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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2649      OF 2013 (Arising out of S.L.P. (C) No. 30685 of 2012)

Secretary to Government of India ... Appellant

Versus

Sawinder Kaur and another                            ...Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The husband of the respondent No. 1, late Gurnam  

Singh  Dhillon,  had  applied  for  grant  of  freedom  

fighter pension on the basis that he had participated  

in  the  freedom struggle  and had joined the  Indian  

National Army or Azad Hind Fauj (for short “the INA”)  

during 1941-42 in Singapore.  His claim for pension  

was  based  on  the  scheme,  namely,  Swatantrata

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Sainik  Samman Pension  Scheme,  1980 (for  brevity  

“the 1980 Scheme”).  Prior to the said Scheme, the  

Freedom Fighters  Pension Scheme,  1972 (for  short  

“the  1972  Scheme)  was  in  vogue  from 15.8.1972.  

The  benefit  of  the  1972  Scheme was  extended  to  

certain  categories  of  freedom  fighters  and  their  

family members and the said Scheme was liberalized  

in the year 1980.  Under the said liberalized scheme,  

anyone who had participated in the INA and in the  

Indian Independence League (IIL) was also treated to  

have  participated  in  the  National  Liberation  

Movement.   Under  the  said  Scheme,  a  person,  

claiming pension on the grounds of being in custody  

in connection with the freedom movement, could be  

considered  for  grant  of  pension  on  production  of  

imprisonment/  detention  certificate  from  the  

concerned jail authorities, District Magistrate or the  

State Government indicating the period of sentence  

awarded,  date  of  admission,  date  of  release  and  

various other factors.  It also provided that in case  

official  records  of  the  relevant  period  were  not  

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available,  secondary  evidence  in  the  form  of  

certificates  from co-prisoners  from central  freedom  

fighter  pensioners  who had proven jail  suffering of  

minimum one year and who were with the applicant  

in the same jail  could be considered provided their  

genuineness could be verified and found to be true  

by  the  competent  authorities.   In  case  of  persons  

belonging to INA category,  a certificate from a co-

prisoner from the central freedom fighters pensioner  

was required.  As per the 1980 Scheme, the ex-INA  

personnel who had not suffered formal punishment  

were  not  eligible  for  getting  pension  but  later  on,  

regard  being  had  to  their  hardships  and  their  

patriotism, they were admitted to the Scheme from  

the year 1980 in terms of the relaxation provided in  

the Ministry of Home Affairs circular No. 8/4/83-FF(P)  

dated 31.1.1983.

3. As is demonstrable from the factual score, when the  

husband  of  the  respondent  No.  1  submitted  the  

application for grant of freedom fighters pension, the army  

record  showed  that  he  was  enrolled  in  the  army  on  

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13.6.1939 and released from service on 14.2.1946 due to  

reduction of the Indian Army, but not due to association  

with  the  INA  and  was  also  paid  service  gratuity.   His  

application  was  initially  rejected  on  16.8.1980.   After  

expiry of nine years, in 1989, he claimed that he, being an  

ex-INA, was sent to New Guinea/New British Islands and  

had suffered immense hardships and, accordingly, sought  

pension in terms of the Ministry of Home Affairs circular  

No. 8/4/83-FF(P) dated 31.1.1983.  The claim was put forth  

in  accord  with  clause (v)  of  para  1  of  the said  circular  

which stipulated that the persons of ex-INA who had been  

sent  to  New  Guinea  and  adjoining  islands  and  had  

undergone extreme hardships,  starvation,  although they  

did  not  suffer  any  formal  imprisonment,  would  be  

admitted to the 1980 Scheme.   His application was not  

entertained and the prayer was not accepted.  

4. Being grieved by the order of rejection, late Gurnam  

Singh approached the High Court of Punjab and Haryana  

in CWP No. 11049 of 1992 which was disposed of with the  

direction  to  the  respondent  therein  to  pass  a  speaking  

order  in  relation to his  grievance within a period of  six  

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months.  As his prayer was not accepted, he invoked the  

jurisdiction of the High Court again in CWP No. 6393 of  

1993 assailing the order of rejection and the High Court  

issued  a  direction  to  determine  the  issue  afresh.  

Thereafter, the competent authority of the Union of India,  

after due enquiry, accepted the prayer and directed that  

he would be entitled to the freedom fighters pension with  

effect from 9.6.1994.

5. Being dissatisfied with the determination of the date  

of grant, he visited the High Court in CWP No. 15724 of  

1994 claiming that the benefit should be extended to him  

from the date when the Scheme was made applicable, i.e.,  

from 1.8.1980.

6. The  High  Court,  vide  its  order  dated  13.10.2011,  

referred to the decision in  Mukund Lal Bhandari and  

others  v.  Union  of  India  and  others1  and  earlier  

decision of the same Court in LPA No. 305 of 2008 and  

directed that the petitioner therein was entitled to get the  

benefit  of  Freedom  Fighters  Pension  Scheme  from  the  

date  from  which  the  original  claim  was  filed  i.e.  

1 (1993) Supp (3) SCC 2

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22.03.1973 along with interest @ 9 % per annum.  It was  

also observed that as during the pendency,  the original  

claimant had expired and the wife was more than ninety  

years old, the amount should be paid within the period of  

six months from the date of the order.  It is worth noting  

that the learned Single Judge took note that though the  

original petitioner had claimed the benefit w.e.f 1980, yet  

there was no reason to deprive the benefit of the scheme  

from the date when the original application was submitted  

for the reason that the scheme was brought to honour the  

forgotten  heroes of the freedom struggle.  

7. The aforesaid order was assailed by the Government  

in  L.P.A.  No.  578 of  2012 and the Division Bench,  vide  

order dated 26.04.2012, after narrating the history of the  

litigation,  concurred  with  the  view  expressed  by  the  

learned Single Judge as  a result of which the appeal stood  

dismissed.  Hence, the present appeal by special leave.   

8. The question that emerges for consideration in this  

appeal  by  special  leave  under  Article  136  of  the  

Constitution is from which date the wife of the freedom  

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fighter  would  be  entitled  to  get  the  pension  under  the  

1980 Scheme.

9. From the  exposition  of  facts,  it  is  quite  clear  that  

initially the benefit was not extended to the husband who  

was the petitioner as he belonged to a different category.  

After  relaxation,  the  same  was  extended  on  certain  

conditions  to  certain  categories  but  the  husband  was  

found to be ineligible and, hence, the claim was rejected.  

After direction of the High Court to consider his case, the  

authorities,  after  considering  all  the  facts  including  the  

certificate, extended the benefit on the basis of secondary  

evidence as there was no clinching material on record that  

he was covered under the scheme as relaxed vide Circular  

dated  31.01.1983.   On  a  perusal  of  the  scheme,  it  is  

manifest  under  no  circumstances  the  respondent  would  

have  got  the  benefit  from  1973,  that  is,  the  date  of  

application as he could only be covered under the scheme  

after the circular dated 31.01.1983.  Thus, the direction  

relating to his entitlement from the date of the application  

is absolutely erroneous.  

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10. The heart of the matter is whether the respondent  

would be entitled even from the date, i.e., 1.08.1980 when  

the scheme came into existence.  To appreciate the said  

issue, we may usefully refer to certain authorities in the  

field.  In  State of Orissa  v.  Choudhuri Nayak (Dead)  

through LRs and others2, a two-Judge Bench referred to  

the decisions in Mukund Lal Bhandari (supra), Gurdial  

Singh  v.  Union  of  India3 and  State  of  M.P.  v.  

Devkinandan  Maheshwari4 wherein  the  object  of  the  

Freedom  Fighters’  Pension  and  what  should  be  the  

approach of the authorities in dealing with the applications  

for  pension  under  the  Scheme was  stated,  summarized  

the principles laid down therein and thereafter proceeded  

to state that the Government should weed out false and  

fabricated claims and cancel the grant when bogus nature  

of the claim comes to light.  

11. In  Union  of  India  v.  Avtar  Singh5, it  has  been  

observed that the genuine freedom fighters deserve to be  

treated with  reverence,  respect  and honour,  but  at  the  

2 (2010) 8 SCC 796 3 (2001) 8 SCC 8 4 (2003) 3 SCC 183 5 (2006) 6 SCC 493

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same time,  it  cannot  be  lost  sight  of  the  fact  that  the  

people who had no role to play in the freedom struggle  

should be permitted to benefit from the liberal approach  

to be adopted in the case of freedom fighters.  Be it noted,  

all  this  was  said  in  respect  of  availing  the  claim  by  

producing false and fabricated documents as genuine to  

avail the pension.  

12. In Union of India v. Surjit Kaur and another6, this  

Court was dealing with a situation where the husband’s  

application  was  rejected  for  grant  of  freedom  fighters’  

pension and the respondent-husband did not challenge for  

two decades and the wife, two years after his death, filed  

a suit claiming the pension.  This Court observed that the  

claim was barred under the Limitation Act, 1963.

13. In  Union  of  India  and  another  v.  Kaushalya  

Devi7, the Court referred to the decision in Government  

of  India  v.  K.V.  Swaminathan8 where  the  claim was  

allowed on the basis of benefit  of doubt and, therefore,  

pension was granted not from the date of the application  

6 (2007) 15 SCC 627 7 (2007) 9 SCC 525 8 (1997) 10 SCC 190

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but from the date of  the order.   Further analyzing,  this  

Court opined as follows: -

“In the present case, we have perused the  record and found that it is stated therein  that the claim was allowed on the basis of  secondary  nature  of  evidence.   In  other  words,  the claim was not allowed on the  basis  of  jail  certificate  produced  by  the  claimant but on the basis of oral statement  of some other detenu.  Hence, we are of  the  opinion  that  the  pension  should  be  granted from the date of the order and not  from the date of the application.”

14. In  Union of India & others v.  Kashiswar Jana9,  

the issue arose from which date the respondent therein  

was entitled to pension.  In the said case, the pension was  

released w.e.f 4.8.1993.  The claim of the respondent was  

that he was entitled to the pension from the date of the  

application which was allowed by the High Court directing  

that  pension  should  be  awarded  from  the  date  of  

application,  i.e.,  28.7.1981.   This  Court,  relying  on  the  

decision in  Kaushalaya Devi (supra), ruled that pension  

is to be granted from the date of the order passed by the  

High Court, i.e., 4.8.1993.  

9  (2008) 11 SCC 309

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15. In the case at hand, as is evincible, the claim was not  

allowed on the basis of the jail certificate produced by the  

claimant but on the basis of the oral statement of some  

other detenu.  The competent authority was not satisfied  

as regards the fulfilment of the conditions.  There was no  

primary  evidence  available  in  the  official  records  as  

required under the scheme to establish the claim of the  

respondent-husband that he was an Ex- INA member and  

suffered in New Guinea/New Britain Islands to prove his  

eligibility for pension under the scheme.  However, regard  

being  had  to  the  totality  of  the  circumstances,  he  was  

extended the benefit under the scheme as it was a case of  

benefit of doubt.   As is evident from the orders passed by  

the learned Single Judge as well  as the Division Bench,  

there is no discussion in that regard but pension has been  

granted from the date of the application in an extremely  

mechanical  manner.   In  our  considered  opinion,  the  

approach  is  erroneous  and  it  has  resultantly  led  to  an  

unsustainable order.

16. Consequently,  the  appeal  is  allowed,  the  orders  

passed  in  the  Writ  Petition  and  affirmed  in  the  Letters  

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Patent Appeal are set aside.  There shall be no order as to  

costs.

……………………………….J. [K. S. Radhakrishnan]

….………………………….J.                                            [Dipak Misra]

New Delhi; March 21, 2013.

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