Union Of India vs A. Alagam Perumal Kone on 22 February, 2021


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Supreme Court of India

Union Of India vs A. Alagam Perumal Kone on 22 February, 2021

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy

      [email protected](C)No.5343/2019




                                                                          REPORTABLE


                                       IN THE SUPREME COURT OF INDIA

                                       CIVIL APPELLATE JURISDICTION


                                       CIVIL APPEAL NO.680 OF 2021
                                 (Arising out of SLP (C) No.5343 of 2019)


                         Union of India                                ....Appellant(s)


                                                        vs.


                         A. Alagam Perumal Kone & Others               ....Respondent(s)




                                              J U D G M E N T

R.SUBHASH REDDY,J.

1. Leave granted.

2. This appeal is filed by the Union of India,

aggrieved by the judgment and order dated 29.08.2018

passed in W.A.(MD) NO. 907 of 2018 by Madras High Court

(Madurai Bench), whereby, the appeal of the appellant
Signature Not Verified
is dismissed confirming the order of the learned Single
Digitally signed by
MEENAKSHI KOHLI
Date: 2021.02.22
16:16:29 IST
Reason:

Judge, passed in W.P.(MD) NO. 17290 of 2017.

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3. By Order dated 26.10.2017, passed in W.P.(MD)

No.17290 of 2017, filed by the 1 st Respondent herein,

while disposing of the writ petition, directions were

issued to the appellant herein, to grant Freedom

Fighter’s Pension to the 1st Respondent under

Swatantrata Sainik Samman Pension Scheme and pass

suitable orders within a period of four weeks from the

date of receipt of the order.

4. Aggrieved by the order of the learned Single

Judge, the appellant herein, preferred writ appeal

under Clause 15 of the Letters Patent and the same is

dismissed by the impugned order.

5. The Respondent No.1 herein, has submitted his

first application for grant of pension under

Swatantrata Sainik Samman Pension Scheme on 10.04.1997,

which was forwarded by the 2nd Respondent through 3rd

Respondent. In the said communication, which was

received by the appellant on 26.07.2001, it was

observed that the application was not properly filled

up and the certificate issued by one of the certifiers

was vague. Non-Availability of Records Certificate

(NARC) was not produced from the competent authority,

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as per the scheme. In absence of any categorical

recommendation made by the 2nd Respondent, the

application made by the 1st 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

1st Respondent and on 29.08.2017, he again sent a

communication to the appellant herein, for grant of

pension from 2011 under Swatantrata Sainik Samman

Pension Scheme, stating that he was imprisoned for more

than six 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

communication was not supported by any documents, the

appellant herein, sent a letter dated 27.10.2017 which

is addressed to the 2nd Respondent with a copy to the

1st Respondent to send the claim application by

completing all the required formalities as per

Swatantrata Sainik Samman Pension Scheme. At that

stage, the 1st Respondent herein, has filed the Writ

Petition before Madras High Court (Madurai Bench),

seeking directions by way of mandamus to direct the

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appellant herein, to grant Freedom Fighter’s Pension

under the Swatantrata Sainik Samman Pension Scheme.

7. It is the case of the appellant that writ petition

was heard and disposed of by order dated 26.10.2017,

without issuing a notice and without giving any

opportunity to file counter affidavit to rebut the

allegations, made in the petition.

8. Learned Single Judge, referring to certain

communications made by the 1st Respondent, by recording

a finding that the certificate issued by an approved

certifier is sufficient for grant of pension, has

disposed of the petition by directing the appellant to

grant pension under Swatantrata 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, though specific grounds are raised before the

Division Bench, inter alia, stating that no notice was

issued in the writ petition; the application by the 1 st

Respondent for grant of freedom fighters’ pension was

not supported by required documents; and non-disclosure

of the rejection of the first application for grant of

pension, the High Court has dismissed the appeal

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without assigning valid reasons and without considering

any of the grounds raised in the appeal.

10. Before this Court, the counter affidavit is filed

by the 1st Respondent. While denying various allegations

made by the appellant, it is stated that as the

appellant has not complied with the directions issued

by the High Court, he has already moved contempt

petition and without disclosing the same, the Special

Leave Petition is filed before this Court. With

reference to allegations made in the appeal, it is

stated that being a veteran freedom fighter in Indian

freedom struggle, he had suffered various losses and

hardships including imprisonment (not limited to

imprisonment of six months in 1944). Moreover, he had

to go underground for more than a year in 1942 (August,

1942 to December, 1943), as he was facing detention

orders.

11. Further, it is stated that as he has actively

participated in Quit India Movement, as a consequence

of his participation, he was sentenced and was lodged

in Alipuram Central Prison, for more than six months

from 05.01.1944 to 05.07.1944.

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12. While referring to his first application made in

the year 1997, it is alleged that such application made

by him was not dealt with due care by the appellant and

the appellant adopted a lethargic approach in

considering the application of the 1st Respondent. While

referring to his earlier rejection, it is stated that

such a rejection made by the appellant, on his first

application, was whimsical and arbitrary.

13. In response to the letter dated 30.08.2017,

addressed by the appellant, it is stated that he has

replied vide letter dated 07.09.2017, stating that all

other veteran freedom fighters had passed away and

except one Mr. A. M. Lakshmanan whose Co-Prisoner

Certificate has already been submitted along with the

certificate of one Mr. A. C. Periasamy, thus, he has

complied with all the requirements as contemplated

under the scheme, as such, there are no grounds to

interfere with the orders passed by the High Court.

14. We have heard Ms. Madhavi Divan, learned

Additional Solicitor General, appearing for the Union

of India and Mr. Divyanshu Srivastav, Advocate,

appearing for the respondent / writ petitioner.

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15. It is contended by the learned Additional

Solicitor General, appearing for the Union of India

that the learned Single Judge of the High Court has

disposed of the petition without issuing any notice and

without giving any opportunity of filing counter

affidavit to rebut the allegations, made in the writ

petition. It is submitted that while exercising powers

of judicial review under Article 226 of the

Constitution of India, the High Court has committed

error in issuing positive directions for grant of

pension.

16. It is submitted that when the scheme is prepared

for grant of pension with certain conditions, unless

compliance of such conditions is examined by the

competent authority, no directions ought to have been

issued, directing grant of pension.

17. It is submitted that at the first instance, the 1 st

Respondent has applied for grant of pension in the year

1997 and the same was forwarded by the 2nd Respondent

through 3rd Respondent without making any specific

recommendations and the same was rejected, after lapse

of several years, again, application is made for grant

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of pension. Even before the same is considered by the

competent authority, the 1st Respondent has approached

the High Court and the High Court has disposed of the

petition without giving opportunity of filing counter

affidavit.

18. It is submitted that in spite of raising several

grounds, the Division Bench also failed to consider the

same, and confirmed the order of the learned Single

Judge by dismissing the appeal filed by the appellant

herein.

19. Learned counsel in support of her arguments relied

on judgment of this Court in the case of W.B.Freedom

Fighters’ Organization v. Union of India and Others1

and also the judgment in the case of Union of India v.

Bikash R. Bhowmik and Others2.

20. On the other hand, Mr. Divyanshu Srivastav,

appearing for the 1st Respondent while refuting the

submissions made by the learned counsel appearing for

the appellant, has contended that though the respondent

has participated in the freedom struggle and suffered

losses apart from his imprisonment during the period of

1. 2004(7)SCC 716

2. 2004(7)SCC 722

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Quit India Movement, he is unduly deprived of the

pension, which he is entitled to, as per the scheme

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.2923 of 2019), it is

submitted that similar petition is already dismissed by

this Court and further, relying on the judgment of this

Court in the case of Union of India v. Sitakant S.

Dubhashi and Anr.3, learned Counsel has submitted that

there is no illegality in the impugned order passed by

the High Court and there are no grounds to interfere

with the same.

22. It is, further, submitted that the documents which

are already filed, are sufficient to grant pension as

per the Swatantrata Sainik Samman Pension Scheme and as

the appellant was not considering his application for

grant of pension, the learned Single Judge of the High

Court has rightly issued directions for grant of

pension. There are no grounds to interfere with the

same.

3. 2020(3)SCC 297

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23. It is not in dispute that at first instance, the

1st Respondent herein, has applied for grant of pension

in the year 1997 and the application dated 10.04.1997,

submitted by the 1st Respondent is placed on record. In

the said application, the 1st Respondent has stated that

he was underground during the Quit India Movement of

1942 i.e. during the period from August, 1942 up to a

period of more than six months. At that time, along

with the first application, the Non – Availability of

Records Certificate (NARC) obtained from the

Government, was not produced and 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 such communication from the 2nd respondent,

the claim of the 1st Respondent was considered and

rejected. The said order has become final and the same

was not questioned. Nearly after 13 years of such

rejection, on 29.08.2017, the 1st Respondent has again

claimed pension under the Swatantrata Sainik Samman

Pension Scheme on the plea of his imprisonment for more

than six months for participating in the Quit India

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Movement. The application, which is made for the second

time, is also placed on record as Annexure “P-5”. In

the said application, he has stated that he was

imprisoned for more than six months i.e. from

05.01.1944 to 05.07.1944, which is clearly in variance

to the period which he has mentioned in the first

application. Though, earlier rejection has become final

and the particulars mentioned in the claim made by the

1st Respondent are in variance to the particulars

mentioned at first instance, without issuing notice and

without giving opportunity to the appellant to file

counter affidavit, the learned Single Judge has

disposed of the petition by granting a positive

direction to grant pension. The claim of the 1st

Respondent is under the scheme, notified by the

appellant-Government. The scheme prescribes to file

certain documents to authenticate the imprisonment of a

claimant as a freedom fighter.

25. It is the case of the appellant that the

documentary evidence filed by the 1st Respondent is not

in compliance of the scheme. It is a matter which is to

be left to the competent authority to consider. When

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the application of the 1st Respondent is already

rejected in the year 1997, when such rejection order

has become final, it is not open for the 1st Respondent

to make a claim for second time for pension again by

way of fresh application. The 1st Respondent would be

entitled to the benefits of this scheme, if he produces

the relevant material in support of his claim. As

regards the sufficiency of proof, the scheme itself

mentions the documents which are required to be

produced along with the application. Whether the

claimant fulfills the criteria or not, it is for the

competent authority to examine it. Even before the

application is considered by the competent authority,

in exercise of powers of judicial review, the High

Court should not have issued any directions for grant

of pension. In this case, it is also to be noticed that

earlier the claim of the 1st Respondent is already

rejected and the said order has become final. After

perusal of the order passed by the learned Single Judge

and the Division Bench, we are of the view that no

valid reasons have been assigned to grant relief to the

1st Respondent for grant of pension. It appears that the

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1st Respondent has not disclosed his earlier rejection

by producing the earlier orders while making the

application for the second time before the appellant

and also before the High Court.

26. In any event, when such serious factual disputes

emerge for consideration, the High Court ought not to

have disposed of the petition filed by the Respondent

without even issuing notice and giving opportunity to

file counter affidavit to rebut the allegations made by

the appellant. The judgments of this Court, relied on

by the learned Additional Solicitor General in the case

of W.B.Freedom Fighters’ Organization v. Union of India

and Others1 and in the case of Union of India v. Bikash

R. Bhowmik and Others2 will support the plea of the

appellant. In the case of W.B.Freedom Fighters’

Organization v. Union of India and Others, this Court

has held that when the competent committee has

considered and opined that the applications were not

supported by required documents and rejected the

application, this Court cannot interfere with the same

and such findings cannot be said to be perverse or

unreasonable.

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27. Further, in the case of Union of India vs. Bikash

R. Bhowmik and Others2, this Court has held that the

pension under Swatantrata Sainik Samman Pension Scheme

of 1980 can be sanctioned as per the proof required

under the scheme and in no other manner. In the said

judgment, this Court has reversed the order passed by

the High Court.

28. In the instant case, the appellant stands on a

better footing, for the reason that although the

application made by the 1st Respondent on 10.04.1997 was

rejected and the said order has become final, he again

approached the appellant with the same request. Even

before the Competent Authority considers the

application, the 1st Respondent approached the High

Court by filing Writ Petition and the High Court, not

only entertained the petition, but disposed of the same

without even notice 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 various grounds raised by the

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appellant, while confirming the order of the learned

Single Judge.

30. It may be true that the 1st Respondent is getting

pension as per the scheme, mooted by the State, but, at

the same time, to claim pension under the scheme of

1980, the 1st Respondent has to furnish the required

proof as contemplated under the scheme. When the claim

is under a particular scheme, unless one fulfills the

eligibility criteria for grant of pension, as mentioned

in the scheme, no applicant can claim such 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 in rejecting the Special

Leave Petition in limine and also, further, judgment of

this Court in the case of Union of India v. Sitakant S.

Dubhashi and Anr.3, we are of the view that the order

passed by this Court and also the judgment in the case

of Union of India v. Sitakant S. Dubhashi and Anr.

would not render any assistance in support of his

claim. Whether a particular applicant is entitled for

pension under the Swatantrata Sainik Samman Pension

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Scheme of 1980, is a matter which is required to be

considered having regard to facts and documentary

evidence produced in each case, as such, the judgment

relied on by the learned counsel is of no assistance to

support his case.

32. In view of the reasons, stated supra, we allow

this appeal and set aside the judgment dated 29.08.2018

passed in W.A.(MD) No.907 of 2018 by the Madras High

Court (Madurai Bench) and consequently, the Writ

Petition filed in Writ Petition (MD) No.17290 of 2017

stands dismissed, with no order as to costs.

……………………..J.

(ASHOK BHUSHAN)

……………………..J.

(R. SUBHASH REDDY)
NEW DELHI;

February 22, 2021

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