the Appellant.
                                                                       B
     Himanshu Gupta, Anil Kumar Tandale for the Respondents.

     The Judgment of the Court was delivered by

     DIPAK MISRA, J. 1. Leave granted.
                                                                       c
      2. The husband of the respondent No. 1, late Gurnam
Singh Dhillon, had applied for grant of freedom fighter pension
on the basis that he had participated in the freedom struggle
and had joined the Indian National Army or Azad Hind Fauj (for
short "the INA") during 1941-42 in Singapore. His claim for            D
pension was based on the scheme, namely, Swatantrata
Sainik Samman Pension Scheme, 1980 (for brevity "the 1980
Scheme"). Prior to the said Scheme, the Freedom Fighters
Pension Scheme, 1972 (for short "the 1972 Scheme) was in
vogue from 15.8.1972. The benefit of the 1972 Scheme was               E
extended to certain categories of freedom fighters and their
family members and the said Scheme was liberalized in the
year 1980. Under the said liberalized scheme, anyone who had
participated in the INA and in the Indian Independence League
(Ill) was also treated to have participated in the National            F
Liberation Movement. Under the said Scheme, a person,
claiming pension on the grounds of being in custody in
connection with the freedom movement, could be considered
for grant of pension on production of imprisonment/ detention
certificate from the concerned jail authorities, District Magistrate   G
or the State Government indicating the period of sentence
awarded, date of admission, date of release and various other
factors. It also provided that in case official records of the
relevant period were not available, secondary evidence in the
form of certificates from co-prisoners from central freedom
                                                                       H
    792     SUPREME COURT REPORTS                   [2013] 4 S.C.R.


A fighter pensioners who had proven jail suffering of minimum one
  year and who were with the applicant in the same jail could be
  considered provided their genuineness could be verified and
  found to be true by the competent authorities. In case of persons
  belonging to INA category, a certificate from a co-prisoner from
B the central freedom fighters pensioner was required. As per the
  1980 Scheme, the ex-INA personnel who had not suffered
  formal punishment were not eligible for getting pension but later
  on, regard being had to their hardships and their patriotism, they
  were admitted to the Scheme from the year 1980 in terms of
c the relaxation provided in the Ministry of Home Affairs circular
  No. 8/4/83-FF(P) dated 31.1.1983.

       3. As is demonstrable from the factual score, when the
  husband of the respondent No. 1 submitted the application for
  grant of freedom fighters pension, the army record showed that
D he was enrolled in the army on 13.6.1939 and released from
  service on 14.2.1946 due to reduction of the Indian Army, but
  not due to association with the INA and was also paid service
  gratuity. His application was initially rejected on 16.8.1980. After
  expiry of nine years, in 1989, he claimed that he, being an ex-
E INA, was sent to New Guinea/New British Islands and had
  suffered immense hardships and, accordingly, sought pension
  in terms of the Ministry of Home Affairs circular No. 8/4/83-
  FF(P) dated 31.1.1983. The claim was put forth in accord with
  clause (v) of para 1 of the said circular which stipulated that
F the persons of ex-INA who had been sent to New Guinea and
  adjoining islands and had undergone extreme hardships,
  starvation, although they did not suffer any formal imprisonment,
  would be admitted to the 1980 Scheme. His application was
  not entertained and the prayer was not accepted.
G        4. Being grieved by the order of rejection, late Gurnam
    Singh approached the High Court of Punjab and Haryana in
    CWP No. 11049 of 1992 which was disposed of with the
    direction to the respondent therein to pass a speaking order
    in relation to his grievance within a period of six months. As
H
      SECRETARY TO GOVERNMENT OF INDIA v.                     793
         SAWINDER KAUR [DIPAK MISRA, J.]
his prayer was not accepted, he invoked the jurisdiction of the      A
High Court again in CWP No. 6393 of 1993 assailing the order
of rejection and the High Court issued a direction to determine
the issue afresh. Thereafter, the competent authority of the Union
of India, after due enquiry, accepted the prayer and directed
that he would be entitled to the freedom fighters pension with       B
effect from 9.6.1994.

     5. Being dissatisfied with the determination of the date of
grant, he visited the High Court in CWP No. 15724 of 1994
claiming that the benefit should be extended to him from the         C
date when the Scheme was made applicable, i.e., from
1.8.1980.

      6. The High Court, vide its order dated 13.10.2011,
referred to the decision in Mukund Lal Bhandari and Others
v. Union of India and Others' and earlier decision of the same       D
Court in LPA No. 305 of 2008 and directed that the petitioner
therein was entitled to get the benefit of Freedom Fighters
Pension Scheme from the date from which the original claim
was filed i.e. 22.03.1973 along with interest @ 9 % per annum.
It was also observed that as during the pendency, the original       E
claimant had expired and the wife was more than ninety years
old, the amount should be paid within the period of six months
from the date of the order. It is worth noting that the learned
Single Judge took note that though the original petitioner had
claimed the benefit w.e.f 1980, yet there was no reason to           F
deprive the benefit of the scheme from the date when the
original application was submitted for the reason that the
scheme was brought to honour the forgotten heroes of the
freedom struggle.

    7. The aforesaid order was assailed by the Government            G
in LP.A. No. 578 of 2012 and the Division Bench, vide order
dated 26.04.2012, after narrating the history of the litigation,
concurred with the view expressed by the learned Single Judge

1.   (1993) Supp (3) sec 2.                                          H
    794       SUPREME COURT REPORTS                   [2013) 4 S.C.R.


A   as a result of which the appeal stood dismissed. Hence, the
    present appeal by special leave.

          8. The question that emerges for consideration in this
    appeal by special leave under Article 136 of the Constitution
    is from which date the wife of the freedom fighter would be
8
    entitled to get the pension under the 1980 Scheme.

        9. From the exposition of facts, it is quite clear that initially
  the benefit was not extended to the husband who was the
  petitioner as· he belonged to a different category. After
C relaxation, the same was extended on certain conditions to
  certain categories but the husband was found to be ineligible
  and, hence, the claim was rejected. After direction of the High
  Court to consider his case, the authorities, after considering all
  the facts including the certificate, extended the benefit on the
D basis of secondary evidence as there was no clinching material
  on record that he was covered under the scheme as relaxed
  vide Circular dated 31.01.1983. On a perusal of the scheme,
  it is manifest under no circumstances the respondent would
  have got the benefit from 1973, that is; the date of application
E as he could only be covered under the scheme after the circular
  dated 31.01.1983. Thus, the direction relating to his entitlement
  from the date of the application is absolutely erroneous.
       10. The heart of the matter is whether the respondent would
  be entitled even from the date, i.e., 1.08.1980 when the
F scheme came into existence. To appreciate the said issue, we
  may usefully refer to certain authorities in the field. In State of
  Orissa v. Chaudhuri Nayak (Dead) through LRs and Others',
  a two-Judge Bench referred to the decisions in Mukund Lal
  Bhandari (supra), Gurdia/ Sfngh v. Union of lndia 3 and State
G of M.P. v. Devkinandan Maheshwart' wherein the object of the
  Freedom Fighters' Pension and what should be the approach

    2.   c2010J 8 sec 796.
    3.   c2001J 8 sec 8.
H   4.   (2003) 3 sec 183.
     SECRETARY TO GOVERNMENT OF INDIA v.                      795
        SAWINDER KAUR [DIPAK MISRA, J.]
of the authorities in dealing with the applications for pension       A
under the Scheme was stated, summarized the principles laid
down therein and thereafter proceeded to state that the
Government should weed out false and fabricated claims and
cancel the grant when bogus nature of the claim comes to light.
     11. In Union of/ndia v. Avtar Singh 5, it has been observed      B
that the genuine freedom fighters deserve to be treated with
reverence, respect and honour, but at the same time, it cannot
be lost sight of the fact that the people who had no role to play
in the freedom struggle should be permitted to benefit from the
liberal approach to be adopted in the case of freedom fighters.       c
Be it noted, all this was said in respect of availing the claim by
producing false and fabricated documents as ger.uine to avail
the pension.
     12. In Union of India v. Surjit Kaur and Another6, this Court
was dealing with a situation where the husband's application          D
was rejected for grant of freedom fighters' pension and the
respondent-husband did not challenge for two decades and the
wife, two years after his death, filed a suit claiming the pension.
This Court observed that the claim was barred under the
Limitation Act, 1963.                                                 E
      13. In Union of India and another v. Kaushalya Dev?, the
Court referred to the decision in Government of India v. K. V.
Swaminathan8 where the claim was allowed on the basis of
benefit of doubt and, therefore, pension was granted not from
the date of the application but from the date of the order. Further   F
analyzing, this Court opined as follows:-
     "ln the present case, we have perused the record and
     found that it is stated therein that the claim was allowed
     on the basis of secondary nature of evidence. In other
     words, the claim was not allowed on the basis of jail            G
     certificate produced by the claimant but on the basis of oral
5.   (2006) 6 sec 493.
6.   c2001) 15 sec 621.
1.   c2007) 9 sec 525.
a.   (1997) 10 sec 190.                                               H
    796        SUPREME COURT REPORTS               [2013] 4 S.C.R.


A         statement of some other detenu. Hence, we are of the
          opinion that the pension should be granted from the date
          of the order and not from the date of the application."
        14. In Union of India & Others v. Kashiswar Jana•, the
  issue arose from which date the respondent therein was
B entitled to pension. In the said case, the pension was released
  w.e.f 4.8.1993. The claim of the respondent was that he was
  entitled to the pension from the date of the application which
  was allowed by the High Court directing that pension should
  be awarded from the date of application, i.e., 28.7.1981. This
c Court, relying on the decision in Kausha/aya Devi (supra), ruled
  that pension is to be granted from the date of the order passed
  by the High Court, i.e., 4.8.1993.
        15. In the case at hand, as is evincible, the claim was not
  allowed on the basis of the jail certificate produced by the
D claimant but on the basis of the oral statement of some other
  detenu. The competent authority was not satisfied as regards
  the fulfilment of the conditions. There was no primary evidence
  available in the official records as required under the scheme
  to establish the claim of the respondent-husband that he was
E an Ex- INA member and suffered in New Guinea/New Britain
  Islands to prove his eligibility for pension under the scheme.
  However, regard being had to the totality of the circumstances,
  he was extended the benefit under the scheme as it was a
  case of benefit of doubt. As is evident from the orders passed
F by the learned Single Judge as well as the Division Bench,
  there is no discussion in that regard but pension has been
  granted from the date of the application in an extremely
  mechanical manner. In our considered opinion, the approach
  is erroneous and it has resultantly led to an unsustainable order.
G       16. Consequently, the appeal is allowed, the orders
    passed in the Writ Petition and affirmed in the Letters Patent
    Appeal are set aside. There shall be no order as to costs.
    K.K.T.                                        Appeal allowed.
H   9.    (2oos) 11 sec 309.