Madras High Court: In a writ appeal filed by Ministry of Home Affairs (‘MHA’) against the order of the Single Judge, wherein the Court allowed the writ petition filed by the respondent 1 challenging the order of the MHA rejecting the claim for Freedom Fighters Pension under the Swatantrata Sainik Samman Yojana (‘SSSY’), the division bench of Sanjay V. Gangapurwala and D. Bharatha Chakravarthy*, JJ. upheld the impugned order, with the modification that the respondent 1 will be entitled for arrears of pension with effect from 19-03-2018.
Background:
The writ petitioner was a member of the Indian National Army, having joined the Indian Independence League under the leadership of Nethaji Subash Chandra Bose in 1943. He had applied for pension, both under the State Government Freedom Fighters’ Allowance Scheme and under the SSSY. However, no orders were passed and therefore, earlier he approached this Court by filing a writ petition. The Single Judge noted that while the eligibility of the respondent 1, that he was the member of the Indian National Army, and that he suffered incarceration in Rangoon Jail for a period of more than 6 months, is not denied, his case has been rejected only on the ground that the co-prisoners’ certificates furnished by him were not given by the persons who had suffered the requirement of one year imprisonment. The Single Judge took into consideration that those two co-prisoners had suffered incarceration for about 8 months and since their incarceration exceeds six months and as it is impossible for the respondent 1 to produce direct evidence of incarceration from the jail authorities, allowed the writ petition and restricted the arrears of pension only from the date of application, i.e., 04-02-2003. Aggrieved by the same, the present writ appeal was filed.
Analysis:
The Court noted that the Government of India, originally framed a Freedom Fighters’ Pension scheme, 1972, which was later modified and re-notified as SSS Yojana, 1980 with effect from 15-08-1981. Under the said scheme, pension is granted to Freedom Fighters’, at the rates notified and modified sometimes.
Further, it noted that Freedom Fighters who suffered minimum imprisonment of six months are eligible. They are required to apply in the form contained in Annexure III. The Court said that the primary mode of proving, was to obtain a certificate from the Jail Authority concerned or District Magistrate or the State Government or to obtain a non-availability of Record Certificate from the authorities concerned along with the co-prisoners certificate. The Court added that the above requirement is primarily concerned with Freedom Fighters who have suffered imprisonment in the mainland jails. The Scheme do not specifically consider the method of primary proof in respect of the INA personnel, who suffered imprisonment outside India.
The Court remarked that in such cases it is the Central Government which has the means to verify the facts from other countries such as Myanmar and obviously the Freedom Fighters cannot produce any certificate from Jail Authority or District Judge or the State Government. Nor those authorities can issue any Certificate. Thus, while the mainland prisoners have the primary mode of proving their claim either by producing the primary evidence or in the absence of the same, secondary mode of co-prisoners’ certificate, in the case of members of the INA such as the respondent 1, the only possible mode by which they can prove is by producing the co-prisoners’ certificate.
The Court said that strict insistence upon the criteria that co-prisoners should have a proven jail suffering of one year, would become a condition of eligibility rather than a method of proof. Therefore, the scheme must be read harmoniously and in the present case, where the co-prisoners have suffered a term slightly less than one year, the same cannot be put against the respondent 1, who is otherwise eligible for pension.
The Bench noted that the District Collector who conducted on-field inquiry was satisfied with his eligibility and the State Government has also recommended it. Thus, the Court upheld the Single Judge order.
Further, it said that respondent 1 would be entitled to arrears from the date of the earlier Order dated 19-03-2018., as the present writ petition is the second round and earlier, another writ petition was filed which was disposed of with a direction to consider and pass orders by an order dated 19-03-2018.
[Under Secretary to Govt. of India v. R.K. Venkatachalam, 2024 SCC OnLine Mad 275, decided on 15-02-2024]
*Judgment Authored by: Justice D. Bharatha Chakravarthy
Advocates who appeared in this case :
For the Appellant: Deputy Solicitor General R. Rajesh Vivekananthan
For the Respondents: State Government Pleader A. Edwin Prabhakar
