P P CHOCKALINGA NADAR Vs. GOVT OF INDIA

JUDGEMENT

(1.) The petitioner has come forward with this writ petition for the issuance of a writ of certiorarified mandamus to call for the records of the case from the file of the first respondent dated 6-3-1974 and made in letter No. 29/1/ Genl/73 FF.VIII and quash the same as illegal and direct the respondents to pay pension under the Freedom Fighters Pension Scheme, 1972 from December, 1974 till the lifetime of the petitioner.

(2.) In the affidavit filed in support of the writ petition the petitioner has stated that he had joined the freedom struggle and he participated in the 'Quit India Movement' in 1942. He was convicted and sentenced to undergo rigorous imprisonment for a period of six months and was confined in Aliepuram Camp Jail, Bellari. The first respondent evolved a scheme known as "Freedom Fighters" Pension Scheme, 1972, which provides for the grant of pension to living freedom fighters, their families if they are no more alive and to family of martyrs. The minimum pension payable to the freedom fighters is Rs. 200/- per month which has been raised from 1-8-1980 to Rs. 300/- per month. The petitioner has alleged that Lakshmipathi Raju, Ex. M.L.A. Palani and N. Ramkrishnan, former member of the Rajya Sabha were with him in Alipuram jail as co-prisoner during 1942-43. P. Kakkan, former President of Tamil Nadu Congress Committee has also issued a certificate evidencing the imprisonment of the petitioner at Alipuram Jail. It is stated that the petitioner was sanctioned pension under the scheme in November, 1973 with effect from 15-8-1972 and he was in receipt of the same till December, 1974. It was suspended by the first respondent, pending further orders. Subsequently, the first respondent cancelled the order sanctioning pension. The first respondent also ordered recovery of the pension paid to the petitioner. Before suspending the pension amount the first respondent did not issue any show cause notice to find out the position but in an arbitrary manner unilaterally cancelled the pension. The petitioner has been repeatedly requesting the first respondent to consider his case. The petitioner has also produced several co-prisoners certificates before the 1st respondent drawing his attention about his joining in the freedom struggle and further undergone rigorous imprisonment of more than six months. The petitioner refers to some orders in writ petitions particularly to W.P. No. 3017 of 1983. In similar circumstances, Sathiadev, J., allowed the writ petition and quashed the cancellation order. It is stated the first respondent erred in law in passing the order cancelling the provisional pension granted to the petitioner without assigning any valid reason. The petitioner states he was not afforded any opportunity to explain his position and as such the impugned order is liable to be quashed. It is also alleged, the impugned order is violative of Art. 14 of the Constitution inasmuch as it is passed arbitrarily and persons who are co-prisoners have been granted pension from December, 1974 whereas the petitioner was denied of the pension without giving any reason therefor. Though the petitioner has produced the extract of "Who's Who" of Freedom Fighter published by the Government of Tamil Nadu and also certificates issued by the co-prisoners, the first respondent has erroneously cancelled the pension without any valid reason. It is also stated that the petitioner is not in receipt of pension from December, 1974.

(3.) Notice of motion was ordered by me on 8-8-1989. The first respondent has filed a counter affidavit wherein it is stated that the petitioner applied for freedom fighters' pension in August, 1972 on the basis of jail sufferings for six months in Alipuram (Bellary) Jail. It is stated that he was sanctioned a pension of Rs. 200/- per month from 15-8-1972 on the basis of secondary evidence produced by him pending State Government's verification report. In December, 1973, the Government of Tamil Nadu forwarded their verification report stating that the petitioner had not produced any satisfactory evidence to prove his claim of having undergone imprisonment for six months and that the Superintendent, Central Jail, Bellary had reported that his name did not figure in the registers of 1942 of the Alipuram Camp Jail. The State Government, therefore, did not recommend the case of the petitioner for the grant of pension. In view of the report of the State Government, payment of pension was suspended in March, 1974 which was subsequently cancelled in December, 1976. It is stated that the evidence for the claim of freedom fighters' pension is the suffering in the jail and in this behalf no such evidence was produced by the petitioner. On the other hand, the Superintendent, Central Prison, Bellary, stated that the name of the petitioner did not find place in the jail records. Though initially, provisional pension was granted on the collateral evidence of certificates produced by the petitioner, the same was suspended and cancelled finally in view of the report of the State Government. No reliance could be placed on the co-prisoners' certificates and personal knowledge certificates produced by the petitioner. Co-prisoner's certificate can be taken into consideration only when the evidence from official records are not available due to non-availability of the said records of jail. It is also admitted in the counter in paragraph 7 that no show cause notice was given to the petitioner before the order of cancellation of the provisional pension originally granted to him.