Case details

Court: Supreme Court of India
Decided: 22 February 2021
Bench: Ashok Bhushan
Citations: 2021 INSC 109[2021] 3 S.C.R. 796
Type: Judgment (Appeal(s) allowed)

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Citation: [2021] 3 S.C.R. 796 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

UNION OF INDIA versus A. ALAGAM PERUMAL KONE & OTHERS on 22 February 2021

Cites 3, Cited by 0

[2021] 3 S.C.R. 796

SUPREME COURT REPORTS

[2021] 3 S.C.R.

UNION OF INDIA

A. ALAGAM PERUMAL KONE & OTHERS

(Civil Appeal No.680 of 2021)

BFEBRUARY 22, 2021

[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]

Freedom Fighter Pension: Claim for pension underSwatantrata Sainik Samman Pension Scheme – First respondent atfirst instance had applied for grant of pension in the year 1997Cclaiming that he was underground during the Quit India Movementof 1942 i.e. during the period from August, 1942 up to a period ofmore than six months – Non-Availability of Records Certificate(NARC) from the Government was not produced along with the firstapplication and merely a certificate, certified by the C.J.M.,DMadurai, was produced – The first application, which wasforwarded to the appellant, was without any specificrecommendation – Claim was considered and rejected – The saidorder became final and the same was not questioned – Nearly after13 years of such rejection, first Respondent again claimed pensionunder the Swatantrata Sainik Samman Pension Scheme on the pleaEof his imprisonment for more than six months for participating inthe Quit India Movement – In the said application, he stated that hewas imprisoned for more than six months i.e. from 05.01.1944 to05.07.1944, which was in variance to the period which he hasmentioned in the first application – Without issuing notice andFwithout giving opportunity to the appellant to file counter affidavit,High Court disposed of petition by granting pension – On appeal,held: Claim of the first Respondent was under the scheme, notifiedby the appellant-Government – The scheme prescribes to file certaindocuments to authenticate the imprisonment of a claimant as afreedom fighter – Whether the claimant fulfills the criteria or not, itGis for the competent authority to examine it – Moreover, when theapplication of the first Respondent was already rejected in the year1997, when such rejection order became final, it was not open forthe first Respondent to make a claim for second time for pensionagain by way of fresh application – When such serious factualHdisputes emerge for consideration, the High Court ought not to have

disposed of the petition filed by the Respondent without even issuingnotice and giving opportunity to file counter affidavit to rebut theallegations made by the appellant.

Allowing the appeal, the Court

HELD: 1. Whether the claimant fulfills the criteria or not,it is for the competent authority to examine it. Even before theapplication is considered by the competent authority, in exerciseof powers of judicial review, the High Court should not have issuedany directions for grant of pension. In this case, it is also to benoticed that earlier the claim of the 1[st] Respondent is alreadyrejected and the said order has become final. After perusal of theorder passed by the learned Single Judge and the Division Bench,we are of the view that no valid reasons have been assigned togrant relief to the 1[st] Respondent for grant of pension. It appearsthat the 1[st] Respondent has not disclosed his earlier rejection byproducing the earlier orders while making the application for thesecond time before the appellant and also before the High Court.[Para 25][803-E-G]

2. In any event, when such serious factual disputes emergefor consideration, the High Court ought not to have disposed ofthe petition filed by the Respondent without even issuing noticeand giving opportunity to file counter affidavit to rebut theallegations made by the appellant. [Para 26][803-H; 804-A]

3. In the instant case, the appellant stands on a betterfooting, for the reason that although the application made by the1[st] Respondent on 10.04.1997 was rejected and the said orderhas become final, he again approached the appellant with the samerequest. Even before the Competent Authority considers theapplication, the 1[st] Respondent approached the High Court byfiling Writ Petition and the High Court, not only entertained thepetition, but disposed of the same without even notice andopportunity of filing counter affidavit to the appellant. Even theDivision Bench of High Court has not considered various groundsraised by the appellant, while confirming the order of the SingleJudge. [Paras 28, 29][804-D-F]

4. It may be true that the 1[st] Respondent is getting pensionas per the scheme, mooted by the State, but, at the same time, to A

BCDE

Aclaim pension under the scheme of 1980, the 1[st] Respondent hasto furnish the required proof as contemplated under the scheme.When the claim is under a particular scheme, unless one fulfillsthe eligibility criteria for grant of pension, as mentioned in thescheme, no applicant can claim such pensions, as a matter of right.[Para 30][804-G]B

W.B. Freedom Fighters’ Organization v. Union of Indiaand Others 2004 (7) SCC 716 : [2004] 3 Suppl. SCR665; Union of India v. Bikash R. Bhowmik and Others2004 (7) SCC 722; Union of Indiav. Sitakant S.Dubhashi and Anr. 2020 (3) SCC 297: [2020] 3CSCR 736 – referred to.

Case Law Reference

From the Judgment and Order dated 29.08.2018 of the High Courtof Madras at Madurai in W.A. (MD) No. 907 of 2018.

EMs. Madhvi Divan, ASG, B. V. Balaram Das, Ms. Diksha Rai,Ms. Nupur Sharma, Samjyor Lepcha, Advs. for the Appellant.

Divyanshu Srivastav, Ms. Garima Bajaj, Nikhil Bamal, Advs. forthe Respondents.FThe Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

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1. Leave granted.

2. This appeal is filed by the Union of India, aggrieved by thejudgment and order dated 29.08.2018 passed in W.A.(MD) NO. 907 ofG2018 by Madras High Court (Madurai Bench), whereby, the appeal ofthe appellant is dismissed confirming the order of the learned SingleJudge, passed in W.P.(MD) NO. 17290 of 2017.

3. By Order dated 26.10.2017, passed in W.P.(MD) No.17290 of2017, filed by the 1[st] Respondent herein, while disposing of the writHpetition, directions were issued to the appellant herein, to grant Freedom Fighter’s Pension to the 1[st] Respondent under Swatantrata SainikSamman Pension Scheme and pass suitable orders within a period offour weeks from the date of receipt of the order.

4. Aggrieved by the order of the learned Single Judge, the appellantherein, preferred writ appeal under Clause 15 of the Letters Patent andthe same is dismissed by the impugned order.

5. The Respondent No.1 herein, has submitted his first applicationfor grant of pension under Swatantrata Sainik Samman Pension Schemeon 10.04.1997, which was forwarded by the 2[nd] Respondent through 3[rd]Respondent. In the said communication, which was received by theappellant on 26.07.2001, it was observed that the application was notproperly filled up and the certificate issued by one of the certifiers wasvague. Non-Availability of Records Certificate (NARC) was notproduced from the competent authority, as per the scheme. In absenceof any categorical recommendation made by the 2[nd] Respondent, theapplication made by the 1[st] Respondent, at first instance, on 10.04.1997,was rejected by the appellant vide its letter dated 27.02.2004. Thereafter,for about a period of 13 years, no steps have been taken by the 1[st]Respondent and on 29.08.2017, he again sent a communication to theappellant herein, for grant of pension from 2011 under Swatantrata SainikSamman Pension Scheme, stating that he was imprisoned for more thansix months from 05.01.1944 to 05.07.1944 during Quit India Movement.

6. It is the case of the appellant that as the said communicationwas not supported by any documents, the appellant herein, sent a letterdated 27.10.2017 which is addressed to the 2[nd] Respondent with a copyto the 1[st] Respondent to send the claim application by completing all therequired formalities as per Swatantrata Sainik Samman Pension Scheme.At that stage, the 1[st] Respondent herein, has filed the Writ Petition beforeMadras High Court (Madurai Bench), seeking directions by way ofmandamus to direct the appellant herein, to grant Freedom Fighter’sPension under the Swatantrata Sainik Samman Pension Scheme.

7. It is the case of the appellant that writ petition was heard anddisposed of by order dated 26.10.2017, without issuing a notice and withoutgiving any opportunity to file counter affidavit to rebut the allegations,made in the petition.

8. Learned Single Judge, referring to certain communications madeby the 1[st] Respondent, by recording a finding that the certificate issuedby an approved certifier is sufficient for grant of pension, has disposed AB

Aof the petition by directing the appellant to grant pension underSwatantrata Sainik Samman Pension Scheme and to pass suitable orders,in respect thereof.

9. It is the case of the appellant that even in the appeal, thoughspecific grounds are raised before the Division Bench, inter alia, statingBthat no notice was issued in the writ petition; the application by the 1[st]Respondent for grant of freedom fighters’ pension was not supported byrequired documents; and non-disclosure of the rejection of the firstapplication for grant of pension, the High Court has dismissed the appealwithout assigning valid reasons and without considering any of the groundsraised in the appeal.C

10. Before this Court, the counter affidavit is filed by the 1[st]Respondent. While denying various allegations made by the appellant, itis stated that as the appellant has not complied with the directions issuedby the High Court, he has already moved contempt petition and withoutdisclosing the same, the Special Leave Petition is filed before this Court.DWith reference to allegations made in the appeal, it is stated that being aveteran freedom fighter in Indian freedom struggle, he had sufferedvarious losses and hardships including imprisonment (not limited toimprisonment of six months in 1944). Moreover, he had to go undergroundfor more than a year in 1942 (August, 1942 to December, 1943), as heEwas facing detention orders.

11. Further, it is stated that as he has actively participated in QuitIndia Movement, as a consequence of his participation, he was sentencedand was lodged in Alipuram Central Prison, for more than six monthsfrom 05.01.1944 to 05.07.1944.

F12. While referring to his first application made in the year 1997,it is alleged that such application made by him was not dealt with duecare by the appellant and the appellant adopted a lethargic approach inconsidering the application of the 1[st] Respondent. While referring to hisearlier rejection, it is stated that such a rejection made by the appellant,on his first application, was whimsical and arbitrary.G

13. In response to the letter dated 30.08.2017, addressed by theappellant, it is stated that he has replied vide letter dated 07.09.2017,stating that all other veteran freedom fighters had passed away andexcept one Mr. A. M. Lakshmanan whose Co-Prisoner Certificate hasalready been submitted along with the certificate of one Mr. A. C.

Periasamy, thus, he has complied with all the requirements ascontemplated under the scheme, as such, there are no grounds to interferewith the orders passed by the High Court.

14. We have heard Ms. Madhavi Divan, learned Additional SolicitorGeneral, appearing for the Union of India and Mr. Divyanshu Srivastav,Advocate, appearing for the respondent / writ petitioner.

15. It is contended by the learned Additional Solicitor General,appearing for the Union of India that the learned Single Judge of theHigh Court has disposed of the petition without issuing any notice andwithout giving any opportunity of filing counter affidavit to rebut theallegations, made in the writ petition. It is submitted that while exercisingpowers of judicial review under Article 226 of the Constitution of India,the High Court has committed error in issuing positive directions forgrant of pension.

16. It is submitted that when the scheme is prepared for grant ofpension with certain conditions, unless compliance of such conditions isexamined by the competent authority, no directions ought to have beenissued, directing grant of pension.

17. It is submitted that at the first instance, the 1[st] Respondent hasapplied for grant of pension in the year 1997 and the same was forwardedby the 2[nd] Respondent through 3[rd] Respondent without making anyspecific recommendations and the same was rejected, after lapse ofseveral years, again, application is made for grant of pension. Even beforethe same is considered by the competent authority, the 1[st] Respondenthas approached the High Court and the High Court has disposed of thepetition without giving opportunity of filing counter affidavit.

18. It is submitted that in spite of raising several grounds, theDivision Bench also failed to consider the same, and confirmed the orderof the learned Single Judge by dismissing the appeal filed by the appellantherein.

19. Learned counsel in support of her arguments relied on judgmentof this Court in the case of W.B.Freedom Fighters’ Organization v.Union of India and Others[1]and also the judgment in the case of Unionof India v. Bikash R. Bhowmik and Others[2].

1. 2004(7)SCC 716

2. 2004(7)SCC 722

A20. On the other hand, Mr. Divyanshu Srivastav, appearing forthe 1[st] Respondent while refuting the submissions made by the learnedcounsel appearing for the appellant, has contended that though therespondent has participated in the freedom struggle and suffered lossesapart from his imprisonment during the period of Quit India Movement,he is unduly deprived of the pension, which he is entitled to, as per theBscheme prepared.

21. While drawing our attention to the Order dated 26.04.2019,passed in Special Leave Petition (C) No.11132 of 2019 (Diary No.2923of 2019), it is submitted that similar petition is already dismissed by thisCourt and further, relying on the judgment of this Court in the case ofCUnion of India v. Sitakant S. Dubhashi and Anr.[3], learned Counselhas submitted that there is no illegality in the impugned order passed bythe High Court and there are no grounds to interfere with the same.

22. It is, further, submitted that the documents which are alreadyfiled, are sufficient to grant pension as per the Swatantrata Sainik SammanDPension Scheme and as the appellant was not considering his applicationfor grant of pension, the learned Single Judge of the High Court hasrightly issued directions for grant of pension. There are no grounds tointerfere with the same.

23. It is not in dispute that at first instance, the 1[st] RespondentEherein, has applied for grant of pension in the year 1997 and theapplication dated 10.04.1997, submitted by the 1[st] Respondent is placedon record. In the said application, the 1[st] Respondent has stated that hewas underground during the Quit India Movement of 1942 i.e. duringthe period from August, 1942 up to a period of more than six months. AtFthat time, along with the first application, the Non - Availability of RecordsCertificate (NARC) obtained from the Government, was not producedand merely a certificate, certified by the C.J.M., Madurai, was produced.

24. The first application, which was forwarded to the appellant,was without any specific recommendation. On receipt of suchGcommunication from the 2[nd] respondent, the claim of the 1[st] Respondentwas considered and rejected. The said order has become final and thesame was not questioned. Nearly after 13 years of such rejection, on29.08.2017, the 1[st] Respondent has again claimed pension under theSwatantrata Sainik Samman Pension Scheme on the plea of his imprisonment for more than six months for participating in the Quit IndiaMovement. The application, which is made for the second time, is alsoplaced on record as Annexure “P-5”. In the said application, he hasstated that he was imprisoned for more than six months i.e. from05.01.1944 to 05.07.1944, which is clearly in variance to the period whichhe has mentioned in the first application. Though, earlier rejection hasbecome final and the particulars mentioned in the claim made by the 1[st]Respondent are in variance to the particulars mentioned at first instance,without issuing notice and without giving opportunity to the appellant tofile counter affidavit, the learned Single Judge has disposed of the petitionby granting a positive direction to grant pension. The claim of the 1[st]Respondent is under the scheme, notified by the appellant-Government.The scheme prescribes to file certain documents to authenticate theimprisonment of a claimant as a freedom fighter.

25. It is the case of the appellant that the documentary evidencefiled by the 1[st] Respondent is not in compliance of the scheme. It is amatter which is to be left to the competent authority to consider. Whenthe application of the 1[st] Respondent is already rejected in the year 1997,when such rejection order has become final, it is not open for the 1[st]Respondent to make a claim for second time for pension again by wayof fresh application. The 1[st] Respondent would be entitled to the benefitsof this scheme, if he produces the relevant material in support of hisclaim. As regards the sufficiency of proof, the scheme itself mentionsthe documents which are required to be produced along with theapplication. Whether the claimant fulfills the criteria or not, it is for thecompetent authority to examine it. Even before the application isconsidered by the competent authority, in exercise of powers of judicialreview, the High Court should not have issued any directions for grant ofpension. In this case, it is also to be noticed that earlier the claim of the1[st] Respondent is already rejected and the said order has become final.After perusal of the order passed by the learned Single Judge and theDivision Bench, we are of the view that no valid reasons have beenassigned to grant relief to the 1[st] Respondent for grant of pension. Itappears that the 1[st] Respondent has not disclosed his earlier rejection byproducing the earlier orders while making the application for the secondtime before the appellant and also before the High Court.

26. In any event, when such serious factual disputes emerge forconsideration, the High Court ought not to have disposed of the petition AB

Afiled by the Respondent without even issuing notice and giving opportunityto file counter affidavit to rebut the allegations made by the appellant.The judgments of this Court, relied on by the learned Additional SolicitorGeneral in the case of W.B.Freedom Fighters’ Organization v. Unionof India and Others[1 ]and in the case of Union of India v. Bikash R.Bhowmik and Others[2 ]will support the plea of the appellant. In the caseBof W.B.Freedom Fighters’ Organization v. Union of India andOthers, this Court has held that when the competent committee hasconsidered and opined that the applications were not supported by requireddocuments and rejected the application, this Court cannot interfere withthe same and such findings cannot be said to be perverse or unreasonable.

27. Further, in the case of Union of India vs. Bikash R. Bhowmikand Others[2], this Court has held that the pension under SwatantrataSainik Samman Pension Scheme of 1980 can be sanctioned as per theproof required under the scheme and in no other manner. In the saidjudgment, this Court has reversed the order passed by the High Court.

28. In the instant case, the appellant stands on a better footing, forthe reason that although the application made by the 1[st] Respondent on10.04.1997 was rejected and the said order has become final, he againapproached the appellant with the same request. Even before theCompetent Authority considers the application, the 1[st] RespondentEapproached the High Court by filing Writ Petition and the High Court,not only entertained the petition, but disposed of the same without evennotice and opportunity of filing counter affidavit to the appellant.

29. We have also perused the order passed by the Division Bench.Even the Division Bench of High Court has not considered variousFgrounds raised by the appellant, while confirming the order of the learnedSingle Judge.

30. It may be true that the 1[st] Respondent is getting pension asper the scheme, mooted by the State, but, at the same time, to claimpension under the scheme of 1980, the 1[st] Respondent has to furnish theGrequired proof as contemplated under the scheme. When the claim isunder a particular scheme, unless one fulfills the eligibility criteria forgrant of pension, as mentioned in the scheme, no applicant can claimsuch pensions, as a matter of right.

31. Though, the learned Counsel appearing for the respondent –Writ Petitioner has placed reliance on the order passed by this Court inH

rejecting the Special Leave Petition in limine and also, further, judgmentof this Court in the case of Union of India v. Sitakant S. Dubhashiand Anr.[3], we are of the view that the order passed by this Court andalso the judgment in the case of Union of India v. Sitakant S. Dubhashiand Anr. would not render any assistance in support of his claim. Whethera particular applicant is entitled for pension under the Swatantrata SainikSamman Pension Scheme of 1980, is a matter which is required to beconsidered having regard to facts and documentary evidence producedin each case, as such, the judgment relied on by the learned counsel is ofno assistance to support his case.

32. In view of the reasons, stated supra, we allow this appeal andset aside the judgment dated 29.08.2018 passed in W.A.(MD) No.907of 2018 by the Madras High Court (Madurai Bench) and consequently,the Writ Petition filed in Writ Petition (MD) No.17290 of 2017 standsdismissed, with no order as to costs.

Devika Gujral

Appeal allowed.D