Requirements Under Schemes Not To Be Insisted Upon Mindlessly: Karnataka High Court Directs State To Sanction 94-Yr Old Freedom Fighter's Pension

Petitioner Gundurao Desai had challenged an endorsement issued by the government in July 2019, rejecting his claim on the ground that he did not produce the affidavit of two persons who were detained with him because of their participation in the struggle for Independence of the country.

In this regard the Court said,

"The fulfilment of requirements of such Schemes should not be insisted upon mindlessly and impossibly. Ritualistic adherence to the conditions of State Policy, regardless of some of them being impossible of performance, is not the way a Welfare State is constitutionally expected to function."

It added,

"If the petitioner has crossed the age of 94 years, it sounds unjust & arbitrary, to say the least, to expect the co-detenues elder to him to be alive and much less available for swearing to an affidavit expected under the conditions of State Policy."

Significantly, the petitioner had made the claim for pension on March 19, 1998. However, the file was not processed till 2019. In respect of the belated action, the court said,

"Except that the file moved from this office table to that, nothing has happened though more than two decades have slipped away. At least, as a concession to the shortness of human life, things could have been accomplished in a few years, even if they were moved with snail speed; that did not happen, reveal the records."

State's Submission

Advocate Shridar Hegde, appearing for the state submitted: "The requirement of producing certain documents is a matter of State Policy that regulates grant of Freedom Fighters Pension and therefore the impugned endorsement which is structured on this requirement cannot be faltered."

Further, it was submitted that "An argument to the contrary has abundant abuse potential, inasmuch as even unscrupulous claims may be sustained and therefore no concession in matters of the kind can be shown as to the requirement of producing the necessary documents."

Findings

Junking the submission of the state government, the court observed,

"During the Freedom Struggle, several nationals sacrificed their lives, limbs & liberty and obviously their families too got affected; all this happened unseen & unsung; others who survived the struggle and lived after the Dawn of Freedom, needed to be protected, presumably they being incapable of paddling their life boats; therefore both the Central Government and the State Governments have promulgated Freedom Fighters Pension Schemes."

Relying on the Apex Court judgement in the case of E.P.Royappa v. State of Tamil Nadu, AIR 1974 SC 555, in which the court had said that all actions of the State be legislative or executive, should be animated by reason & justness, Justice Krishna S Dixit said,

"It is more so when the cause of Freedom Fighters who are in the late evening of their lives, is involved, the impugned Endorsement does not reflect this approach to the matter, more particularly when the Freedom Fighters are a vanishing class, majority of them having already closed their eyes, statistically speaking."

The court also opined that there was not much dispute as to petitioner being a nonagenarian;  and he having attained the age of 94 years is in the late evening of the life; the approach of State and its officials have to be very gentle & humane while considering the claim of such persons.

Noting the submission made by the petitioner that only one of the co-detenues is alive and others are dead & gone, the court said:

"That being the position, asking him to produce the affidavits of two co-detenues, virtually amounts to compelling him to retrieve the dead from their grave, infuse soul into their body and ask them to swear to the affidavit. This is an impossibility, at least with all the progress the medical science has till now achieved."

It was thus noted that,

"The approach of the statutory authorities to the compassionate policies of the State such as Freedom Fighters Pension Schemes should not hijack justice in the ritualistic adherence to the black letter of law and in a gross disregard to its spirit; otherwise, (to borrow the words of Justice Benjamin N. Cardozo), they may be likened to surgeons who would rather have their patients dead in accordance with the principles of surgery than live contrary to; that is not a happy thing to happen in an arguably sane world."

Noting that it was not the case of the respondents that the petitioner is guilty of fraud, fabrication, the court directed the state government to sanction the Freedom Fighters Pension to the petitioner with retrospective effect from 19.03.1998, "failing which they shall personally & collectively pay him Rs.1,000, for the delay of each day brooked; the said amount after payment may be recovered from the erring officials in accordance with law".

The court clarified that it was open to the Respondents to solicit any document/information from the side of petitioner, as are required for accomplishing the mandated task, however subject to the rider that in the guise of such solicitation no delay shall be brooked.

Case Title: Gundurao Desai v. State Of Karnataka

Case No: Writ Petition No. 7498 Of 2021

Appearance: Advocate CM Nagabhushana For Petitioner; Advocate Shridhar Hegde For Respondents

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