UNION OF INDIAversusR.V. SWAMY@ VELLAICHAMY

   A                                UNION OF INDIA
                                              v.
                            R.V. SWAMY@VELLAICHAMY

                                        MARCH 31, 1997

   B                  (K. RAMASWAMY AND D.P. WADHWA, JJ.)

           Pe11sio1i-Ce11tral freedom Fighters Pe11sio11 Scl1eme-Eligibili1y f oi--
    Respo11de11t's claim for pemio1i-Clai111 11ot accepted by Govemmellt after
    co11Sidering the evidenc~Writ-Direction by High Court to gra11t pensio11 to
_ C respo11de11l-Appeal by U11io11 of llldia-Held it bei11g a pure appreciation of
    evide11ce, tile High Court was not justified i11 directing grallt of Freedom Fighter
    Pensio11 to the respo11de11t-Respo11de11t's wife given liberty to approach State
    Govemmellt for gra11t of pe11sion.

           Freedom Fighters Pe11siott-Eligibility Ce1tificate-Pers011s competent
   D to gnmt-Govem111e11t of illdia should lay dow11 guidelines. ,
             Mukund Lal Bhandali & Ors. v. U11io11 of lltdia & Ors., (1993] Supp.
       3 SCC 2 and Union of India v. Moha11 Singh & Ors., (1996] 10 SCC 351,
       referred to.

   E            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 'lfJ79 of
        1997.

             From the Judgment and Order dated 3.1.96 of the Madras High
        Court in W.P.No. 11957 of 1994.

   F            Hemant Sharma and P. Parmeshwaran for the Appellant.

                Ms. N. Annapoorani A. Mariarputham (NP) for the Respondent.

                The following Order of the Court was delivered :

   G            Substitution allowed.

                Leave granted. We have heard learned counsel on both sides.

             This appeal by special leave arises from the judgment of the High
        Court of Madras, made on 3.1.1996 in Writ Petition No. 11957/94. The
   H    High Court, on appreciation of evidence, has observed in paragraph 9 of •
                                          458
                            U.O.l.v. RV.SWAMY                         459

the judgment as under : ·                                                   A

        "I have carefully considered the submissions of learned counsel for
        the. petitioner and the respondents. Admittedly, the petitioner was
        sanctioned freedom fighters pension by the State Government. Five
        prominent Freedom Fighters have given certificates who were B
        eligible to give such certificates under the very scheme and nothing
        is stated to discredit these certificates. In view of the certificates
        produced by the petitioner though the records for the relevant
        period of 1942-43 were not available since they were destroyed,
        the certificates given by the prominent freedom fighters are to be
        accepted. Added to this, the claim of the petitioner also finds place C
        in the book published by the Government of Tamil Nadu and it
        further supports the claim of the petitioner that he suffered im-
        prisonment for a period of two months in Alipuram Jail. The report
        of the Collector of Madurai that no record as to arrest warrant is
         available or that there is no material to show that the arrest warrant D
        was issued against the petitioner. cannot be taken as conclusive
        because there is nothing to show that as to what is the basis for
        such a statement. If it were to be a certificate issued by the
        authorities or the Court which· had issued arrest a warrant that
        could have been a different matter. At any rate, even the same
        Collector recommended for the sanction of Central Pension to the E
        petitioner. Even on earlier occasion, the State Government had
        recommended for grant of central Freedom Fighters Pension to
         the petitioner as can be seen from the letter dated 22.1.1982
         addressed to the first respondent. Thus, having regard to overall
         circumstances of the case and the materials placed on record, I F ·
         am of the opinion that the petitioner is entitled to grant of pension
        under the SSS Pension Scheme of the Central Government. Having
        regard to the fact that the petitioner has been struggling to get
        pension from 14.12.1981 and the petitioner made an application to
        the first respondent for the third time and in view of the fact that
        this Court remanded the case of the first respondent and the first G
        respondent did not consider the claim of the petitioner, having
        regard to the guidelines and directions given in 1hangavela v. 1he
         Government of India, (1994) 1 MU 622, I do not think that it is
         appropriate to direct the first respondent again to consider the
         case of the petitioner. In view of the materials placed on record, H
    460                   SUPREME COURT REPORTS                  [1997] 3 S.C.R.

A           the petitioner is entitled to get the pension sought for.•

        . The High Court directed grant of pension to R.V. Swamy & R:
    Vellaichamy who has expired. The legal representatives have been brought
    on record for grant of pension under the Central Freedom Fighters Pen-
    sion Scheme. The scheme postulates as under :
B
            "4. w~o is eligible :

                For the purpose of grant of Samman Pension under the scheme,
            a freedom fighter is:
                  ..
c           (a) A pensioner who had suffered a minimum imprisonment of six
            months in the mainland jails before Independence. However, ex-
            INA personnel will be eligible for pension if the imprison-
            ment/detention suffered by them was outside India.

            (b) The minimum period of actual imprisonment for eligibility of
D           pension has been reduced to three months, in case of women and
            SC/ST freedom fighters from 1.8.1980.

            In Explanation : 4. Broken period of imprisonment will be totaled
            llP for computing the qualifying period.
E           (b) A person who remained underground for more than six months
            provided he was:

          · . 1. A proclaimed offender; or

            2. Qne on whom an award. for arrest/head was announced; or
F
            3. Ont: for whose detention order was issued but not served."

       The question, therefore, is : whether the view taken by the High
  Court is correct in law? This Court in Mukund La/Bhandari & Ors. v.
G Unfon of India & Ors., [1993] Supp. 3 SCC 2 at 5 held thus :
            "As regards the sufficiency of the proof, the Scheme itself mentions
            the documents which are required to be produced before the
            Government. It is not possible· for this Court to scrutinize the
            documents which according to the petitioner, they had produced .
H           in support of their claim and pronounce upon their genuineness.
                         U.0.I.v. R.V.SWAMY                             461

        It is the function of the Government to do so. We would, therefore,    A
        direct accordingly."

      In U11io11 of India v. Mohan Singh & Ors.. [1996) 10 SCC 351 the High
Court directed the Government to consider the case of the respondent
therein for grant of Freedom Fighter Pension. The respondents therein
relied upon a certificate of co-prisoner and an MLA and sought pension B
on that basis. The Government considered the certificate and found the
same as not acceptable. When the second writ petition was admitted on
the ground that the certificate of MLA was sufficient proof, this Court
following the judgment in Mukund Lal Bhandari's case has held in para-
graph 5, as extracted earlier.                                              C
      In this case, the evidence does indicate that there is no proof of any
warrant issued against the respondent as a proclaimed offender nor is there
any evidence of actual proof indicating actual sentence.

      Under these circumstances, the reliance on the certificate issued by D
the persons mentioned in the judgment of the High Court is a matter of
appreciation of evidence.

      The question is : whether the High Court is right in appreciating the
evidence and to conclude that the respondent is a freedom fighter to claim
Freedom Fighter Pension. The Government, in fact, has considered that          E
evidence and stated as under :

        "In compliance of the above direction of the Hon'ble High Court
        your case has again been re-examined. It is, however, regretted
        that it has not been possible to grant you pension for the following   F
        reasons:

        (i) The Government of Tamil Nadu has reported that no warrant
        of arrest was issued against you and no other acceptable documen-
        tary evidence was available in proof of your claimed underground
        suffering for more than six months.                               G
        (ii) No jail record for the claimed imprisonment period from 2nd
        week of September 1941, to 1st week of November, 1941 has been
        furnished.

        (iii) Since no warrant of arrest etc. was issued against you as H
     462                    SUPREME COURT REPORTS                   (1997] 3 S.C.R.

 A             reported by the State Government. The certificates from
               S/Shri P.S. Lakshmipathy Raju, A.B. Nagier and Dr. T. Khannan,
               D. Ramakrishnan, I, Mayand.i Bharati and A.K. Sonnamurthu are
               not acceptable, because for sanction of pension person should have
               remained underground against some executive of the Government
               before issued of warrant of arrest etc.
 B
               (iv) The non-availability of record certificate with reference to
               issue of warrant of arrest etc. against you as submitted by you, has
               been issued in 1988 wherein you did not mention the specific
               details of case No. etc. in your application of issue of warrant etc.
 c             Since earlier in 1985 State Government have already intimated that
               no arrest warrant .etc. was issued against you. In view of these
               circumstances NARC cannot be accepted."

           In view of the above consideration, it being a pure appreciation of
 D   evidence, the High Court was not justified iJ.J. directing grant of Freedom
     Fighter Pension to the respondent.

            Of late, large number of cases have been coming up quite frequently
      for grant of Freedom Fighter pension on the basis of the certificates issued
      by some persons with status of freedom fighters and are by and large not
. E · found to be acceptable to the Government of India. Since several matters
      are coming up to this Court, it is for the Government of India to re-con-
      sider the matter and to lay down appropriate clear guide-lines for the so-
      called freedom fighters who issue certificates to persons who come forward
      for Freedom Fighter Pension. Learned counsel for the respondent has
      stated that since the State Government has recommended the case of the
  F
      deceased-respondent for grant of Freedom Fighter Pension, the respon-
      dent-widow may be given liberty to approach the State Government in that
      behalf. Liberty is given to her to approach the State Government. It is for
      the State Government to consider ·the application according to their
      guidelines and dispose it of on merits.
 G
            The appeal is accordingly allowed. No costs.

      T.N.A.                                                       Appeal allowed.