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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6651 OF 2008

Union of India & Anr. ... Appellants

Versus

Jai Kishun Singh (D) through L.Rs. & Ors.          ... Respondents

J U D G M E N T

ARUN  MISHRA, J.

In the case in hand,  the Court is required to adjudicate  

upon  the  issue  whether  Freedom  Fighter  pension  had  been  

undeservingly extended to respondent No.1 inspite of the fact  

that  he did not  participate in  freedom struggle as he was a  

child of 7 to 8 years in the year 1942.

Initially, original respondent No.1’s case for granting such  pension was declined by the appellant vide letter dated  19.06.1995.  However, original respondent No.1 was successful  in getting released pension on second attempt and it was  ordered to be released on 26.12.1997 with retrospective effect  from 28.07.1981.

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The matter did not set at rest at that. The High Court at Patna  directed suo motu inquiry in the rampant complaints that large  persons in the State of Bihar were availing such benefits inspite  of not having participated in freedom struggle as contemplated  under the Swatantrata Sainik Samman Pension Scheme, 1980  (for short “the Scheme”).  The Deputy Collector conducted  inquiry into the matter and recorded evidence.  He found that  claim of the deceased respondent No.1 was not genuine.  On  that basis, the Union of India issued show-cause notice and  thereafter took decision on 19.05.2004 to cancel pension with  effect from the date it was initially sanctioned, i.e. 28.07.1981  and the amount of pension already drawn by him be recovered.

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The deceased respondent No.1 unsuccessfully  impugned  

the  aforesaid  order  in  writ  petition  filed  before  the  Single  

Bench. However, the Division Bench of the High Court in the  

appeal has quashed the order.  Hence, the Union of India has  

come up in appeal before us. The operation of order passed by  

the Division Bench of the High Court was stayed by this Court  

on 10.11.2008.

The  learned  counsel  for  the  appellants  submitted  that  

pension  was  rightly  withdrawn.   The  age  of  the  deceased  

respondent  No.1  was  7  to  8  years  in  1942.  Thus,  his  

participation  in  the  incident  of  August  1942  was  rightly  

disbelieved.  He was unable even to give details of the incident  

in the course of inquiry.  The reliance placed by the Division  

Bench on the determination of age by the Medical Board at 73  

years in 2001 was uncalled for as the Medical Board has not  

conducted  scientific  tests  and  has  opined  on  the  basis  of  

physical appearance of the original respondent No.1.  He had  

also submitted that the original respondent No.1 had stated his  

age on 06.06.1977 to be 40 years while deposing in Criminal  

Case No.1018/1974 (Trial No.381/77).  Apart from this, in the  

Voter List of 1975, his age has been mentioned as 42 years.

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Thus, at the age of 7 to 8 years, the claim that he participated  

in freedom struggle could not be said to be believable.

Per  contra,  the  counsel  for  L.Rs.  of  the  deceased  

respondent No.1 would submit that pension had been rightly  

sanctioned in 1997.  Thereafter, in view of the report of Medical  

Board, there was no reason to withdraw it as the age at the  

relevant time in 1942 would have been 13 years.

The  main  question  for  consideration  is  what  was  the  

approximate age of deceased respondent No. 1 on 15th August,  

1942.  He has claimed that his age was 13 years when he went  

underground for a year w.e.f. 14th August, 1942 to 15th August,  

1943.   

The enquiry officer recorded oral statement indicating that  

his  age  was  much  less.  We  discard  such  statement  as  oral  

statement cannot be a safe criteria for arriving at conclusion.  

However,  the  documentary  evidence  of  the  years  1975  and  

1977 in the form of Voter List and deposition-sheet clinches the  

issue  and  establishes  that  the  claim  is  not  genuine.  

Documentary evidence has to prevail, more so as there was no  

such dispute as to age at the relevant time.   As per deposition-

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sheet  of  criminal  case,  age  was  approximately  40  years  in  

1977.   If  the said date is taken as correct,  the date of birth  

would come to the year 1937.  As per Voter List of 1975, his  

age was 42 years.  From aforesaid documents in consideration,  

age in  1942 would  have been above 5  years  and below 10  

years.  At such an age, participation in the incident in question  

is highly improbable as such cancellation of the pension in the  

facts and circumstances of the case, could not be said to be  

unwarranted at all.

The  freedom  fighter   pension  is  a  form  of  gratitude  

extended  by an indebted nation in recognition of the sacrifice  

made by the freedom fighters to achieving independence.  We  

are  conscious  of  the  fact  that  liberal  approach  has  to  be  

adopted  in  such  matters  so  that  rightful  persons  are  not  

deprived of deserving benefit for lack of evidence, after a lapse  

of long time.   It has been laid down by this Court that such  

cases have to be decided on preponderance   of   probabilities  

and standard of proof  beyond reasonable doubt is  not to be  

applied.

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Relying upon  Gurdial Singh vs. Union of India (2001) 8  

SCC 8 in Kamlabai Sinkar vs. State of Maharashtra & Ors.  

(2012) 11 SCC 754, this Court has laid down thus :

“6.  Having  perused  the  above  materials  on  record, at the very outset, we wish to refer to  the observations made by this Court in regard  to the grant of freedom fighters’ pension in the  decision in Gurdial Singh v. Union of  India.  In  para  7  of  the  judgment,  this  Court  has  highlighted  the  manner  in  which  such  claims  are  to  be  considered  for  grant  of  freedom  fighters’ pension.  It will be worthwhile to make  a  reference  to  the  said  passage  before  expressing  our  conclusion  with  regard  to  the  claim of the appellant’s husband in the case on  hand.”

   7. Para 7 reads as under: (Gurdial Singh case)

“7. The standard of proof required in such cases  is  not  such  standard  which  is  required  in  a  criminal case or in a case adjudicated upon rival  contentions or evidence of the parties.  As the  object  of  the  Scheme  is  to  honour  and  to  mitigate the sufferings of those who had given  their  all  for  the  country,  a  liberal  and  not  a  technical  approach  is  required  to  be  followed  while determining the merits of the case of a  person seeking pension under the Scheme.  It  should  not  be  forgotten  that  the  persons  intended  to  be  covered  by  the  Scheme  had  suffered  for  the  country  about  half-a-century  back  and  had  not  expected  to  be rewarded  for the imprisonment suffered by them.  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

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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 touchstone of the   test of  ‘beyond  reasonable  doubt’. Once on  the basis of the evidence  it   is  probabilised  that  the claimant had suffered imprisonment  for the cause  of  the  country and during the  freedom struggle, a presumption is required  to  be drawn in his  favour  unless  the  same  is  rebutted  by  cogent,  reasonable and reliable  evidence.”                                                [emphasis added]  

We are unable to rely upon determination of age by  

the Medical Board as it is based upon physical appearance  

only and not based upon any scientific medical test like  

ossification test and radiological examination. When it  is  

based   on  such  scientific  tests  as  laid  down  in  Om  

Prakash vs. State of Rajasthan & Anr. (2012) 5 SCC  

201, it is of strong  corroborative value.  The Medical Board  

held  on  11.4.2002  has  opined  on  physical  appearance  

basis age about 73 years. It is not based on scientific tests  

hence  it  cannot  be  accepted,  more  so  in  view of  other  

documentary evidence on record.

This  Court  in  State  of  Orissa  vs.  Choudhury  

Nayak (D) through L.Rs.  & Ors.  (2010) 8 SCC 796 has

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adversely commented on undeserving candidates availing  

the benefits of such welfare schemes, thus:   

“9.  It  is  of  some interest  to  note  from the  statistics  furnished  by  the  Central  government in their additional affidavit, that  1,70,813  freedom  fighters/dependants  have  been sanctioned freedom fighters pension (as  on 31.5.2010). At present as many as 60000  persons are getting pension or family pension  as freedom fighters/dependants. The average  pension of a freedom fighter and after his/her  death to the spouse is  Rs.12400/-  p.m.  and  the  average  pension  paid  to  a  dependant  unmarried  daughter  is  Rs.3000  per  month.  The  expenditure  for  the  year  2009-2010  under  the  scheme  was  Rs.785  crores.  We  have referred to these figures only to  show  that when false claims come to the notice of  the Central Government, it is bound to take  stern action. Any complacency on the part of  the  Government  in  taking  action  against  bogus  claims  under  any  scheme  would  encourage bogus claims under  all  schemes,  by  undeserving  candidates  who  are  “well  connected  and  influential”.  False  claimants  walking  away  with  the  benefits  meant  for  genuine  and  deserving  candidates  has  become the bane of several welfare schemes. 10. xx    xx    xx 11.  Grant  of  freedom  fighters'  pension  to  bogus  claimants  producing  false  and  fabricated  documents  is  as  bad  as  genuine  freedom fighters  being  denied pension.  The  only way to respect the sacrifices of freedom  fighters  is  to  ensure  that  only  genuine  freedom fighters get the pension. This means  that  the Government should weed out  false  and  fabricated  claims  and  cancel  the  grant

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when the bogus nature of the claim comes to  light. In  Union  of  India  vs.  Avtar  Singh  [(2006)  6  SCC  493]  this  Court  therefore  cautioned:  

“8.......The  genuine  freedom  fighters  deserve to be treated with reverence, respect  and honour. But at the same time it cannot be  lost sight of that people who had no role to  play in  the freedom struggle  should  not  be  permitted to benefit from the liberal approach  required  to  be  adopted  in  the  case  of  the  freedom fighters, most of whom in the normal  course  are  septuagenarians  and  octogenarians."

In the facts and circumstances of this case, we have  

no hesitation to restore the judgment and order passed by  

the Single Bench of the High Court at Patna.  The judgment  

and  order  of  the  Division  Bench  is  set  aside.   As  the  

respondent  has  been  wrongly  allowed  pension  after  

rejecting claim at the first instance by the appellant, the  

High Court has directed suo motu inquiry and on this basis  

pension had been withdrawn, and also considering the fact  

that the recipient of pension respondent No.1 has died, we  

direct that the amount paid to him shall not be recovered  

from his legal representatives.   

The appeal is accordingly allowed.  No costs.    

.........................J.

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                                                                        (Vikramajit  Sen)

.........................J.                                                                          (Arun  Mishra) New Delhi, September 10, 2014.