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Smt. Dawarka Devi Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 377 of 1984
Reported inAIR1986HP72
AppellantSmt. Dawarka Devi
RespondentUnion of India (Uoi) and anr.
Appellant Advocate Kedar Ishwar, Adv.
Respondent Advocate P.A. Sharma, Central Govt. Standing Counsel and; L.S. Panta, Dy. Adv. General
DispositionPetition allowed
- .....c.j.1. the petitioner, aged about 76, is the widow of one khem chand who died on july 3, 1981. khem chand was a subject of the former princely state of mandi. the said princely state merged with the union of india after independence and became a part of himachal pradesh on may 1,1948. khem chand was appointed as ahlmad in the judicial department of the ex-state of mandi on 12th bhadon 1983 bk (27-8-1926). khem chand was placed under suspension on 27th chet 1994 bk(9-4-1937) for taking part in the praja mandal movement which was launched in the said native state. on 11th baisakh 1994 bk (23-4-1937), khem chand was dismissed from service with effect from the date of his suspension. a copy of the service record of khem chand, which is on the record at annexure pb, evidences the facts.....

P.D. Desai, C.J.

1. The petitioner, aged about 76, is the widow of one Khem Chand who died on July 3, 1981. Khem Chand was a subject of the former Princely State of Mandi. The said Princely State merged with the Union of India after independence and became a part of Himachal Pradesh on May 1,1948. Khem Chand was appointed as Ahlmad in the Judicial Department of the ex-State of Mandi on 12th Bhadon 1983 BK (27-8-1926). Khem Chand was placed under suspension on 27th Chet 1994 BK(9-4-1937) for taking part in the Praja Mandal movement which was launched in the said native State. On 11th Baisakh 1994 BK (23-4-1937), Khem Chand was dismissed from service with effect from the date of his suspension. A copy of the service record of Khem Chand, which is on the record at Annexure PB, evidences the facts set out above.

2. On 19th Jeth 97 BK (31-5-1940), Khem Chand was re-employed as Ahlmad by the ex-Princely State of Mandi. Be it stated, however, that the employment given accordingly was of a fresh and temporary nature and that the benefit of past service of about eleven years was not given to him. Khem Chand actually joined duty on 21st Jeth 1997 BK (2-6-1940). Even after his fresh employment as aforesaid, Khem Chand continued to take part in the Praja Mandal Movement, which, according to the petitioner, resulted in his being harassed by the police authorities. Under the circumstances, Khem Chand resigned from service after about six years on 16th Sawan 2003 BK (31-7-1946).

3. After the merger of the Princely State of Mandi in the Union of India, Khem Chand was again appointed by the District and Sessions Judge, Mandi and Chamba as Ahlmad in a temporary capacity without giving him the benefit of past services. His pay too was fixed at the minimum in the pay scale admissible to the post of Ahlmad. The fresh appointment accordingly was made on April 5. 1955 (Annexure PC) with effect from April 6, 1956.

4. Khem Chand attained superannuation in 1966 and thereupon he was retired and pension at the rate of Rs. 40/- per month was sanctioned to him. While determining the pension, the past services rendered by him in the post of Ahlmad in two different broken periods totalling about sevente'en years were not taken into consideration.

5. The Government of India awarded 'Tamra Patra' to Khem Chand in the year 1975 for the services rendered by him in the struggle for freedom. A copy of the 'Tamra Patra' is annexed as Annexure PG to the petition.

6. On Mar. 21, 1974, Khem Chand made an application claiming pension under the Freedom Fighters Pension Scheme, 1972 (hereinafter referred to as 'the Scheme') which came into force on and with effect from Aug. 15, 1972. Be it stated that the said application was duly recommended for favourable consideration by the State Government by a communication dated March 27, . 1976 (Annexure PK). The application was, however, rejected and Khem Chand was informed that his case was not covered by the Scheme since 'no permanent loss of job is involved' (Annexure PL). Upon receipt of the said communication, Khem Chand made an application (Annexure PM) for the review of his case on compassionate grounds. It is not clear from the record whether the said review application was processed and decided. However, after demise of Khem Chand, the petitioner made an application for family pension under the Scheme and the said application was again rejected on May 11, 1984 on the ground that Khem Chand's loss of service was not permanent and, on one occasion, it was voluntary (Annexure PO).

7. The petitioner has thereupon instituted the present petition claiming the benefit of family pension under Clause (f) of the explanation appended to the eligibility clause of the Scheme read with the provision regarding the grant of family pension, inter alia, to the widow of a Freedom Fighter.

8. The Scheme (Annexure PD) provides for the grant of pension to living freedom fighters or to their families,, if they are no more alive, and to the families of martyrs. 'Family', as defined in the Scheme, includes, amongst others, the widow of the Freedom Fighter. The Scheme (uses) the word 'Freedom Fighter' in six different defines clauses. In the instant case, we are concerned with Clause (f) which reads as under :

'(f) A person who lost his job, civil or military, or means of livelihood for participation in National movements.'

9. The precise submission of the petitioner is that the case of Khem Chand is covered by Clause (f) inasmuch as he was dismissed from serviceon 11th Baisakh 1994 BK (23-4-1937) after rendering about eleven years of service as Ahlmad in the ex-Princely State of Mandi on account of his participation in the Praja Mandal movement The petitioner contends that the subsequent re-employment of Khem Chand on two different occasions in the same post does not operate as a bar against her claim for family pension inasmuch as on both these occasions the employmenl was made afresh and the benefit of the past services was not given to Khem Chand for any purpose whatsoever. For all inlents and purposes, therefore, Khem Chand must be regarded as having lost his job when he was dismissed from service on April 23, 1937 and his subsequent re-employ men t on the terms and conditions referred to above could not detract from the conclusion with regard to such loss of job.

10. In the affidavit-in-reply filed on behalf of the first respondent (Union of India), the stand adopted on the earlier occasions has been reiterated. In other words, the defence is that since Khem Chand was re-employed after his dismissal and since after such re-employment he tendered his resignation, Khem Chand's case was not covered under Clause (f) of the Scheme and the petitioner's claim for family pension was not well-founded.

11. The moot question which precisely arises for determination is whether on a true and proper interpretation of Clause (f), the loss of job or means of livelihood on account of participation in the National Movement must be of a permanent nature. Be it stated that the factual position concerning Khem Chand is not in dispute and that the only controversy between the parties centres round the question of eligibility under Clause (f) of the Scheme which depends for its resolution on the ascertainment of the true scope and effect of the said clause.

12. Now, Clause (f), in the first place, does not specifically provide for permanent loss of job or means of livelihood. Since the word 'permanent' does not find place in Clause (f), following the rule of literal construction, it would not be permissible to read such a requirement by implication in the said clause. It is pertinent to bear in mind in this connection that in the immediately preceding Clause (i), the word 'permanently' is used while prescribing the eligibility for pension in case of persons who had become incapacitated due to firing or lathi charge. In the next place, such construciton would lead to a manifest contradiction of the apparent purpose of the Scheme which is to give monetary compensation in the form of pension to those Freedom Fighters or their families, if they are no more alive, who, on account of their participation in the National Freedom Struggle, have suffered or sacrificed in one of the diverse ways mentioned in the Scheme. As some of the sub-clauses of the eligibility clause indicate, even in such suffering is for a limited period or duration, the Freedom Fighter or his family, as the case may be, becomes eligible for pension. For example, the period of imprisonment or of remaining underground or of externment, as prescribed, need not exceed six months and, in case of imprisonment, even broken periods are required to be totalled up and normal remission and under trial period are to be taken into consideration. Besides, a person in respect of whom an award for arrest was announced or whose detention order was issued but was not served are also eligible for pension. Against such backdrop, the insistence upon permanency of loss of job or means of livelihood would defeat the manifest purpose of the Scheme, especially in cases of those Freedom Fighters who have suffered the loss of job or means of livelihood for a reasonably long period. In the last place, assuming without accepting that the loss of job must be permanent, on the facts and in the circumstances of the case, even that condition must be regarded as having been satisfied. To recapitulate the facts Khem Chand was dismissed from service after having served initially for a period of about eleven years and he remained out of employment for a period of about three years thereafter. His re-employment, fresh and temporary, which lasted for about six years, came to an end when he tendered resignation which was not voluntary but under compulsion of circumstances. Yet another re-appointment, again afresh, came his way only after about a decade and it lasted also for only a decade. It is manifest that on the whole Khem Chand was out of employment for a period of about thirteen years on account of his participation in the Praja Mandal Movement and that each of his re-employmentwas a new inning for him or like a new appointment in any other job with no advantage given for the past services. His salary on each fresh employment was fixed at the lowest stage in the pay scale and even the superannuation pension was fixed by ignoring the aggregate of about seventeen years of service rendered by him in two different spells. If this is not to be regarded as a permanent loss of his initial job within the meaning of Clause (f), such operation of the relevant provision of the Scheme would not only defeat its object and purpose but also result in absurdity, hardship and injustice which could not have been intended.

13. For the foregoing reasons, in our opinion, the claim for pension advanced by Khem Chand, while he was alive, and for the family pension by the petitioner after his death, was rejected by the first respondent on a misconception as to the true scope, purport and effect of Clause (f). The petitioner is, therefore, entitled to succeed in the present petition. A writ will issue directing the first respondent to compute the pension payable to Khem Chand from the date of his application, that is, March 21, 1974 till the date of his death on July 3, 1981 and thereafter to the petitioner by way of family pension. The arrears of pension up to the date of his death will become payable to the heirs of deceased Khem Chand and so far as the arrears of family pension after his death are concerned, the same will be payable to the petitioner. Upon the petitioner placing on the record of this case within a period of four weeks from today an affidavit disclosing the names of all the other heirs of deceased Khem Chand and upon these heirs simultaneously filing affidavit(s) giving up their claim to the arrears of pension payable to them, such arrears will be released to the petitioner. Copies of such affidavits, if any, will be supplied to the learned Central Government Standing Counsel who will forward the same to the competent authority. The actual amount due and payable as and by way of arrears of pension under this head will be determined within a period of three months from the date of receipt of the copies of those affidavits by the first respondent. In the event of the heirs not relinquishing their claim to the arrears of pension payable to Khem by filing affidavits accordingly, such amount of arrears of pension will be deposited in the Registry of this Court within a period of four months from today. The petitioner will thereupon move the Court by an appropriate application for disbursal of the said amount in accordance with law. The family pension payable to the petitioner after the death of Khem Chand will be determined and the arrears will be released in her favour within a period of three months from today and the future monthly pension becoming due and payable on and from May 1, 1985 shall be paid and continued to be paid to her as and when it accrues due.

14. Rule made absolute accordingly. The first respondent will pay the costs of this petition to the petitioner which are assessed at Rs. 250/- The costs shall be paid with the arrears of pension due to her.

15. Dasti order on usual terms.

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