IMPORTANT POINT
Undeserving candidates should not be allowed to take benefit of welfare schemes like Swatantrata Sainik Samman Pension Scheme, 1980.

JUDGMENT

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.

2. 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.

3. 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.

4. 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.

5. The learned counsel for the appellants submitted that pension was rightly withdrawn.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. Thus, at the age of 7 to 8 years, the claim that he participated in freedom struggle could not be said to be believable.

6. 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.

7. 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.

8. 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-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