'Let Swaraj Be Given To The Victims Who Suffer At The Hands Of Modern Day Bureaucrat': Madras HC Orders Pension For Widow Of Freedom Fighter

In a writ petition filed by the widow of a freedom fighter for grant of Family Freedom Fighters Monthly pension, Madras High Court has set aside the rejection order by Freedom Figher Revenue Division (F.F.R) and directed the processing of Petitioner's application under Swatantrata Sainik Samman Pension Scheme, 1980.

While allowing the plea of the petitioner wife, the court also made some stringent remarks about bureaucrats denying the freedom fighters pension on flimsy, technical grounds:

"The executive arm should realize that every step towards achieving the goal of independence required sacrifice and suffering of the freedom fighters, who, each, by taking their own small step, had played a part in achieving that goal. A fervent hope can only be  expressed that there will be an attitudinal change in the mindset of the officialdom in recognizing at least, the widows of those valiant warriors. The Raj-era had ended. Let Swaraj be given to these unfortunate victims who now suffer at the hands of the modern-day bureaucrat."

The single-judge bench of Justice C.V Karthikeyan was adjudicating a plea filed by the widow of E. Muthiya, a freedom fighter who was a Sepoy in the Indian National Army (INA) and served under the late lamented Nethaji Subhas Chandrabose. According to the wife's petition, her late husband was taken to detention in Burma (May 1945- July 1945) and incarcerated in Rangoon Central Jail (August 1945- July 1946) while he was retreating with the INA. Though the petitioner was a recipient of the State Pension Scheme for Freedom Fighters, her application under Swatantrata Sainik Samman Pension Scheme, 1980 was rejected by F.F.R on two grounds as stated in the respondents' affidavit:

1) The co-prisoner of her late husband, S. Raju, has only certified that (Certificate of Co-Prisoner) Muthiya was incarcerated from May 1945 to the end of December 1945, a time frame less than one year, contrary to the claim made by the wife. On the basis of the above, the Certificate of Co-Prisoner was rejected.

2) Secondly, Non-Availability Records Certificate (NARC) had not been produced from the Tamil Nadu State Government by the petitioner.

On the first argument of the respondents, the court noted that his co-prisoner was incarcerated only from May 1945 to the end of December 1945, and therefore, it is preposterous to imagine that the co-prisoner could certify about Muthiya's incarceration beyond that period. Since Raju was released from Rangoon Central Prison in December, 1945, the court discarded the first argument of the respondents including F.F.R.

"I am equally surprised that even the seventh respondent/District Collector, Thanjavur had also not examined this particular aspect, but had merely parroted the counter affidavit of the first to fourth respondents. The District Collector must realise that his own office had examined the certificates of the petitioner and had approved them. As a matter of fact, the State Government had recognised the fact that her husband had suffered for the cause of the nation and had granted State Government pension. It logically follows that the petitioner should also granted the pension under the Central Government Scheme", the court noted in the order.

On the second submission made by the respondent, the court opined that the petitioner wife cannot be blamed for the non-production of Non-Availability of Records Certificate (NARC). Terming the production of document as an issue between State and Central Governments, the court observed as follows:

"...anyone of the first to fourth respondents, if they had bestowed a little interest and understanding on the plight of widows of the freedom fighters who suffered during the Freedom Struggle could have sought a clarification directly from the State Government", the court further observed.

About the argument that the petitioner cannot be granted the pension under the scheme since the petitioner's husband was never a recipient of the scheme though he applied for it, the court relied on several apex court judgments to establish that such a stand was not reasonable. According to the court, in Gurdial Singh v. Union of India & Ors., (2001) 8 SCC 8, it has been held that if the evidence probablises 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.

The court also referred to Mukund Lal Bhandari and others v. Union of India,  AIR 1993 SC 2127 and Union of India v. K.Duraisamy and others, (2018) 8 MLJ 223 in the order. The above judgments have categorically held that the benefit of pension must be accorded not only to the living fighter but also to his family when he is deceased. The second judgment also state that in the absence of the primary evidence, secondary evidence could be placed on record to seek the relief, if one of the reasons for rejection is non-production of the primary evidence, which is wholly unjustified. Based on the above precedents, the court noted as below while underscoring its interpretation in favour of the widow:

"The ratio in the observations referred supra would apply with full force to the facts of this case. The respondents have not stated that they doubt the genuinity of the claim of the petitioner that her husband served in the Indian National Army and that he suffered imprisonment. They only doubt the certificate issued by S. Raju. That doubt is unjustified as S. Raju had given a certificate only for the period when he was incarnated along with the husband of the petitioner at Rangoon Central Jail", the court observed in its order.

While concluding, F.F.R has also been asked to grant pension with arrears from the date of application (2004) till date which will be paid to the petitioner during her lifetime. the court has also directed that the processing of application and sanction of pension with arrears must be completed within 12 weeks.

Case Title: M.Sornam v. The Union Of India & Ors.

Case No: W.P.(MD)No.7215 of 2021

Citation: 2022 LiveLaw (Mad) 27

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