WEST BENGAL FREEDOM FIGHTERS' ORGANIZATIONversusUNION OF INDIA AND ORS.

     WEST BENGAL FREEDOM FIGHTERS' ORGANIZATION                           A
                                   v.
                    UNION OF INDIA AND ORS.

                          AUGUST 20, 2004

              [S.N. VARIAVA AND G.P. MATHUR, JJ.)                         B

     Swatantrata Sainik Samman Pension Scheme, 1980:

      Freedom Fighters-Pension for-Applicants for pension under the
Scheme were required to submit certificate from jail authorities, DM or C
State authorities and in its absence a Non-availability ofRecords Certificate
(NARC) along with a co-prisoner's certificate (CPC) viz;, two certificates
from freedom fighters who had proven jail suffering for one year or one
certificate from a sitting MP or MLA-Some freedom fighters applied for
pension under the Scheme-Supreme Court directed State Advisory D
Committee to verify the cases of these freedom fighters-It was found that
 most ofthe applicants had claimed to have gone underground-Certificates
required under the Scheme not submitted-Certificate from co-freedom
fighters only produced without submitting NARCs-Advisory committee,
 therefore, rejected the applications for pension-Validity of-Held: It is
 not possible for the Supreme Court to interfere as the State Advisory E
 Committee has come to a conclusion on the basis of available material-
 The decision of the Committee cannot be said to be perverse or one which
 no reasonable person could arrive at-Constitution ofIndia, 1950, Art. 32.

      The Government of India had announced a Scheme known as the F
Swatantrata Sainik Samman Pension Scheme, 1980 under which the
freedom fighters were to receive pension as mentioned in the Scheme.
Under this Scheme, the applicants had to furnish a certificate from the
jail authority, District Magistrate or the State Authorities. In the
absence of such a certificate a Non-availability of Records Certificate G
(NARC) along with a Co-prisoner's Certificate (CPC), namely, two
certificates from freedom fighters who had a proven jail suffering for
one year or one certificate from a sitting MP or MLA.

     The members of the petitioner-organization had applied for
pension under the Scheme. The petitioner filed a writ petition before H
                                   665
    666                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A this Court alleging that their applications were not being processed and
    that the State Government was not doing anything. This Court
    directed the State Government to appoint a State Advisory Committee
    to verify the cases of the members of the petitioner-organization. It was
    found that most of the applicants had claimed to have gone underground.
B   The applicants had also not produced the documents as required under
    the Scheme. All the applicants relied on certificates from co-freedom
    fighters without producing NARCs as required under the Scheme. The
    Committee, therefore, opined that none of the applicants were eligible
    for pension.

c         Dismissing the petition, the Court

         HELD: I. It is not possible for the Supreme Court to interfere as
    the State Advisory Committee has come to a conclusion on the basis of
    available material. The decision of the Committee cannot be said to be
D   perverse or one which no reasonable person could arrive at. (674-A]

          Mukund Lal Bhandari v. Union of India, (1993] Supp. 3 SCC 2,
    relied on.

E        Chaitnya Charan Das v. State of West Bengal, AIR (1995) Cal. 336;
    Gurdial Singh v. Union of India, (2001] 8 SCC 8; Union ofIndia v. Mohan
    Singh, (1996] 10 SCC 351 and State of Maharashtra v. Raghunath
    Gajanan, (2004) 6 SCALE 478, referred to.

f        CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 68 of
    1999.

          Under Article 32 of the Constitution of India.

          Jaideep Gupta, Rana S. Biswas and Mrs. Sarla Chandra for the
G   Petitioner.

        P.P. Malhotra, Additional Solicitor General, Heman! Sharma and Ms.
    Sushma Suri for the Respondent.

H         S.K. Bhattacharya (NP) for Respondent.
    WEST BENGAL FREEDOM FIGHTERS' ORG. v. U.0.1. (VARIAVA, J.] 667

     Janaranjan Das, Ms. Swetaketu Mishra and Ms. Moushumi Gahlot, A
for Mis. Sinha & Das for State of West Bengal.

     Mrs. Sunita Ray (NP)

     The Judgment of the Court was delivered by
                                                                           B
    S.N. V ARIAVA, J. : By this Writ Petition, under Article 32 of the
Constitution of India, the Petitioners seek the fol.Jowing relief:

        "To issue Writ/Order/Direction to the State Government to send
        reports about the freedom fighters to the Union Government to C
        expedite payment of Freedom Fighters Pension from the
        commencement of the Scheme from 1.8.80 to the petitioner
        organization being the freedom fighters."

     This Petition has been filed by the Association whose members claim D
to be freedom fighters.

      The Government of India had announced a Scheme known as the
Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter called the
'Scheme') under which freedom fighters were to receive pension as E
mentioned in the Scheme. Any person who had 'suffered a minimum
imprisonment of six months in the mainland jails before independence or
in case of SC/ST freedom fighter who had suffered minimum imprisonment
for three months is eligible to receive the pension. The manner of proving
claims is as follows:

        "The applicants should furnish the documents indicated below
        whichever is applicable in order to prove his claimed sufferings
        for_ grant of pension under the Scheme.

        (A) IMPRISONMENT/DETENTION :-                                      G

             Certificate from the concerned jail authority, District
        Magistrate or the State Government, indicating period of sentence
        awarded, date of admission, date of release and reasons for
        release, a Non-availability of Records Certificate (NARC) from H
    668                    SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A            the concerned authorities alongwith co-prisoners' Certificates
             (CPC) as under :-

                   i)    Two Co-prisoners' Certificates from the freedom fighter
                         pensioners who had a proven jail suffering of one year.
B
                                            or

                   ii)   One Co-prisoners' Certificate from a s1ttmg MP or
                         MLC or from an ex-MP or an ex-MLA specifying his
                         jail period and that of the applicant (Annexure-1 in the
c                        application form).

             (B) 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. In
D            the absence of such certificates from official records, a Non-
             availability of Records Certificate from the concerned authorities
             alongwith a certificate from a prominent freedom fighter who had
             undergone imprisonment for a period of at least two years or
             more."
E
  Thus, it is to be seen that the applicant has to furnish a certificate from
  the jail authority, District Magistrate or the State Authorities indicating the
  period of sentence awarded, date of admission, date of release and reasons
  for release and in the absence of such a certificate a Non-availability of
F Records Certificate (NARC) along with a Co-prisoners' Certificate (CPC),
  namely, two certificates from freedom fighters who had a proven jail
  suffering for one year or one certificate from a sitting MP or MLA or an
  ex-MP or ex-MLA. In case of persons having gone underground
  documentary evidence by way of proclamation of the applicant as an
  offender, announcing an award for his arrest or an order of detention. In
G the absence of official record a certificate from a prominent freedom
  fighter, who had undergone imprisonment for a period of at least two years,
  was to be given.

          All the members of the Petitioner Association had applied for
H pension.     It is their case that their applications were not being processed
    WEST BENGAL FREEDOM FIGHTERS' ORG. v. U.0.1. [VARIAVA, J.] 669

and that the State Government was not doing anything. This Court, by its A
Order dated 12th October, 2001, directed the State of West Bengal to
appoint a State Advisory Committee, if not already appointed, and further
directed the Committee to verify the cases of the members of the Petitioner
Association and communicate its opinion to this Court.
                                                                           B
     The State of West Bengal filed an affidavit on 4th February, 2002
wherein it was set out that the State Advisory Committee had considered
the cases of all and had rejected all the applications.

      This Court by its Order dated 15th February, 2002 directed the State C
Government to file a better affidavit giving full particulars regarding
verification. The State Government therefore filed another affidavit dated
22nd March, 2002 along with which they annexed a copy of the minutes
of the meeting of the State Advisory Committee, wherein it was, inter alia,
recorded that the Verification Report from DIG, JB/SP, DJB of the relevant
districts had been obtained. It was also observed that from the records D
available their claims were not corroborated and that the applicants had not
submitted official records as required under the Scheme and had also not
submitted NARCs as required under the Scheme. It was stated that for
these reasons the applications had been rejected.
                                                                           E
      By an Order dated 20th November, 2003, this Court asked the
Committee to supply details in respect of each applicant which lead to the
rejection of his claim. Pursuant to this direction, an affidavit dated 6th
January, 2004 has been filed. Along with this affidavit a chart giving the
names of the applicants, their claim, the report which was seen and the F
views of the Committee have been set out. From this chart it is to be seen
that except for a very small number of applicants all the other applicants
claim to have gone underground. It is also clear that none of the applicants
has produced documents as required by the Scheme. All of them only relied
on certificates from co-freedom fighters without having produced NARCs
as required under the Scheme.                                                G

     The above mentioned Orders of this Court and the Affidavits which
have been filed, in effect, work out the Writ Petition. As the State
Government and the State Advisory Committee have now opined that none
of the applicants was eligible no question arises of sending any report to H
    670                  SUPREME COURT REPORTS (2004) SUPP. 3 S.C.R.

A the Central Government for payment of pension.

        Faced with this situation, it was submitted that in a matter like this
  the Court should not look at technicalities but must look a. the substances
  of the Petition. It was submitted that the substances of the Petition was
B that pension as per the Scheme be paid to the freedom fighters. It was
  submitted that this Court has been passing the above mentioned Orders
  with this intention. It was submitted that, from the Affidavits which have
  been filed, it was clear that the Governments themselves were stating that
  no jail records were available in any of these cases and that the Committee
C had been only looking at some ;ecord maintained by the Intelligence
  Bureau. It was submitted that that was not a record contemplated by this
  Scheme and these were all cases where the official records were not
  available and therefore the certificates of Co-freedom Fighters should have
  been accepted.

D         Reliance was placed upon the case ofChaitnya Charan Das v. State
    of West Bengal reported in AIR (1995) Calcutta 336, wherein this Scheme
    was under consideration. In this case it was directed by the Calcutta High
    Court that an Advisory Committee be set up by the State Government for
    looking into the applications. It was further directed that once the
E   Government was satisfied about the genuineness and bonafide of a claim
    then payment had to be made. It was further directed that such payment
    must be p~id with interest at the rate of 9% p.a. from the date of filing of
    the application. It was also noted that the State Government and the Central
    Government were aware that in many cases records were not available. It
F   was held that in cases where the record was not available claim of the
    applicant supported by a personal knowledge certificate of a co-prisoner
    cannot be and should not be lightly disbelieved.

          Reliance was also placed upon the case of Gurdial Singh v. Union
    ofIndia reported in (200 I] 8 SCC 8. In this case the applications had been
G   accepted and pension had been granted with effect from 29th April, 1998
    instead of date of application i.e. 13th March, 1973. The applicant filed
    a Writ Petition seeking pension from the date of his application. The
    Government then issued a show-cause notice as to why his pension be not
    cancelled. In spite of his reply the Government proceeded to cancel its
H   earlier Order granting pension. This was challenged by the applicant.
         WEST BENGAL FREEDOM FIGHTERS' ORG. v. U.0.1. [VARIAVA, J.) 671

    Before this Court the Government tried to justify cancellation by showing A
    minor discrepancies and contradictions in the application. In this context,
    this Court held as follows:

                  "7. The standard of proof required in such cases is not such
            standard which is required in a criminal case or in a case B
            adjudicated upon rival contentions or evidence of the parties. As
            the object of the Scheme is to honour and to mitigate the
            sufferings of those who had given their all for the country, a
            liberal and not a technical approach is required to be followed
            while determining the merits of the case of a person seeking C
            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 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 D
            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 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 E
            claimant had suffered imprisonment for the cause of the country
            and during the freedom struggle, a presumption is required to be
            drawn in his favour unless the same is rebutted by cogent,


-           reasonable and reliable evidence.

                                                                              F
                  8. We have noticed with disgust that the respondent authorities
            have adopted a hypertechnical approach while dealing with the
            case of a freedom fighter and ignored the basic principles/
            objectives of the Scheme intended to give the benefit to the
            sufferers in the freedom movement. The contradictions and
            discn;pancies, as noticed hereinabove, cannot be held to be G
            material which could be made the basis of depriving the appellant
            of his right to get the pension. The case of the appellant has been
            disposed of by ignoring the mandate of law and the Scheme. The
            impugned order also appears to have been passed with a biased
            and closed mind, completely ignoring the verdict of this Court in H
    672                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A            Mukund Lal Bhandari case [1993] Supp 3 SCC 2. We further feel
             that after granting the pension to the appellant, the respondents
             were not justified in rejecting his claim on the basis of material
             which already existed, justifying the grant of pension in his
             favour. The appellant has, unnecessarily, been dragged to litigation
             for no fault of his."
B
          Strong reliance was placed upon the above mentioned observations
    of this Court and it was submitted that a sympathic approach must be
    adopted in such cases. It was submitted that the object being to honour and
C mitigate sufferings of those who had given their all for the country, a liberal
    and not a technical approach should be taken. It was submitted that once
    the Scheme had been announced with the intention of honouring the
    freedom fighters the object and purpose of the Scheme must be kept in
    mind and the case of the claimants under the Scheme must be determined
    on the basis of the probabilities and not on the basis of a test of beyond
D   reasonable doubt.

         On the other hand, Mr. P. P. Malhotra, learned ASG appearing for
    the Union ofindia, and Mr. Janaranjan Das, learned counsel appearing for
    the State of West Bengal submitted that this was not a case where records
E were not available. It was submitted that, in this case, the State Government
    had appointed a statutory Advisory Committee which had looked into all
    the applications. It was submitted that the applicants have not complied
    with the provisions of the Scheme inasmuch as they have not submitted

F
    the relevant documents. It was submitted that all the applicants have given
    certificates from co-prisoner without producing NARCs. It was pointed
    out that in most of the cases the applicants claim to have gone undergone
                                                                                    -
    and yet certificate has been giwn by a prisoner who was himself supposed
    to have been in jail. It was pointed out that the Government has noticed
    large scale fraud in claiming pension and has, therefore, laid down strict
    guidelines which have been followed by the Advisory Committee.
G
          Reliance was placed upon the case of Mukund Lal Bhandari v. Union
    of India reported in [1993] Supp. 3 SCC 2, wherein it has been held that
    the scheme mentions documents which are required to be produced before
    the Government. It has been held that it is not for Courts to scrutinize the
H   documents. It is held that it is for the Government to scrutinize the
     WEST BENGAL FREEDOM FIGHTERS' ORG. v. U.0.1. [VARJAVA, J.] 673

documents and pronounce upon their genuineness.                            A

      Reliance was also placed upon the case of Union of India v. Mohan
Singh reported in [1996] 10 SCC 351. In this case also the applications
had been made only supported by a certificate from a MLA and a co-
prisoner. The Government found the certificate to be insufficient to sustain B
the claim. The High Court, however, held that the certificates were
sufficient and directed payment of pension. Setting aside the Judgment of
the High Court, this Court noted the observations in Mukund Lal Bhandari 's
case (supra) and held that it was not for the High Court to embark upon
the appreciation of the evidence. It was held that once the Government C
concludes that the documents are not sufficient the High Court cannot
interfere.

      Our attention is also drawn to an unreported Order of this Court dated
24th September, 2003 in Civil Appeal No. 1850 of 1999. In this case, an D
application had been made under this very Scheme. There was no jail
record and only an affidavit of a person who had visited him in jail and
a certificate from the Head Master of a school had been submitted. This
Court taking note of the observations in Mukund Lal Bhandari 's case
(supra) held that proof as required under the Scheme had to be submitted. E
It was held that if proof as required under the Scheme was not submitted
benefit could not be granted.

      Reliance was also placed _upon the case of State of Maharashtra v.
Raghunath Gajanan rep011ed in (2004) 6 SCALE 478, wherein it has again
been reiterated that it is for the Government to be satisfied regarding F
genuineness of the claim and that -the Court cannot sit in judgment over
the decision of the State Government like an Appellate Authority. It has
been held that the Court cannot, while exercising writ jurisdiction, enter
into a re-appreciation of evidence and/or reverse findings arrived at by the
State Government, unless they be perverse or be such as no reasonable man G
acting reasonably could arrive at. In this case, the Court noted the
observations Gurdial Singh 's case (supra) and held that the observations
in Gurdial Singh 's case (supra) do not negate the standards laid down in
Mukund Lal Bhandari 's case (supra) and that those standards continue to
apply.                                                                       H
    674                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A       Having heard the parties, even presuming that the Petition was in
  effect for payment of pension, we find that it is not possible for this Court
  to interfere as the Committee has come to a conclusion on the basis of
  available material. The decision of the Committee cannot be said to be
  perverse or one which no reasonable person could arrive at. We therefore
B see no reason to interfere.
          We, however, record the statement of Mr. Janaranjan Das, learned
    counsel appearing for the State of West Bengal, that as per the recent policy
    decision of the Central Government all applications of persons who claim
    to have been interned, in jails in territories which are now in Bangladesh,
c   will be forwarded to the Central Government for their consideration.

         Accordingly, the Writ Petition stands dismissed. There will be no
    order as to costs.

D v.s.s.                                                     Petition dismissed.