BAIDYANATH MAHTO Vs ANIL GOSWAMI & ORS -Judgment by Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 11 December 2023
Judgment pronounced on : 31 January 2024
+ CONT.CAS(C) 760/2014
BAIDYANATH MAHTO ….. Petitioner
Through: Mr. I.C. Mishra and Mr. Rajan
Singh, Advs.
versus
ANIL GOSWAMI & ORS ….. Respondents
Through: Ms. Arunima Dwivedi, CGSC
with Ms. Pinky Pamar and Mr.
Aakash Pathak, Advs. for UOI
+ CONT.CAS(C) 762/2014
RAJDHAR JHAR @ JAY NARAYAN JHA ….. Petitioner
Through: Mr. I.C. Mishra and Mr. Rajan
Singh, Advs.
versus
ANIL GOSWAMI & ORS ….. Respondents
Through: Ms. Arunima Dwivedi, CGSC
with Ms. Pinky Pamar and Mr.
Aakash Pathak, Advs. for UOI
+ CONT.CAS(C) 763/2014
MITHU MAHTO ….. Petitioner
Through: Mr. I.C. Mishra and Mr. Rajan
Singh, Advs.
versus
ANIL GOSWAMI & ORS ….. Respondents
Through: Ms. Arunima Dwivedi, CGSC
with Ms. Pinky Pamar and Mr.
Aakash Pathak, Advs. for UOI
+ CONT.CAS(C) 764/2014
PARO DEVI W/O LATE PURAN MAHTO ….. Petitioner
Through: Mr. I.C. Mishra and Mr. Rajan
Singh, Advs.
versus
ANIL GOSWAMI & ORS ….. Respondents
Through: Ms. Arunima Dwivedi, CGSC
with Ms. Pinky Pamar and Mr.
Aakash Pathak, Advs. for UOI
+ CONT.CAS(C) 765/2014
KISAN MAHTO ….. Petitioner
Through: Mr. I.C. Mishra and Mr. Rajan
Singh, Advs.
versus
ANIL GOSWAMI & ORS ….. Respondents
Through: Ms. Arunima Dwivedi, CGSC
with Ms. Pinky Pamar and Mr.
Aakash Pathak, Advs. for UOI
+ CONT.CAS(C) 766/2014
SITA RAM MAHTO ….. Petitioner
Through: Mr. I.C. Mishra and Mr. Rajan
Singh, Advs.
versus
ANIL GOSWAMI & ORS ….. Respondents
Through: Ms. Arunima Dwivedi, CGSC
with Ms. Pinky Pamar and Mr.
Aakash Pathak, Advs. for UOI
+ CONT.CAS(C) 767/2014
RAM KHELAWAN MAHTO ….. Petitioner
Through: Mr. I.C. Mishra and Mr. Rajan
Singh, Advs.
versus
ANIL GOSWAMI & ORS ….. Respondents
Through: Ms. Arunima Dwivedi, CGSC
with Ms. Pinky Pamar and Mr.
Aakash Pathak, Advs. for UOI
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
JUDGEMENT
CM APPL. 28125/2015 (for revival of petition) in CONT.CAS(C)
760/2014
CM APPL. 28120/2015 (for revival of petition) in CONT.CAS(C)
762/2014
CM APPL. 28115/2015 (for revival of petition) in CONT.CAS(C)
763/2014
CM APPL. 2167/2016 (for revival of petition) in CONT.CAS(C)
764/2014
CM APPL. 28117/2015 (for revival of petition) in CONT.CAS(C)
765/2014
CM APPL. 2170/2016 (for revival of petition) in CONT.CAS(C)
766/2014
CM APPL. 28127/2015 (for revival of petition) in CONT.CAS(C)
767/2014
1. This Judgment shall decide the above-noted applications which
have been moved seeking revival of the instant batch of Contempt
Petitions that had been preferred under Sections 12 and 13 of the
Contempt of Courts Act, 19711, for non-compliance with the order of
this Court dated 13.03.2013 in Writ Petition (Civil) No. 3448/2010.
Needless to state that these contempt petitions raise common
questions of law and facts, and therefore, can be conveniently
disposed of by a common judgment. The instant contempt petitions
seek common prayers that the orders passed by respondents No. 3 and
4 on 02.08.2013 and 14.08.2013 be quashed and set aside, as they are
in contravention to the directions passed by this court in the above
mentioned Writ Petition; and it is prayed that the pension of the
petitioners be regularized/released from 1981 till 15.05.2010 i.e. the
date of filing of the Writ Petitions.
1 CC Act
BRIEF FACTS:
2. These applications for revival of the Contempt Petitions relate
to the grant of pension to Freedom Fighters under the Swatantrata
Sainik Samman Pension Scheme2 which was introduced by the
Central Government on 15.08.1981. The scheme in question was
formally known as the Freedom Fighters Pension Scheme, 19723. The
petitioners were not entitled to claim pensionary benefits under the
1972 Scheme but its revision/modification resulted in introduction of
the SSS scheme, whereby provisions have been made for the grant of
life long pension to freedom fighters of the Indian Independence
Movement, along with their wife/widow and dependent family
members.
3. Briefly, stated, the petitioners herein had preferred Writ
Petitions, bearing Nos. WP (C) 3448/2010, WP (C) 3446/2010, WP
(C) 3998/2010, WP (C) 3987/2010, WP (C) 7771/2011 respectively,
claiming themselves to be freedom fighters and seeking grant of
pension under the SSS Pension Scheme, wherein vide order dated
13.03.2013, the following directions were passed in common in each
of the above noted Writ Petitions:
2 SSS Pension Scheme
3 FFPS
�8. The writ petition is allowed. The petitioner be granted the
pension under the Swatantra Sainik Samman Pension Scheme,
1980�81 in accordance with law. In case, the pension scheme
contemplates grant of pension from the day of making of the
application, petitioner will be granted the same from the day of
making of application in as much as the petitioner had made
application way back in the year 1981 and delay of the respondents
to dispose of the application till 2010 cannot mean that the
petitioner, who is otherwise entitled to the Swatantra Sainik
Samman Pension will not be granted the pension in accordance
with law as per the Scheme.�
4. Subsequent to the aforesaid orders of this Court, Respondent
No. 4 issued identical orders dated 02.08.2013, with reference to the
order dated 13.03.2013, granting lifetime pension to the petitioners in
WP (C) 3448/2010 as well as the other above noted Writ Petitions @
Rs. 6330/- per month (Rupees Six Thousand Three Hundred and
Thirty), with effect from the date of filing of the Writ Petition, i.e.
15.05.2010.
5. The orders were received by Respondent No.3/Government of
Bihar, Office of the Home Secretary on 14.08.2013, and thereafter, the
concerned department regularised/released the pension due to the
petitioners from the date of filing of the Writ Petition. It is also
apposite to note that this Court vide order dated 28.09.2015 recorded
the undertaking of Mr. RBS Negi, Deputy Secretary to the effect that
the SSS Pension along with arrears would be released to the
petitioners as per directions contained in paragraph (8) of the order
dated 13.03.2013, and consequently the present batch of Contempt
Petitions were disposed of. However, the petitioners are up in arms
again complaining continued non-compliance of the orders of this
Court, AND seek revival of the contempt petitions.
6. On a perusal of the record, the following information regarding
the claim applications made by the petitioners are borne out from the
record, and tabulated below:
S.
No.
Case and Party Name
Date of
Application
Supporting Documents
Submitted
1.
CONT.CAS (C) 760/2014
Baidyanath Mahto
07.06.1981
Remained underground
from 18.08.1942 to
31.05.1946.
Copy of Extract of Order
Sheet in GR No. 881/42.
Personal Knowledge
Certificates (PKCs) of
Shri Bhagirath Jha and
Shri Yamuna Singh
2.
CONT.CAS (C) 762/2014
Rajdhar Jha
26.07.1981
Remained underground
from 18.08.1942 to
31.05.1946.
Copy of Extract of Order
Sheet in GR No. 882/42.
Personal Knowledge
Certificates (PKCs) of
Shri Bhagirath Jha, Shri
Probodh Narayan Jha
and Shri Sheetal Prasad
Singh
3.
CONT.CAS (C) 763/2014
Mithu Mahto
24.12.1981
Remained underground
from 18.08.1942 to
31.05.1946.
Copy of Extract of Order
Sheet in GR No. 881/42.
4.
CONT.CAS (C) 764/2014
Paro Devi w/o Late Puran
Mahto
15.12.1981
Remained underground
from 18.08.1942 to
31.05.1946
Copy of Extract of Order
Sheet in GR No. 881/42.
5.
CONT.CAS (C) 765/2014
Kisan Mahto
15.10.1981
Remained underground
from 18.08.1942 to
31.05.1946.
Copy of Extract of Order
Sheet in GR No. 881/42.
Personal Knowledge
Certificates (PKCs) of
Shri Sheetal Prasad
Singh, Shri Premchander
Mishra Shastri and Shri
Vasudev Prasad Mehto
6.
CONT.CAS (C) 766/2014
Sita Ram Mahto
24.12.1981
Remained underground
from 18.08.1942 to
31.05.1946.
Copy of Extract of Order
Sheet in GR No. 881/42.
Personal Knowledge
Certificates (PKCs) of
Shri Premchander
Mishra Shastri and Shri
Vasudev Prasad Mehto
7.
CONT.CAS (C) 767/2014
Ram Khelwan Mahto
05.07.1981
Remained underground
from 18.08.1942 to
31.05.1946.
Copy of Extract of Order
Sheet in GR No. 881/42.
Personal Knowledge
Certificates (PKCs) of
Shri Bhagirath Jha and
Shri Yamuna Singh
ISSUE:
7. The fundamental issue before this Court in the instant batch of
petitions is with respect to the effective date of sanction from which
pension under the SSS Pension Scheme is payable to the petitioners.
To put it in proper prospective: Whether the pension is to be paid to
the petitioners/freedom fighters in the present matter, payable from the
date of filing of the application under the scheme or from the date of
filing of WP (C) 3448/2010?
LEGAL SUBMISSIONS ADDRESSED:
8. It is submitted by learned counsel for the petitioners that they
are freedom fighters who sacrificed their lives, peace and comfort
during the Quit India Movement in 1942; that they remained
underground for fear of being caught by the Police at the behest of
British regime. Learned counsel for the petitioners has countenanced
that although pension has been granted to them, the respondents vide
the orders dated 02.08.2013 and 14.08.2013 sanctioned the pension
from the date of filing of the Writ Petition whereas the order dated
13.03.2013 contemplated the pensions to be paid from the date of
filing of applications under the scheme in 1981.
9. In support of the submissions made, learned counsel for the
petitioners relied on the judgement in the case of Mukund Lal
Bhandari v. Union of India & Ors.4 and it was urged that the
Supreme Court held that the pension should be paid to the applicant
from the date of the application. Further, reliance has also been placed
on the judgements in Satish Chandra Mishra v. Union of India &
Ors.5 as well as in Heera Singh v. Union of India6, wherein in both
cases the benefits under the scheme were granted from the date of
application. It has also been submitted on behalf of the petitioners that
the Revised Policy Guidelines in 2014, which have been filed by the
respondents in their reply, is not a legal document and has neither
been approved by the Union Cabinet nor been published in the
Official Gazette.
10. Per contra, it is submitted on behalf of the respondents that the
pension of the applicants could not be regularised from the date of the
application as there were several anomalies in the applications made.
It is further stated by learned counsel for the respondents that evidence
put forth by the applicants at the time of making their applications for
pension under the SSS Scheme, was only in the nature of secondary
evidence; and that no primary or cogent evidence was furnished on
their behalf, therefore, making them ineligible as per the requirements
prescribed in the scheme. It was urged that despite the fact that there
was deficiency in the evidence provided, and the pension has been
granted to them on the basis of benefit of doubt, and the pension can
only be payable from the date of the order granting them their claim.
11. The respondents filed a reply affidavit, dated 20.03.2015,
4 AIR 1993 Supreme Court 2127
5 [164 (2009) DLT 172]
6 WP (C) 2934/2013
wherein it has been stated that the original court records relating to
GR Nos. 821/42 and 822/42, on the basis of which the petitioners
herein had initially made their applications seeking pension claiming
that they had faced underground suffering, had been destroyed per the
Record Retention Schedule. Since the documents relied upon could
not be verified, the extracts of Court Records furnished by the
applicants could not be deemed as authentic. Therefore, on
examination by the State Government, the cases of the petitioners
seeking pension were considered to be doubtful due to the fact that the
primary documents and evidence on the basis of which the
applications were made were not verifiable.
12. Learned counsel for the respondent has also alluded to the
Revised Policy Guidelines for Disbursement of Central Samman
Pension Scheme dated 06.08.2014, which was promulgated by the
Ministry of Home Affairs vide a notification bearing No.45/03/2014 –
FF(P). It is submitted that as per the Revised Policy, in disputed cases
where the applications were initially rejected by the competent
authority, but subsequently came to be granted vide favourable court
orders, the principles laid down in the case of Union of India v.
Kaushalya Devi7 are to be followed in determining the date from
which pension is to be paid. In this regard, the policy states as follows:
(i) In case of Primary Evidence – Pension shall be paid from the date
of Application.
(ii) In case of Secondary Evidence – Pension shall be paid from the
date of Court Order.
(iii) In case of doubtful nature of evidence – Pension shall be paid from
the date of Court Order.
7 (2007) 9 SCC 525
13. In support of the submissions made, learned counsel of the
respondent placed reliance on the decision in the case of Government
of India v. KV Swaminathan8, wherein it was held by the Supreme
Court that in a case where the claim is allowed on the basis of benefit
of doubt, the pension shall be granted from the date of the order by
which such claim is allowed, and not from the date of the application.
Reliance is also placed on decision in the case of Union of India v.
Kaushalya Devi, wherein it was held that since the claim was allowed
on the basis of secondary evidence, that being the oral statement of
some other detenue, and not on the basis of any jail certificate
produced by the claimant, therefore, the pension should be granted
from the date of the order and not from the date of the application.
14. Furthermore, reliance has also been placed on the order dated
27.09.2010, wherein the Supreme Court in the case of Mahender
Singh v Union of India9. In addition to the abovementioned decisions
of the Supreme Court, the decision of this court in the case of Shri
Bhola Jha v. Union of lndia and Ors.10 has also been relied on
where, in which in somewhat likewise fact scenario, it was opined that
the pension would be payable from the date of filing of the writ
petition and not from the date of the application.
8 1990 (10) SCC 190
9 Civil Appeal No. 5215 of 2009
10 WP (C) No. 3453/2010
ANALYSIS AND DECISION:
15. I have given my anxious consideration to the submissions
advanced by the learned counsels for the rival parties at the Bar. I
have gone through the entire record of the case as also the case law
cited at the Bar.
16. First things first, the direction dated 13.03.2024 by this Court
was categorical to the effect that the pension would be granted from
the date of making of the application, provided that the same is
sanctioned or contemplated by the pension scheme. Otherwise the
pension would be payable from the date of filing of the Writ Petition.
The said aspect brings us to first appreciate the broad contours of the
scheme, which provides as under:-
�Swatantrata Sainik Samman Pension Scheme 1980 FORMERLY
KNOWN AS FREEDOM FIGHTERS PENSION SCHEME, 1972
INTRODUCTION
During Twenty fifth anniversary (Silver Jubilee Year) of
Independence a Central Scheme for the Grant of Pension to
Freedom Fighters and their families from Central Revenues was
introduced by the Government of India. The Scheme commenced
from 15th August, 1972 and provided for the grant of pension to
living freedom fighters and their families; if they are no more
alive, and to the families, of martyrs the minimum quantum of
pension sanctioned to a freedom fighter be Rs. 200 p.m. and in case
of families varied from Rs. 100 to Rs. 200 in accordance with the
size and number of eligible dependents in the family. Till 31st July,
1980 the Freedom fighters pension was a admissible only to those
who were in need of financial assistance on account of their
meager annual gross income. Thus an annual income ceiling of Rs.
5000 was enforced for eligibility to pension. From 1-8-1980, the
benefit of the pension Scheme has been extended to all freedom
fighters as a token of SAMMAN to them.
2. ENHANCED RATE OF PENSION (Not relevant)
3. WHO ARE ELIGIBLE DEPENDENTS?
For the purpose of grant of Samman pension, family includes (if
the freedom fighters is not alive) mother, father, widower/widow if
he/she has not since remarried, unmarried daughters.
Not more than one eligible dependent can be granted pension and
in the event of availability of more than one dependent the
sequence of eligibility will be widow/widower, unmarried
daughters, mother and father.
4. WHO IS ELIGIBLE?
For the purpose of grant of Samman pension under the
scheme, a freedom fighter is:-
(a) A person who had suffered a minimum imprisonment of six
months in the mainland jails before Independence. However, ex-
INA personnel will be eligible for pension if the
imprisonment/detention suffered by them was a outside India.
(b) The minimum period of actual imprisonment for eligibility
of pension has been reduced to three months, in case of women and
SC, India freedom fighters from 1-8-1980.
EXPLANATION
1. Detention under the orders of the competent authority will
be considered as imprisonment.
2. Period of normal remission upto one month will be treated
as part of actual imprisonment.
3 In the case of a trial pending in conviction under trial period
will be counted towards actual imprisonment scheme.
4. Broken period of imprisonment will be totaled up for
computing the qualifying period.
(b). A person who remained underground for more than six
months provided he was :
1. A proclaimed offender; or
2. One on whom an award for arrest/had was announced;
or
3. One for whose detention order was issued but not served.
India A person interned in his home or externed from his district
provided the period of internment/externment was six months or
more.
(d) A person whose property was confiscated or attached and
sold due to participation in the freedom struggle
(e) A person who became permanently incapacitated during
firing lathi chare.
(f) A person who lost his job (central or State Government)
and thus means of livelihood for participation in national
movement.
A MARTYR is a person who died or who was killed in action or
in detention or was awarded capital Punishment while Participation
in a National Movement for emancipation of India. It will include
an ex-INA or ex-Military person who died fighting the British.
5. WHAT ARE THE MOVEMENTS/MUTINIES
CONNECTED WITH NATIONAL FREEDOM
STRUGGLE (Not relevant)
6. HOW TO APPLY (Not relevant)
7. HOW TO RECEIVE PENSION (MODE OF
PAYMENT) (Not relevant)
8. DURATION (Not relevant)
17. Along with the SSS Scheme, the Central Government has also
brought out the salient features (Annexure-5 in CONT. CAS(C)
760/2014), which reads as under:-
l. SALIENT FEATURES OF SWATANTRATA SAINIK
SAMMAN PENSION SCHEME. 1980
During the Silver Jubilee year of Independence a Central Scheme
for grant of pension to freedom fighters and their eligible
dependents (Where freedom fighters have already expired) was
introduced by Government of India with effect from 15.08.1972. In
1980, the Scheme was liberalized and renamed as “Swatantrata
Sainik Samman Pension Scheme,1980” (the Scheme) and made
effective from 01.08.1980. Several provisions of the Original
Scheme have been modified and clarified since then through
different orders and circulars of the Govt. of India. Salient features
of the basic provisions of the Scheme, as amended up to date, are
as follows-
2. Who is eligible for Samman Pension
All the persons who participated in the freedom movement
in some way or the other are not eligible for Samman Pension.
Only following category of freedom fighters are eligible for the
Samman Pension under the Scheme subject to furnishing of the
specified evidences:-
2.1 Eligible dependents of martyrs:- A martyr is a person
who died or who was killed in action or in detention or was
awarded capital punishment due to participation in the freedom
struggle of India. Relevant documents from official records and
newspapers of the relevant time are considered as evidences in
such cases.
2.2 Imprisonment:- A person who had suffered minimum
imprisonment of six months (3 months in case of women, SC/ST
freedom fighters) on account of participation in freedom struggle
subject to furnishing of the following evidences:-
(a) Imprisonment/detention certificate from the concerned jail
authority, District Magistrate or the State Govt. indicating the
period of sentence awarded, date of admission, date of release,
facts of the case and reasons for release.
(b) In case records of the relevant period are not available, the
secondary evidences in the form of 2 co-prisoner certificates (CPC)
from freedom fighters who have proven jail suffering of minimum
1 year and who were with the applicant in the jail could be
considered provided the State Government/Union Territory
Administration concerned, after due verification of the claim and
its genuineness, certifies that documentary evidences from the
official records in support of the claimed sufferings were not
available. In case the certifier happens to be a sitting or Ex. M.P./
M.L.A., only one certificate in place of the two is required
2.3 Underground:- A person who on account of his
participation in freedom struggle remained underground for more
than six months provided he was;
A. a proclaimed offender; or
B. one on whom an award for arrest/head was announced; or
C. one for whose detention, order was issued but not served.
Explanation:
Voluntary underground suffering or self-exile suffering for party
work under command of the party leaders, are not covered as
eligible sufferings for pension under the Central Scheme.
The claim of underground suffering is considered subject to
furnishing of the following evidence:-
(a) Documentary evidence by way of Court’s /Govt.’s orders
proclaiming the applicant as an absconder, announcing an award
on his head or for his arrest or ordering his detention.
(b) In case records of the relevant period are not available,
secondary evidence in the form of a Personal Knowledge
Certificate (PKC) from a prominent freedom fighter who has
proven jail suffering of a minimum two years and who happened to
be from the same administrative unit could be considered provided
the State Government/Union Territory Administration concerned,
after due verification of the claim and its genuineness, certifies that
documentary evidences from the official records in support of the
claimed sufferings were not available.
2.4 Internment/Externment (Not relevant)
2.5 Loss of property (Not relevant)
2.6 Permanent incapacitation (Not relevant)
2.7 Loss of Government Job (Not relevant)
2.8 Canning/Flogging/Whipping (Not relevant)
3. Procedure
Persons who consider themselves eligible for Samman Pension
under the Scheme and desire the Samman Pension, should apply in
duplicate on the prescribed application form. The application, duly
filled in and supported with required documents as proof of claim
of suffering, should be sent to the Chief Secretary of the concerned
State Government/Union Territory Administration. A copy of such
application should be sent to the Deputy Secretary to the
government of India FF Division, MHA, New Delhi as an advance
copy. However, claims can be processed by the Central Govt
only on receipt of verification & entitlement to pension report
from the State Govt./U. T. Administration concerned. In case
the requirements of the Scheme are fulfilled, Samman pension is
granted to the applicant.
4. Acceptability of Secondary Evidence
Secondary evidences can be considered only if supported by a
valid Non-Availability of Records Certificate (NARC). The
provisions of the Scheme were clarified to the State Governments
in several circulars of the Govt. of India, gist of which is available
in the Appendix attached herewith. The instructions on NARC
were reiterated by the Govt. of India, Ministry of Home Affairs,
vide Circular No. 8/12/95-FF(P) dated 2.11.98, relevant extracts of
which are reproduced as follows-
“As per the scheme, claims of the applicants for samman pension
are required to be supported by the duly verified official records of
the relevant times. Only in case of non availability of such records,
secondary evidences, as specified, in the scheme, can be made
basis of such claims. However, due care and caution is required in
such cases in view of several instances of bogus/forged claims
which have come to the notice of the Central Government. It is of
utmost importance that before recommending such cases, complete
facts of the case in which the applicant claims involvement, are
verified from all the agencies which could have been concerned
with the matter. These may include the police station concerned,
the District administration, the jurisdictional court, competent
authority issuing detention order, the advisory board/appellate
court, prison authorities, and intelligence agencies. Discrete
enquiry should also be made to ascertain genuineness of the claims.
The NARC should be issued only after the above verification. It is
reiterated that the NARC should invariably be worded as follows
“All concerned authorities of the State Government who could
have relevant records in respect of the claim of the applicant,
have been consulted and it is confirmed that the official records
of the relevant time are not available”
18. A careful perusal of the scheme would show that it does not
specifically lay down any stipulation with regard to the date from
which the pension would be payable. In other words, it does not
specifically lay down that the pension would be payable from the date
of the application. The scheme provides an elaborate procedure for
making claims as well as the evidentiary requirements that are to be
submitted for being considered eligible for the scheme. It would be
expedient to note that the Central Government had considered the
claims of the petitioners herein, on mere reference by the appropriate
State Government authority and had issued detailed letters to each of
the claimants/freedom fighters assigning reasons as to why their
claims had been denied, and yet the claims were eventually approved
subsequent to directions of this Court dated 13.03.2013, purportedly
extending the benefit of doubt to the claimants. While denying the
claim for pension under the SSS Pension Scheme, the concerned
authority took into consideration the requisite procedure of filing a
claim, as also the requirements necessary to be eligible under the
scheme and addressed to the each of the petitioners. For now, we
allude to such letter by the Central Government in CONT.CAS(C)
760/2014, wherein it observed as under:
�5. After examination of the claim, it is found that Shri Baidya
Nath Mehto is not eligible for grant of Central Samman pension
due to the following shortcomings/ discrepancies:-
(i) He has not furnished record-based primary evidence, duly
verified by the State Government, in support of his claimed
underground suffering. He has submitted a copy of extract of order
sheet of GR. No. 881/42 which is not acceptable as the State
Government has not verified the document from official records (as
indicated in para 4 above).
(ii) In addition, the document i.e. extract of GR. No. 881/42
furnished by the applicant in support of his claimed underground
suffering, does not indicate the exact period of his underground
suffering. It does not indicate whether Shri Baidya Nath absconded
on being (i) a proclaimed offender (ii) one on whom an award for
arrest/head was announced; or (iii) one whose detention order was
issued but not served, which is a mandatory requirement for
sanction of pension under the provisions of the Scheme. It also
does not indicate the parentage of the claimant to ensure the
genuineness of the person. As such, this cannot be accepted as a
record based document for establishing his eligibility for grant of
pension.
(iii) He has not furnished a valid Non-availability of Records
Certificate NARC) from the State Government (i.e.. the competent
authority), having all ingredients prescribed therefor (as indicated
in para 4 above).
(iv) In the absence of a valid NARC, secondary evidence, i.e.,
Personal Knowledge Certificates ( PKCs), cannot be considered
and are not acceptable. However, copy of the PKCs submitted by
him from S/Shri Bhagirath Jha and Yamuna Sungh have been
scrutinized. The same arc not acceptable as the certifiers have not
furnished any record /evidence of their own jail suffering of
minimum two years (i.e., They have furnished no evidence to
establish that they are eligible certifiers) (as indicated in para 4
above). Further, these are also not acceptable as the certifiers are
confirming underground suffering of the applicant for most of the
period when they themselves have stated to have been in Jail. This
view has even been upheld by the Hon’ble Patna High Court in C.
W. P. no 10450/2000 in case of Sh. Hari Nandan Singh Vs U. O.1.
& others vide judgment dated 23.10.2000:
“This court fails to appreciate as to how such a certificate
could be granted by Sri Sahdeo Singh when during most of
the said period he was himself in Jail custody as is evident
from his own certificate quoted above. This, in my opinion,
shows the scheme for the grant of Samman pension is being
completely misused so much so that even freedom fighter –
who has been granted Samma pension also grants such
certificate for which they cannot be said to be competent in
the facts and circumstances aforementioned.�
(v) State Government has not given its specific recommendation
for grant of Samman pension in his case. (Earlier recommendation
dated 14.5.1998 cannot be treated as valid since GR could not be
verified by the State Govermnent in its later report).
6. In view of the above the claim Shri Baidya Nath Mehto
does not meet the eligibility criteria and evidentiary requirements
of the Swatantrata Sainik Samman Pension Scheme, 1980.
7. It is, therefore, regretted that it is not possible to accept the
claim of Shri Baidya Nath Mehto for grant of Central Samman
pension from Central Revenues. Hence, the same is, hereby,
rejected.�11
11 Each individual petitioner was addressed a similar letter denying their claim for pension from
the date of application, with the same observations inter alia delving into the authenticity of the
evidence produced.
19. In the said backdrop, let us consider entire gamut of the �SSS
Scheme” which has come up for consideration in a catena of cases
decided by the Apex Court as also by this Court. It is pertinent to
mention that the earlier scheme i.e. FFPS, came up for consideration
before the Supreme Court in the case of Mukund Lal Bhandari
(supra), wherein the petitioners claimed that they had participated in
the Arya Samaj Movement in the late 1930s in the erstwhile Nizam
State of Hyderabad. It was observed that the aforesaid scheme had
been modified by the Government of India by introducing the �SSS
Scheme”, thereby enhancing the pension amount. The grievance of
the petitioners was that their claims had been rejected inter alia on the
grounds that the same had not been submitted within the prescribed
period of time. It was in the aforesaid backdrop that the following
observations came to be passed:
�4…… Coming now to the last contention advanced on behalf of the
Government, viz., that the benefit of the scheme should be
extended only from the date the claimant produces the required
proof of his eligibility to the pension, we are of the view that this
contention can be accepted only partially. There have been cases,
as in the present case, where some of the claimants had made their
applications but either without the necessary documentary proof or
with insufficient proof. It is unreasonable to expect that the
freedom fighters and their dependents would be readily in
possession of the required documents. In the very nature of things,
such documents have to be secured either from the jail records or
from persons who have been named in the scheme to certify the
eligibility. Thus, the claimants have to rely upon third parties. The
records are also quite old. They are bound to take their own time to
be available. It is, therefore, unrealistic to expect that the claimants
would be in a position to produce documents within a fix time
limit. What is necessary in matters of such claims is to ascertain
the factum of the eligibility. The point of time when it is
ascertained, is unimportant. The prescription of a rigid time-
limit for the proof of the entitlement in the very nature of things is
demeaning to the object of the Scheme. We are, therefore, of the
view that neither the date of the application nor the date on which
the required proof is furnished should make any difference to the
entitlement of the benefit under the Scheme. Hence, once the
application is made, even if it is unaccompanied by the
requisite eligibility data, the date on which it is made should be
accepted as the date of the preferment of the claim whatever
the date on which the proof of eligibility if furnished �
{BOLD PORTIONS EMPHASIZED}
20. Based on the aforesaid observations, the following directions
were passed:
�6. We decline to go into the facts of the individual petitioners in
this petition and direct the respondents as follows:
[a] The respondents should accept the applications of the
petitioners irrespective of the date on which they are made.
The applications received hereafter should also be entertained
without raising the plea that they are beyond the prescribed
date.
[b] The respondents should scrutinise every application and
the evidence produced in support of the claim and dispose it
of as expeditiously as possible and in any case within three
months of the receipt of the application, and the documents
proof keeping in view the laudable and sacrosanct object of
the Scheme.
[c] The pension should he paid to the applicant front the date
on which the original application is received whether the
application is filed with or without the requisite evidence.
The sanction of tile pension would, however, he subject to
the requisite proof in support of the claim. The respondents
are directed to dispose of the cases of the individual
petitioners in the present petition in the light of the above
directions at the latest within two months from today.
The petition is disposed of accordingly with no order as to
costs.
21. However, what needs to be underlined at this juncture is that in
the aforesaid case there was sufficient primary evidence indicating
that the petitioners had suffered as freedom fighters and were
subjected to atrocities by the official machinery of the erstwhile Ruler.
The scheme then came to be considered in the case of KV
Swaminathan (supra)12. It was a case where the claim of the freedom
fighter had remained pending for consideration for a long time and
eventually although he was granted pension on 18.11.1989, he
claimed that pension was payable from the date of application. It was
held as under:-
12 Delivered on 18.11.1996
�In the impugned order the High Court has directed to pay the
pension from the date of the application. The controversy is no
longer res integra. This Court had considered the entire
controversy in Union of India v. M.R. Chelliah Thevar [C.A. No.
7762/96] decided on April 30, 1996 and held thus:
�Heard counsel for both side. On behalf of the Union of
India strong reliance is placed on the placed on the
decision of the Division Bench of this Court dated 24th
April, 1995. On the other hand, learned counsel for the
respondent placed reliance on an earlier judgment of this
Court in Mukund Lal Bhandari & Ors. vs. Union of India
& Ors. 1993 Supp. (3) 2, as well as the decision in
Amarnath dated 19th October, 1994. The distinction,
however, is that in the case relied on by the Union of
India, the respondents were granted the benefit under the
policy not because it was a clear case of the respondents
being doubt was given and hence the pension was
restricted from the date of application. In the two cases
relied on by the respondents, there was no question of the
benefit having been founded on a establish that the
petitioners were freedom fighters but on the liberal
ground of giving them the benefit of the order. We are,
therefore, of the opinion that there is a distinction between
the decision relied on by the learned Additional Solicitor
general on decisions relied on by the respondent. In the
instant case, since the benefit of doubt was given and the
status of freedom fighter was recognised on that basis, the
case would be covered by the first mentioned decision
dated 24th April, 1995 (Union of India vs. Ganesh
Chandra Dolai &Ors.)”
In view of the above settled legal position, though the respondent
was not entitled to the pension as a freedom- fighter, he was given
the relief on the basis of benefit of doubt. Therefore, he is entitled
to the pension only from the date of the order and not from the date
of the application. We are informed that pursuant to the order of
the High Court, the amount has been released. Under this
circumstance, the appellant is directed to deduct the paid amount
proportionately from the amount payable in every month, instead
of asking him to refund the amount.
The appeal is accordingly allowed. No costs.�
22. In a latter case of Kaushalya Devi (supra),13 the same question
came up for consideration: �whether the freedom fighters” pension
scheme should be granted to the respondent from the date of the
application or the date of order granting pension�? It is pertinent to
mention that it was a case where the claim was not based on an
original jail certificate evidencing detention but oral evidence of
others, which did not inspire confidence. Relying on the decision in
the case of KV Swaminathan (supra), it was reiterated that where a
claim is allowed on the basis of benefit of doubt, the pension should
be granted not from the date of the application, but from the date of
passing of the order. The decision in Mukund Lal Bhandari (supra)
was distinguished to the effect that it laid down that �the pension
cannot be granted from any date prior to the application but that does
not mean that it cannot be granted from a date subsequent to the
application�. In the case of Mahender Singh v. Union of India,14 the
petitioner had filed an application for pension under the scheme on
07.09.1981. The State Government recommended that the pension
should be granted w.e.f. 01.08.1980. However, his pension was not
determined by the Central Government subsequent to which,
13 Date of decision 15.02.2007
14 Civil Appeal No. 5215 of 2009 decided on 27.09.2010
representations were preferred, which went in vain and eventually he
challenged the decision of the Central Government not granting him
the pension. It was held by the Supreme Court that since the
petitioner freedom fighter had failed to give relevant details as to the
period of detention undergone by him and his failure to supply names
of other freedom fighters who had gone underground, the
recommendations of the State Government for grant of pension to the
petitioner were not binding. It would be expedient to reproduce the
relevant observations, which read as under:
�8. Insofar as the Personal Knowledge Certificate (PKC) of
Shri Jagdish Singh, it is the stand of the Government of India that
the same is not acceptable as the certified was in jail for most of
the period of the claimed suffering of the appellant. In view of the
same, it could not be possible for the certified to verify the period
as well as the reasons of the claimed suffering of the appellant
based on his (Jagdish Singh) personal knowledge.
9. Though the State Advisory Committee and the Government
of Bihar recommended the case of the appellant for Central
Scheme it is pointed out that by the learned counsel for the
respondent that the same is not binding on the Central Government
the absence of required proof for the same. In other words, the
recommendation of the State Government is not final or conclusive
and it is for the authority of the Central Government granting such
pension to make further inquiry in the matter in terms of various
conditions prescribed in the Scheme and to take final decision.
10. In the light of the above discussion, we conclude that the
appellant has failed to establish his claim for freedom fighter
pension in terms of the Central Scheme, on the other hand, we are
in agreement with the conclusion arrive at by the Division Bench
of the High Court. Consequently, the appeal fails and same is
dismissed. No order as to costs.�
23. At this juncture, we consider the case of Sh. Sukhai Thakur v.
Union of India & Ors.15 decided by a Division Bench of this Court,
15 LPA No. 372/2012 decided on 02.11.2012
in somewhat similar circumstances as those which have been espoused
in the present petitions. In the aforesaid case, the appellant had
claimed that he had participated in the Quit India Movement, 1942
along with his colleagues and he had been instrumental in dismantling
the communication network of the British Government. He claimed
that he remained underground and a Non-Bailable Warrant had been
issued against him. Further, he was also declared a proclaimed
offender resulting in not only attachment of his property but also
harassment of his family members. The case of the appellant did not
find favour with the learned Single Judge of this Court since the
original documents of the Court record in respect of GR-834/1942
were not submitted. In the absence of primary evidence and the
requisite NARC16 from the concerned State Government/Union
Territory Administration, the claim was rejected. In the appeal, it was
claimed that the relief had already been granted to two other freedom
fighters, namely Mr. Anandi Mahto and Mr. Panak Lal Sahu, whose
names were indicated in GR No. 834/1942, and therefore, there was
no reason for insisting upon the primary documents. This Court
observed as under:-
16 Non Availability of Record Certificate
�9. The counsel for the Central Government has produced the
original file relating to Mr. Anandi Mahto before us and which has
been scanned by us. We find the said file to be also containing the
same photocopy i.e. the extract from the order sheet dated
07.12.1962 in OR No.834/1942 on which the appellant basis his
claim. The notings in the said file record that the original OR
No.834/1942 is on the file of Mr. Manohar Lai Yadav and on the
basis thereof pension was sanctioned with effect from the year
1998, even though Mr. Anandi Mahto had also applied in the year
1981.
10. The counsel for the respondent has been unable to show as to
why, : when on the basis of the same document and facts, pension
was sanctioned to Mr. Anandi Mahto, it should not be sanctioned
to the appellant.
11. We accordingly set aside the order dated 11.04.2012 of the
learned Single Judge and allow W.P.(C) No.2022/2012 filed by the
appellant by quashing the letter dated 14.12.2007 of the
respondents No.l&2 of rejection of the claim for SSS Pension of
the appellant. Though the appellant had claimed pension from the
year 1981 and though pension on similar facts was sanctioned to
Mr. Anandi Mahto with effect from 1998, but Owing to the delay,
laches and acquiescence on the part of the appellant in preferring
the writ petition only in the year 2012 inspite of rejection of his
claim on 14.12.2007,we direct payment of pension to the appellant
with effect from the date of filing of the writ petition i.e.
01.04.2012. We further direct that subject to the appellant
complying with the formalities if any required to be complied with
in this regard, the arrears of pension be released to the appellant
within six weeks from today and future pension be also disbursed
as per the Scheme. The respondents No.l&2 having rejected the
claim of .the appellant inspite of the appellant being similarly
placed as Mr. Anandi Mahto, we also impose costs of Rs.25,000/-
payable by the respondents No.1&2 to the appellant within six
weeks from today.�
24. Suffice to state that in the case of Bhola Jha v. Union of India
& Ors.17 and Biltu Roy & Anr. v. UOI & Ors.18, the authenticity of
GR Case Nos. 822/1942 and 834/1942 was not in dispute and a bare
reading of the same showed the details of the claimants/freedom
fighters, on the basis of which pension had been allowed to be
disbursed as per the scheme.
25. The aforesaid chronology of the decisions by the Apex Court as
well as this Court clearly bring out that although no period for
lodging a claim is provided, in cases where the claim is based on
cogent primary evidence, the date of application shall be the decisive
17 WP (C) No. 3453/2010 decided on 16.01.2013
18 WP (C) No. 4344/21010 decided on 16.01.2013
date from which pension would be payable. However, where �benefit
of doubt� is accorded to a claimant in a case wherein unsatisfactory
secondary evidence is brought forth, in such cases, taking a liberal
view and keeping in mind the beneficial nature of the scheme, the date
of filing of the Writ Petition or the date of passing of a favourable
order, as the Court may provide, shall be the relevant date for the grant
of pension.
26. In view of the foregoing discussion, in each of the instant
contempt petitions before this Court, no primary record has been
verified by the State Government. Evidently, the original record is
shown to have been destroyed. Even otherwise, claims put forth by the
petitioners are not backed by fellow freedom fighters. The GR
receipts upon which reliance is placed do not indicate any names and
details of the freedom fighters either. Although, there are serious
disputes with regard to the genuineness of the claims, yet each of the
petitioners herein have been accorded benefit of doubt and been
granted pension from the date of filing of the Writ Petition.
27. At this juncture, it would be relevant to refer to the decision in
the case of Union of India v. Krishna Modi & Anr.19 wherein the
Supreme Court was dealing with an issue regarding grant of pension
to a freedom fighter who claimed to have suffered eight months of
confinement in the freedom movement in the year 1942 and it was
observed as under:-
19 Civil Appeal No. 909 of 2022 dated 03.02.2022
�It is further contended that for being eligible, what was required
was that a person should have remained underground for more than
six months, provided he was a proclaimed offender; or one on
whom an award for arrest/head was announced; or one for whom
detention order was issued but not served, which, according to the
learned ASG, was not so in the case of the respondent no.1. He
also submitted that in the absence of the respondent no. 1 having
furnished the Non-availability of Record Certificate (NARC), the
case of the respondent no. 1 could not have been considered merely
on the basis of certificate issued by the freedom fighters who had
undergone imprisonment for five years or more. 5 Learned counsel
has submitted that the freedom fighters, who had allegedly issued
the certificate, were themselves in custody during the period in
question when the respondent no. 1 claims to have remained
underground, and since the persons issuing the certificate were
themselves in jail, they could not have certified that the respondent
no.1 was underground during such period.�
28. Further, it was observed that the State Government had not
made any recommendation but had merely forwarded the application
of the respondent freedom fighter to the Central Government.
Incidentally, in the instant matters too, the State Government has not
carried out any independent inquiries to verify the genuineness of the
claims submitted. The said course of action was not approved by the
Supreme Court and it was observed as under:
�We are conscious of the fact that those persons who had
participated in the freedom struggle of our country, because of
which we got independence, should certainly be honoured and if
they are entitled to any benefits, which includes pension, they
should definitely be provided such benefit. However, such benefits
should be awarded only to those persons who are entitled for the
same under any Scheme of the Government. This Court in the case
of �Union of India Versus Avtar Singh� (2006) 6 SCC 493, has
in paragraph no. 8 of the said judgment held as under:
�8. ����The genuine freedom fighters deserve to be
treated with reverence, respect and honour. But at the same
time it cannot be lost sight of that people who had no role to
play in the freedom struggle should not be permitted to
benefit from the liberal approach required to be adopted in
the case of the freedom fighters, most of whom in the
normal course are septuagenarians and octogenarians.�
29. In view of the aforesaid discussion, although this Court fully
understands the sacrifices that have been made by each of the
petitioners, but with a heavy heart, it is not legally possible to grant
them any relief. At the cost of repetition, the �SSS Scheme” does not
specifically provide for the grant of pension from the date of
application by the beneficiary. Further, the case law discussed above
bring to the fore that where secondary evidence is produced, benefit of
doubt may be extended for the purpose of according sanction to grant
pension, and the same is payable from the date of filing of the writ
petition. The plea of the petitioners that the pension should be made
payable from the date of moving of application is patently untenable
in law. Hence, there are no legal grounds to hold that the respondents
are guilty of committing contempt of the directions passed by this
Court dated 13.03.2013.
30. Accordingly, the respective applications for revival of the
Contempt Petitions are hereby dismissed and disposed of accordingly.
DHARMESH SHARMA, J.
JANUARY 31, 2024
Sadique