Orissa HC Orders Release Of Benefits With Arrears To 100-Yr-Old Freedom Fighter Denied Pension For Lack Of Incarceration Proof

In a notable order, the Orissa High Court has come to the relief of a centenarian freedom fighter who was denied pension and other benefits by the State and Union Governments for want of proof of his incarceration during the struggle for freedom, as per the existing rules.

While highlighting the noble objects with which the pension schemes have been framed, Justice Sashikanta Mishra in his order observed –

“…it would be too much to expect the petitioner to produce clear-cut or cogent proof regarding his incarceration in the jail nearly 80 years ago. It is therefore, necessary that the petitioner's claim must be considered favourably without adopting a strict or technical approach.”

Background

The petitioner claimed to have participated in the freedom movement of the country and remained underground during the period from 01.09.1942 to 05.10.1943 and imprisoned in Baripada Central Jail for seven days and also during 1941-42.

After independence, the Government of India, in order to give benefit to the freedom fighters framed a scheme called the Freedom Fighters' Pension Scheme, 1972, which provided for grant of pension to those freedom fighters whose annual income did not exceed Rs.5000/-. Subsequently the Swatantra Sainik Samman Scheme, 1980, was formulated and adopted on 01.08.1980.

On 19.07.1988, a co-prisoner of the petitioner, who was lodged in the Baripada Central Jail, swore an affidavit before the Executive Magistrate, Baripada, stating therein that when he was detained in the said jail and the petitioner was also detained therein, who was convicted for 7 days under the Forest Laws of Mayurbhanj in Goyal (Gayal/Bison) shooting case at Bangra.

He further stated that more than 300 persons were convicted by the then SDO, Udala and the petitioner was one among them. Also, the petitioner was lodged in the Central Jail of Baripada during 1941- 42, when the deponent was a political prisoner.

The petitioner submitted an affidavit on 27.07.1988 sworn by him for grant of Freedom Fighters' Pension by stating the above facts. Since no positive step was taken by the authorities, he made representation to the Chief Minister seeking his intervention. He ran from pillar to post praying for grant of the pension, but in vain. Getting no other alternative, he ultimately knocked at the portals of the High Court.

Senior Advocate C.A. Rao, who appeared for the petitioner, argued that the authorities have adopted a 'hyper-technical approach' to reject the claim of the petitioner even though the same is genuine and otherwise proved from the co-prisoner's affidavit submitted by him long ago.

He further underlined that the object of the Scheme is to honour and mitigate the sufferings of those who had given their all for the country and therefore, a liberal and not technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme.

He placed reliance on Kamalbai Sinkar v. State of Maharashtra & Ors. to submit that the case of the claimants under the Scheme is required to be determined on the basis of probabilities and not subjected to the test of beyond reasonable doubt.

Therefore, he submitted, the Court must acknowledge the fact that the petitioner has produced the affidavit sworn by one co-prisoner which clearly shows that he was imprisoned in Baripada Jail being a Praja Mandal activist. Furthermore, the jail authorities also failed to produce documentary evidence regarding imprisonment of the petitioner. Therefore, he vehemently contended that the centenarian cannot be expected to produce strict evidence of his claim.

On the other side, the Additional Government Advocate (AGA), appearing for the State Government, argued that since it is mandatory that the claimant must have been imprisoned for at least six months and as there is no proof that the petitioner was imprisoned for such period, his claim was rightly not considered. He further pointed out that against the requirement of furnishing two co-prisoners' certificates, the petitioner produced one and thereby failed to meet the eligibility criteria.

He again submitted that even though the petitioner claims to have been underground for over period of one year during the freedom movement, yet he neither produced primary nor secondary evidence as provided in the Scheme as well as the guidelines and therefore, his claim cannot be entertained. The Deputy Solicitor General of India (DSGI), appearing for the Union Government, also supported the contentions made by the AGA.

Findings

The Court noted that the petitioner's claim is two-fold – firstly, he was underground from 01.09.1942 to 05.10.1943 and secondly, he was lodged in Baripada jail for 7 days in connection with an agitation against the Forest Laws of Mayurbhanj and again during 1941-42 as a Praja Mandal activist.

Justice Mishra went through Clauses 4 and 9 of the Swatantrata Sainik Samman Pension Scheme, 1980, which provided eligibility and modality of proof of claims respectively. After perusing the aforesaid provisions, he noted that undoubtedly the petitioner has not adduced any proof in support of his claim of remaining underground for the period indicated above. However, he produced an affidavit sworn by one his co-prisoners, who was receiving the pension from the Central Government as well as the Government of Odisha.

The Court referred to the guidelines issued by the Freedom Fighters Division, Ministry of Home Affairs on 15.09.2006 which unequivocally states that the scheme's objective is to honour genuine freedom fighters without harassment or delay and also to distinguish between fake and genuine claimants.

“Before proceeding further, this Court observes that significantly, the claim of the petitioner has not been rejected for being fake but was turned down only on the ground of non-production of proof regarding the required period of imprisonment. There is otherwise no material on record to suggest that the claim of the petitioner is not genuine,” the Court observed.

In this context, the Court referred to the following observation made by the Supreme Court in Gurdial Singh v. Union of India & Ors:

“Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such 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 touch- stone of the test of beyond reasonable doubt.”

Notably, the Court had asked the State Counsel to produce information regarding the petitioner's incarceration in Baripada Jail but jail authorities categorically stated that the relevant information is not available in their files as it relates to an incident which is more than 79 years old.

The Single Bench, thus, held that when the jail authorities themselves are unable to trace records relating to their own jail, it is too much to expect a 100-year-old man to collect and produce proof regarding his incarceration almost eight decades back.

“In fact, the very ideals that inspired the freedom movement have been acknowledged by the Constitution as something to be remembered and cherished by the citizens as a Fundamental Duty. Article 51- A(b) of the Constitution enjoins upon the citizens to cherish and follow the noble ideals which inspired our national struggle for freedom,” it added.

Therefore, the Court was of the view that though the exact period of imprisonment is not proved, but it is certain that the petitioner had been incarcerated in Baripada jail in connection with Praja Mandal movement. Also, there is some material on record to show that he is revered and respected as a freedom fighter in his locality.

“Thus, taking an overall view of the matter, the insistence of the authorities for adducing strict proof of his claim by the petitioner does appear to be quite harsh and in any case, serves to frustrate the very object of the Scheme,” it observed.

Accordingly, the respondent authorities were directed to sanction Freedom Fighters' pension in favour of the petitioner from the date of his application with all arrears.

Case Title: Chakradhar Pradhan v. Union of India & Anr.

Case No: W.P.(C) No. 23220 of 2013

Date of Judgment: December 23, 2024

Counsel for the Petitioner: Mr. C.A. Rao, Senior Advocate with M/s. Sarat Kumar Behera & S.K. Parida Advocates

Counsel for the Respondent: Mr. P.K. Parhi, DSGI with Mr. S.S. Kashyap, Central Government Counsel; Mr. S. Behera, Addl. Government Advocate

Citation: 2024 LiveLaw (Ori) 98

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