UNION OF INDIA & ANRversusJAI KISHUN SINGH (D) THROUGH LRS. & ORS.

                   [2014] 8 S.C.R. 1149


                 UNION OF INDIA & ANR.                          A
                             V.
    JAi KISHUN SINGH (D) THROUGH L.RS. & ORS.
            (Civil Appeal No. 6651 of 2008)
                  SEPTEMBER 10, 2014                            8
     [VIKRAMAJIT SEN AND ARUN MISHRA, JJ.)

    FREEDOM FIGHTER PENSION SCHEME, 1980:

     Determination of age - Cancellation of Freedom Fighter     C
Pension on the ground that respondent no. 1 did not
participate in freedom struggle as he was child of 7-8 years
in the year 1942 - Held: As per Voter List of 19!5, age of
claimant was 42 years - Considering said document, age in
1942 would have been above 5 years and below 10 years -         D
At such an age, participation in the freedom fight is highly
improbable, as such, in the facts and circumstances of the
case, cancellation of the pension could not be said to be
unwarranted at all.

     Freedom Fighter Pension is a form of gratitude extended    E
by an indebted nation in recognition of the sacrifice made by
the freedom fighters to achieving independence - Liberal
approach has to be adopted in such matters so that rightful
persons are not deprived of deserving benefit for lack of
evidence, after a lapse of long time - Such cases have to be    F
decided on preponderance of probabilities and standard of
proof beyond reasonable doubt is not to be applied.

    EVIDENCE:
                                                                G
    Documentary evidence - Held: Has to prevail over oral
evidence.

    Determination of age by the Medical Board - Evidentiary

                            1149
   1150      SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A value of - Held: Not reliable as it is based upon physical
  appearance only and not based upon any scientific medical
  test like ossification test and radiological examination - When
  it is based on such scientific tests, it is, of strong corroborative
  value - In the instant case, Medical Board opined on physical
B appearance basis age of the claimant about 73 years - As it
  is not based on scientific tests it cannot be accepted.

        The original respondent no. 1 was recipient of the
  freedom fighter pension. The High Court directed suo
C motu inquiry in rampant complaints, that large number of
  persons in the State of Bihar were availing such benefits
  inspite of not having participated in freedom struggle
  under the Swatantrata Sainak Samman Pension Scheme,
  1980. The Deputy Collector who conducted inquiry into
  the matter found the claim of the deceased respondent
D no. 1 not genuine and the competent authority ordered
  cancellation of the pension with effect from the date it was
  initially sanctioned and recovery of the amount of pension
  already drawn by him. The High Court quashed the said
  order of the authority.
E
        In the instant appeal, issue related to determination
  of the approximate age of deceased respondent no. 1 on
  15th August, 1942. His claim was that his age was 13
  years when he went underground for a year w.e.f. 14th
F August, 1942 to 15th August, 1943.

        Allowing the appeal, the Court

       HELD: 1. The enquiry officer recorded oral statement
  indicating that his age was much less. Such statement is
G discarded as oral statement cannot be a safe criteria for
  arriving at conclusion. However, the documentary
  evidence of the years 1975 and 1977 in the form of Voter
  List and deposition-sheet clinched the issue and
  established that the claim was not genuine. Documentary
H evidence has to prevail, more so as there was no such
     UNION OF INDIA v. JAi KISHUN SINGH (D)          1151
                THROUGH L.RS.

dispute as to age at the relevant time. As per deposition A
sheet of criminal case, age was approximately 40 years •
in 1977. If the said date is taken as correct, the date of
birth would come to the year 1937. As per Voter List of
1975, his age was 42 years. From said documents in
consideration, age in 1942 would have been above 5 B
years and below 10 years. At such an age, participation
in the incident in question is highly improbable as such
cancellation of the pension in the facts and
circumstances of the case, could not be said to be
unwarranted at all. [Para 8] [1154-F-H; 1155-A]            c
    2. The freedom fighter pension is a form of gratitude
extended by an indebted nation in recognition of the
sacrifice made by the freedom fighters to achieving
independence. Liberal approach has to be adopted in
such matters so that rightful persons are not deprived of    D
deserving benefit for lack of evidence, after a lapse of
long time. Such cases have to be decided on
preponderance of probabilities and standard of proof
beyond reasonable doubt is not to be applied. [Para 9]
[1155-B, CJ                                                  E

     Gurdial Singh vs. Union of India (2001) 8 SCC 8: 2001
(3) Suppl. SCR 323; Kam/abai Sinkar vs. State of
Maharashtra & Ors. (2012) 11 SCC 754: 2012 (6) SCR 1011
- referred to.                                               F
    3. The determination of age by the Medical Board is
not reliable as it is based upon physical appearance only
and not based upon any scientific medical test like
ossification test and radiological examination. When it is
                                                             G
b~sed on such scientific tests, It is, of strong
corroborative value. The Medical Board held on 11.4.2002
has opined on physical appearance basis age about 73
years. It is not based on scientific tests hence it cannot
be accepted, more so in view of other documentary
                                                             H
    1152     SUPREME COURT REPORTS              [2014] 8 S.C.R.


A evidence on record. In the facts and circumstances of this
  case, the judgment and order of the High Court is set
  aside. As the respondent has been wrongly allowed
  pension after rejecting claim at the first instance by the
  appellant, the High Court has directed sue> motu inquiry
B and on this basis pension had been withdrawn, and also
  considering the fact that the recipient of pension
  respondent No.1 has died, the amount paid to him shall
  not be recovered from his legal representatives. [Paras
  11, 13] [1156-E-F; 1158-8-C]
c
         Om Prakash vs. State of Rajasthan & Anr. (2012) 5 SCC
    201: 2012 (5) SCR 237; State of Orissa vs. Choudhury Nayak
    (D) through L.Rs. & Ors. (2010) 8 SCC 796: 2010 (10) SCR
    615 - relied on.
D                      Case Law Reference :
      2001 (3) Suppl. SCR 323     Referred to        Para 10
      2012 (6) SCR 1011           Referred to        Para 10

E     2012 (5) SCR 237            Relied on          Para 11
      2010 (10) SCR 615           Relied on          Para 12
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6651 of 2008
F
        From the Judgment and Order dated 21.02.2007 of the
    High Court of Patna in LPA No. 82/2006.
         S. Wasim A Qadri, Rekha Pandey (for Sushma Suri) for
    the Appellants.
G
       Manu Shanker Mishra, Nishant Kumar, Manish Kumar (For
    Gopal Singh), Mridual Ray Bharadwaj for the Respondents.

        The Judgment of the Court was delivered by

H       ARUN MISHRA, J. 1. In the case in hand, the Court is
      UNION OF INDIA v. JAi KISHUN SINGH (D)                 1153
        THROUGH L.RS. [ARLIN MISHRA, J.]

required to adjudicate upon the issue whether F.reedom Fighter        A
pension had been undeservingly extended to respondent No.1
inspite of the fact that he did not participate in freedom struggle
as he was a child of 7 to 8 years in the year 1942.

     2. Initially, original respondent No.1 's case for granting      B
suchpension was declined by the appellant vide letter
dated19.06.1995. However, original respondent No.1 was
successfulin getting released pension on second attempt and
it was ordered to be released on 26.12.1997 with retrospective
effect from 28.07.1981.
                                                                      c
     3. The matter did not set at rest at that. The High Court at
Patnadirected suo motu inquiry in the rampant complaints that
largepersons in the State of Bihar were availing such benefits
inspiteof not having participated in freedom struggle as
contemplatedunder the Swatantrata Sainik Samman Pension               D
Scheme, 1980(for short "the SchE;!me"). The Deputy Collector
conductedinquiry into the matter and recorded evidence. He
found that claim of the deceased respondent No.1 was not
genuine. On that basis, the Union of India issued show-cause
notice and thereafter took decision on 19.05.2004 to cancel           E
-pension witheffect from the date it was initially sanctioned, i.e.
28.07.1981 and the amount of pension already drawn by him
be recovered.

     4. The deceased respondent No.1 unsuccessfully
                                                                      F
impugned the aforesaid order in writ petition filed before the
Single Bench. However, the Division Bench of the High Court
in the appeal has quashed the order. Hence, the Union of India
has come up in appeal before us. The operation of order
passed by the Division Bench of the High Court was stayed
                                                                      G
by this Court on 10.11.2008.

     5. The learned counsel for the appellants submitted that
pension was rightly withdrawn. The age of the deceased
respondent No.1 was 7 to 8 years in 1942. Thus, his
participation in the incident of August 1942 was rightly              H.
•


       1154     SUPREME COURT REPORTS               [2014) 8 S.C.R.


    A disbelieved. He was unable even to give details of the incident
      in the course of inquiry. The reliance placed by the Division
      Bench on the determination of age by the Medical Board at 73
      years in 2001 was uncalled for as the Medical Board has not
      conducted scientific tests and has opined on the basis of
    B physical appearance of the original respondent No.1. He had
      also submitted that the original respondent No.1 had stated his
      age on 06.06.1977 to be 40 years while deposing in Criminal
      Case No.1018/1974 (Trial No.381/77). Apart from this, in the
      Voter List of 1975, his age has been mentioned as 42 years.
    c Thus, at the age of 7 to 8 years, the claim that he participated
      in freedom struggle could not be said to be believable.

            6. Per contra, the counsel for L.Rs. of the deceased
      .respondent No.,1 would submit that pension had bet;ln rightly
    D sanctioned in 1997. Thereafter, in view of the report of Medical
       Board, there was no reason to withdraw it as the age at the
       relevant time in 1942 would have been 13 years.

          7. The main question for consideration is what was the
      apprdximate age of deceased respondent No. 1 on 15th
    E August, 1942. He has claimed that his age was 13 years when
      he went underground for a year w.e.f. 14th August, 1942 to 15th
      August, 1943.

           8. The enquiry officer recorded oral statement indicating
    F that his age was much less. We discard such statement as oral
      statement cannot be a safe criteria for arriving at conclusion.
      However, the documentary evidence of the years 1975 and
      1977 in the form of Voter List and deposition-sheet clinches
      the issue and establishes that the claim is not genuine.
    G Documentary evidence has to prevail, more so as there was
      no such dispute as to age at the relevant time. As per
      depositionsheet of criminal case, age was approximately 40
      years in 1977. If the said date is taken as correct, the date of
      birth would come to the year 1937. As per Voter List of 1975,
    H his age was 42 years. From aforesaid documents in
      consideration, age in 1942 would have been above 5 years and
     UNION OF INDIA v. JAi KISHUN SINGH (D)                1155
       THROUGH L.RS. [ARUN MISHRA, J.]
below 10 years. At such an age, participation in the incident in    A
question is highly improbable as such cancellation of the
pension in the facts and circumstances of the casei could not
be said to be unwarranted at all.

    9. T.he freedom fighter pension is a form of gratitude
                                                                    B
extended by an indebted nation in recognition of the sacrifice
made by the freedom fighters to achieving independence. We
are conscious of the fact that liberal approach has to be
adopted in such matters so that rightful persons.are not
deprived of deserving benefit for lack of evidence, after a lapse
of long time. It has been laid down by this Court that such cases   C
have to be decided on preponderance of probabilities and
standard of proof beyond reasonable doubt is not to be applied.

    10. Relying upon Gurdial Singh vs. Union of India (2001)
8 SCC ·8 in Kamlabai Sinkar vs. State of Maharashtra & Ors.         D
(2012) 11 sec 754, this Court has laid down thus :

    "6. Having perused the above materials on record, at the
    very outset, we wish to refer tothe observations made by
    this Court in regardto the grant of freedom fighters' pension . E
    in thedecision in Gurdial Singh v. Union of India. In para 7
    of the judgment; this Court has highlighted the manner in
    which such claims are to be considered for grant of
    freedom fighters' pension. It will be worthwhile to make a
    reference to the said passage before expressing our
    conclusion with regard to the claim of the appellant's F
    husband in the case onhand."

     7. Para 7 reads as under: (Gurdial Singh case)

     "7. The standard of proof required in such casesis not such    G
     standard which is required in a criminal case or in a case
     adjudicated upon rivalcontentions or evidence of the
     parties. As the object of the Scheme is to honour and to
     mitigate the sufferings of those who had giventheir all for
     the country, a liberal and not a technical- approach is
                                                                    H
    1156     SUPREME COURT REPORTS                   [2014] 8 S.C.R.


A       required to be followedwhile determining the merits of the
        case of aperson 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
B       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
c
        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 imprisonmentfor the cause of the country and
        during thefreedom struggle, a presumption is required to
D
        be drawn in his favour unless the same is rebutted by
        cogent, reasonable and reliable evidence."

                                                   [emphasis added]

E      11. We are unable to rely upon determination of age by
  the Medical Board as it is based upon physical appearance
  only and not based upon any scientific medical test like
  ossification test and radiological examination. When it is based
  on such scientific tests as laid down in Om Prakash vs. State
F of Rajasthan & Anr. (2012) 5 SCC 201, it is of strong
  corroborative value. The Medical Board held on 11.4.2002 has
  opined on physical appearance basis age about 73 years. It
  is not based on scientific tests hence it cannot be accepted,
  more so in view of other documentary evidence on record.
G        12. This Court in State of Orissa vs. Choudhury Nayak
    (D) through L.Rs. & Ors. (2010) 8 SCC 796 has adversely
    commented on undeserving candidates availing the benefits of
    such welfare schemes, thus:

H       "9. It is of some interest to note from the statistics furnished
  UNION OF INDIA v. JAi KISHUN SINGH (D)                1157
    THROUGH L.RS. [ARUN MISHRA, J.]
  by the Central government in their additional affidavit,        A
  that1, 70;813 freedom fighters/dependants havebeen
  sanctioned freedom fighters pension (ason 31.5.2010). At
· present as many as 60000persons are getting pension or
  family pensionas freedom fighters/dependants. The
  averagepension of a freedom fighter and after his/              B
  herdeath to the spouse is Rs.12400/-p.m. and the average
  pension paid to a dependant unmarried daughter is
  Rs.3000 per month. The expenditure for the year 2009-
  2010 under the scheme was Rs.785 crores. We have
  referred to these figures only to showthat when false claims    C
  come to the notice of the Central Government, it is bound
  to take stern action. Any complacency on the part ofthe
  Government in taking action against bogus claims under
  any scheme would encourage bogus claims under all
  schemes.by undeserving candidates who are "well
  connected and influential". False claimants walking away        D
  with the benefits meant for genuine and deserving
  candidates has become the bane of several welfare
  schemes.

 10.xx xx xx                                                      E

 11. Grant of freedom fighters' pension to bogus claimants
 producing false and fabricated documents is as bad as
 genuinefreedom fighters being denied pension. The only
 way to respect the sacrifices of freedomfighters is to
                                                                  F
 ensure that only genuinefreedom fighters get the pension.
 This meansthat the Government should weed out false and
 fabricated claims and cancel the grant when the bogus
 nature of the claim comes tolight. In Union of India vs. Avtar
 Singh [(2006) 6 SCC 493) this Court therefore cautioned:         G

 "8 ....... The genuine freedom fightersdeserve to be treated
 with reverence, respectand honour. But at the same time
 it cannot be lost sight of that people who had no role toplay
 in the freedom struggle should not bepermitted to benefit
                                                                  H
    1158       SUPREME COURT REPORTS             (2014] 8 S.C.R.


A        from the liberal approachrequired to be adopted in the
         case of the freedom fighters, most of whom in the normal
         course are septuagenarians and octogenarians."

         13. In the facts and circumstances of this case, we have
B   no hesitation to restore the judgment and order passed by the
    Single Bench of the-High Court at Patna. The judgment;md
    order of the Division Bench is set aside. As the respondent has
    been wrongly allowed pension after rejecting claim at the first
    instance by the appellant, the High Court has directed suo motu
    inquiry and on this basis pension had been withdrawn, and also
C   considering the fact that the recipient of pension respondent
    No.1 has died, we direct that the amount paid to him shall not
    be recovered from his legal representatives.

         14. The appeal is accordingly allowed. No costs.
D
    Devika Gujral                                    Appeal allowed.