BRAHMA DUTT MISHRA Vs. UNION OF INDIA

JUDGEMENT

(1.) Swatantrata Sainik Samman Pension Scheme introduced by the Government of India intended to provide pension to freedom fighters and their families. The spirit underlying the scheme was to honour those who had participated in. the freedom struggle and made sacrifices for the liberation of the country from foreign rule. It was also intended to mitigate in some measure the sufferings of those who had given everything that they had when the country required the same. Claims for payment of pension under the scheme when filed were at times looked at with a sense of cynsism by powers that be in the bureaucracy. Proof regarding satisfaction of the conditions subject to which the pension could be sanctioned was demanded and the evidence furnished by the claimant weighed the golden scales in the process of arriving at a conclusion whether the person concerned was or was not a freedom fighter. In Gurdial Singh v. Union of India & Ors., JT 2001 (8) SC 165, the Supreme Court dispelled the impression that the standard of proof required in such, cases was the same as was required in criminal cases or in cases involving' adjudication of rival contentions. The court held that claims for payment of pension under the scheme had to be determined on the basis of probabilities and not upon proof beyond reasonable doubt. The following passage from the said decision cleared the mist surrounding the determination and award of pension to the claimants under the scheme:-

(2.) The petitioner in the present case is also one of the claimants for the grant of pension under the scheme aforementioned. Upon consideration, the Government of India had in terms of a communication dated January 1, 1975 rejected the claim on the ground that he was not covered by the scheme as he had not spent 6 months in jail - a requirement which was essential for declaring him as a freedom fighter. On receipt of the said communication, the petitioner filed a representation inter alia pointing out that the requirement of undergoing imprisonment for six months was not mandatory so long as the claimant had been sentenced to imprisonment of six months or more. This representation, it appears, was not considered by the Government of India forcing the petitioner to file CW 444/1996 for a mandamus directing the Government to consider the same and to communicate the result of the consideration to him. A.D. Singh J., as His Lordship then was, allowed the said petition by an order dated 12th March, 1996 and by a mandamus directed the respondents to consider the representation made by the petitioner in the light of the decision of the Supreme Court in Surja & Ors. v. Union of India & Ors., JT 1991 (4)SC 184. Nearly two years after the said direction was issued, the Government of India passed an order on 3rd March, 1997 provisionally sanctioning a sum of Rs. 1500/- towards pension under the scheme in favour of the petitioner. The order stated that the grant of pension was subject to verification report of the State Government as regards the eligibility of the petitioner and was liable to be cancelled or modified if it was found that the sanction had been wrongly granted or that it was granted on the basis of information that was false. The petitioner, accordingly started receiving the amount of pension @ Rs. 1500/- per month till he received a notice in October 2000 calling upon him to show cause why the sanction of the pension in his favour be not cancelled and the amount paid to him recovered. It was pointed out that petitioners' incarceration in the jail was limited to four months only as against six months stipulated under the scheme. The petitioner, it appears, submitted his reply to the said show cause notice placing heavy reliance upon the decision of the Supreme Court in Surja's case (supra) in which their lordships had, while interpreting the scheme, held that what was important was that the person concerned should have been convicted and ordered to suffer imprisonment for more than six months and not that he had actually undergone the sentence awarded to him. Convicts who were enlarged from the jail without claiming any remission even before the expiry of the period for which they were sentenced also were entitled to the benefit of pension. The ratio of the decision is found in the following passage extracted from the said decision :-

(3.) The Government of India did not, however, find favour with the representation filed by the petitioner with the result that the pension sanctioned in his favour was recalled in terms of an order dated 30th May, 2001 with the direction that the amount drawn by the petitioner should be recovered from him together with interest. One of the main reasons which the Government advanced in support of its decision was that the period of actual suffering in the jail undergone by the petitioner was limited to a period of four months only as confirmed by the State Government which was not, according to the Government, sufficient to entitle him for payment of pension under the scheme. The decision of the Supreme Court in Surja's Case (supra) did not prove of any benefit to the petitioner in the light of a subsequent decision delivered by their lordships in Union of India & Ors. v, Manohar Lal Azad, (CA No. 6210/2000 disposed on 2nd November, 2000), in which the Court held that the entitlement of a freedom fighter for payment of pension under the Swatantrata Sainik Samman Pension Scheme would arise only in case the claimant had actually undergone suffering in jail for a period of six months or more. The decision in Surja's case (supra) was held to have been delivered in the peculiar circumstances of that case. The following passage from the said judgment, is in this connection instructive :-