High CourtDivision Bench2007-02-15Appeal allowed

Union of India and Anr. v. Kaushala Ya Devi

Case / Petition Number:Civil Appeal No. 783 of 2007

Neutral Citation:SUPREME COURT REPORTS (2007) 2 S.C.R.

Case Details & Bench

Court: High Court
Hon'ble Judges: S. B. Sinha
Markandey Katju
Judgment Date: 2007-02-15
Court Decision / Holding: Appeal allowed. The impugned judgment is set aside and it is directed that the pension will be granted only from the date of the order for granting pension and not from the date of the application.
Final Disposition: Appeal allowed

Parties to the Case

Appellants / Petitioners

Union of India and Anr.

Respondents

Kaushala Ya Devi

Legal Representation & Advocates

Counsels for Petitioners

• Vikas Singh
• A.S.G.
• Sunita Sharma
• Sushma Suri

Counsels for Respondents

• Vinay K. Khuthiala
• Vandana Khuthiala
• Ashok K. Mahajan

Case Synopsis & Summary

This appeal concerns the timing from which the Freedom Fighters' Pension should be payable to the respondent. The central question is whether the pension should be granted from the date of the applicant's submission or from the date of the order granting the pension. The Supreme Court held that where a claim is allowed on the basis of secondary evidence rather than a jail certificate, the pension must be granted from the date of the order for granting pension, and not from the date of the application. The Court relied on Government of India v. K. V. Swaminathan to show that when the claim is resolved on the basis of benefit of doubt, pension is payable from the date of the order. In the instant case, the record shows the claim was allowed on the basis of secondary evidence—the oral statement of another detenue—rather than a jail certificate, so the pension must originate from the order date. The respondent's counsel relied on Mukand Lal Bhandari v. Union of India & Ors., AIR (1993) SC 2127, but the Court distinguished it as not controlling retroactivity in this context. Consequently, the appeal is allowed; the impugned judgment is set aside and the pension will be granted from the date of the order for granting pension, not from the date of the application.

Legal Doctrines & Maxims

Benefit of doubt

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that pension entitlement should be fixed from the date of the order granting pension, aligning with the principle that benefits should be granted from the earliest permissible date while avoiding retroactive awards when proof is not through jail certificates. They relied on Government of India v. K. V. Swaminathan to justify grant from the order date whenever the claim is resolved on benefit of doubt or non-certificatory evidence. They maintained that Mukand Lal Bhandari v. Union of India & Ors. is distinguishable, as it states that pension cannot be granted from any date prior to the application, but does not bar retroactive grant from a date after the application. They urged the Court to set aside the High Court judgment and direct that pension begin from the order date, arguing that this harmonizes policy with the need to pay pension where entitlement is proven, from the date the order is issued.

Contentions of Respondents

The respondents relied on Mukand Lal Bhandari v. Union of India & Ors., AIR (1993) SC 2127, to argue that pension cannot be granted before the application date. They contended that the claim was admitted on the basis of secondary evidence and not on jail certificates, and thus the appropriate anchor should be the application date. They referenced Government of India v. K. V. Swaminathan to support the principle of granting from the order date when the claim involves benefit of doubt, but their primary argument was to maintain a date anchored to the application date, consistent with the cited precedent.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Mukand Lal Bhandari v. Union of India & Ors.	AIR (1993) SC 2127	Distinguished	The Court distinguished this decision as controlling only that pension cannot be granted from dates prior to the application, not that it cannot be granted from a date after the application.
Government of India v. K. V. Swaminathan	(1997) 10 SCC 190	Positive	Cited to support the principle that pension should be granted from the date of the order when the claim is allowed on the basis of benefit of doubt.

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Extracted Judgment Text

Exact text extracted from official judgment records.

A ## UNION OF INDIA AND ANR. _v._ ## KAUSHALA YA DEVI FEBRUARY 15, 2007. _i_ B [S. B. SINHA AND MARKANDEY KA TJU, JJ.] _Freedom Fighter-Pension-Claim-Date from which to be allowedHeld: When claim is not allowed on the basis of jail certificate but on basis of oral statement of some other detenue, pension is to be granted from the_ C _date of order for granting pension and not from the date of application._ The question which arose for consideration in this appeal was whether the Freedom Fighters' Pension should be granted to the respondent from the date of the application or from the date of the order granting the pension. D v Allowing the appeal, the Court HELD: On the perusal of the record it is found that the claim was allowed on the basis of secondary nature of evidence. The claim was not allowed on the basis of jail certificate produced by the claimant but on the basis of oral statement of some other detenue. Hence, the pension should be granted from E the date of the order for granting pension and not from the date of the application. [Para 5) (7 46-E] _Mukand Lal Bhandari_ v. _Union of India_ & _Ors.,_ AIR (1993) SC 2127, distinguished. F _Government of India_ v. _K. V. Swaminathan,_ (1997) 10 SCC 190, relied on. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 783 of2007. From the final Judgment and Order dated 5.1.2005 of the High Court of G Himachal Pradesh at Shimla in CWP No. 143/2004. Vikas Singh, A.S.G., Sunita Sharma and Sushma Suri for the Appellants. Vinay K. Khuthiala, Vandana Khuthiala and Ashok K. Mahajan for the 745 fl 746 SUPREME COURT REPORTS (2007) 2 S.C.R. A Respondent. The Judgment of the Court was delivered by **MARKANDEY KAT JU, J.** I. Leave granted. **B** 2. This appeal has been filed against the judgment of the Himachal Pradesh High Court dated 5.1.2005 in Writ Petition No.143 of2004. 3. Heard learned counsels for the parties and perused the record. The short question in this case is whether the Freedom Fighters' Pension should be granted to the respondent from the date of the application or the date of C the order granting the pension. ## **D** 4. It •has been held by this Court in _Government of India_ v. _K. V. Swaminathan_ [1997] IO SCC 190 that where the claim is allowed on the basis of benefit of doubt, the pension should be granted not from the date of the application but from the date of the order. 5. In the present case, we have perused the record and found that it is stated th~rein that the claim was allowed on the basis of secondary nature of evidence. In other words, the claim was not allowed on the basis of jail '· certificate produced by the claimant but on the basis of oral statement of E some other detenue. Hence, we are of the opinion that the pension should be granted from the date of the order and not from the date of the application; 6. U:amed counsel for respondent has relied on the judgment of this Court in _Mukand Lal Bhandari_ v. _Union of India_ & _Ors.,_ AIR (1993) SC 2127. F 7. In our opinion that decision is distinguishable as it has been stated therein that the pension cannot be granted from any date prior to the application. In our opinion this does not mean that it cannot be granted from a date subsequent to the application. 8. For the reasons given above this appeal is allowed. The impugned G judgment is set aside and it is directed that the pension will be granted only from the date of the order for granting pension and not from the date of the application. N.J. Appeal allowed. **H**