Brijnandan Singh v. State Of Bihar — 1995 DIGILAW 51 (PAT)

Judgment K.Venkataswami, J. 1. This writ petition is directed against the order dated 28-6-1989 issued under the signature of the Under Secretary to the Government of India, Ministry of Home Affairs, vide his letter bearing No. 0/14/G/24678/74. By the impugned order the Freedom Fighters pension granted to the petitioner at the rate of Rs. 200.00 per month has been cancelled with a direction to the Government of Bihar to initiate legal action against the petitioner for mis-representation to get the pension and further to recover the amount of pension already drawn by the petitioner. The petitioner also further prays for issue of a writ of mandamus commanding and directing the respondents to restore the pension already granted with arrears and to continue to pay the same. 2. Brief facts may not be noted. The petitioner, claiming to be a Freedom Fighter and in this connection has suffered imprisonment first in the year 1930 from July to December and second time in 1942 from February to March, applied in the prescribed from for grant of pension. Along with the application from, he enclosed a certificate given by his co-prisoner in the Gaya Jail by name Shri Bigneshwar Mishra Ex. M.P. The said application was forwarded by the State Government to the Government of India and on the basis of the application supported by Co-prisoners certificate and on the recommendation of the State Government, provisional pension was sanctioned to the petitioner vide letter dated 19-11-1975 by the 9th respondent. Pursuant to that, the petitioner was getting pension till 6-4-1978 and thereafter the pension was withheld. 3. It appears from the averments made in the petitioners application and also from the counter-affidavit filed on behalf of the 9th respondent that said Sri Bigneshwar Mishra, Ex. M.P., who had given a Co-prisoners certificate to the petitioner, had later on filed an application to the effect that he gave the certificate to the petitioner under duress. Based on that and also on a report of the District Magistrate, Gaya, stating that the petitioner was not a genuine Freedom Fighter but had obtained the pension by a fraudulent means, the pension was suspended on the recommendation of the State Government. The State Government also recommended to take legal action against the petitioner for mis-representation. Based on that and also on a report of the District Magistrate, Gaya, stating that the petitioner was not a genuine Freedom Fighter but had obtained the pension by a fraudulent means, the pension was suspended on the recommendation of the State Government. The State Government also recommended to take legal action against the petitioner for mis-representation. Accordingly, a show cause notice was issued to the petitioner to explain why the pension sanctioned should not be cancelled and the amount already paid be not recovered from him. A reply to the show cause notice was given by the petitioner, on the basis of which, the Additional Collector, Gaya, submitted a report. The report is annexed as Annexure-4 to the Writ petition. Concluding part of the report says that in absence of record it was not possible for him to answer correctly as to for what period the petitioner suffered imprisonment. It is also stated that though the name of the petitioner finds a place in the court record, in the absence of fathers name and other details, it was not possible to connect that with the petitioner. The Additional Collector also enclosed one certificate issued by one Nand Kumar Singh, said to have been a co-prisoner, stating that the petitioner was in jail only giving the year without giving the exact period of imprisonment suffered by the petitioner. 4. No doubt, the State Government, on the basis of the certificate and the enquiry conducted by the Additional Collector, recommended the case of the petitioner for restoration of Freedom Fighter and pension, but as no action was taken on the recommendation of the State Government, the petitioner, once again in support of his claim, obtained certificates from two other co-prisoners of Gaya Jail, by name, Shri Lakhpat Singh and Shri Musafir Singh, to show that he had undergone imprisonment in connection with the Freedom movement and got forwarded his representation through the Director-cum-Joint Secretary to the Department of Home, Government of Bihar, to the Government of India, Ministry of Home Affairs. The Sate Government once again recommended for restoration of the pension on the basis of the two certificates given by two co-prisoners of the petitioner. Nevertheless the impugned order was passed not only cancelling the pension of the petitioner but. also for further action as mentioned above. Hence the present Writ application. 5. The Sate Government once again recommended for restoration of the pension on the basis of the two certificates given by two co-prisoners of the petitioner. Nevertheless the impugned order was passed not only cancelling the pension of the petitioner but. also for further action as mentioned above. Hence the present Writ application. 5. The petitioner challenges the impugned order on the ground that the same was passed without the application of mind and without giving due weightage of the recommendation of the State Government and also of the documentary evidence submitted by the petitioner in support of his claim. According to the petitioner, the documents on the record along with the Enquiry report will prove beyond doubt that the petitioner had undergone imprisonment in connection with the Freedom Fighters movement first in the year 1930 and on second occasion in the year 1942 and, therefore, the cancellation of the Freedom Fighters pension to the petitioner is unjust and unsustainable. 6. The 9th respondent has filed a counter affidavit. While generally admitting the facts narrated in the Writ application, it is pointed out in the counte affidavit of the 9th respondent that the enquiry report of the Additional Collector as contained in Annexure-4 is of no help to the petitioner as it has not given any definite answer to the quaries made to him. On the other hand, the report was to the effect that in the absence of the records, no definite opinion can be given on the queries made lo him. Regarding the certificate given by Nand Kumar Singh, it is stated that the certificate mentions only the year and not the period and, therefore, that was also not helpful. Regarding certificates subsequently produced, counter-affidavit filed on 20-1-1995 on behalf of the 9th respondent, in Paragraphs 11 and 12 reads as follows: That in reply to the statement made in Paragraph 13 it is stated that the State Government vide letter dated 29-11-1982 (Annexure-6) has recommended for restoration of the suspended pension on the basis of certificates of Sri Nand Kumar Singh and Mr. Umeshwari Charan which is contrary to the actual facts of the case. Sri Nand Kumar Singh has certified co-prisonership with the petitioner from February to August, 1943 (Annexure-14) and Sri Umesh wari Charan has certified co-prisonership with the petitioner from September, 1930 to December, 1930 (Annexure-15). Umeshwari Charan which is contrary to the actual facts of the case. Sri Nand Kumar Singh has certified co-prisonership with the petitioner from February to August, 1943 (Annexure-14) and Sri Umesh wari Charan has certified co-prisonership with the petitioner from September, 1930 to December, 1930 (Annexure-15). The petitioner has claimed punishment for two months in 1942 and six months in 1930. Thus, the claim of the petitioner does not tally with certified period by S/Shri Nand Kumar Singh and Umeshwari Charan and thus not acceptable. The petitioner has tried to obtain different certificates from different persons in order to get pension by fraudulent means. That in reply to the statement made in Paragraphs 14 and 15 of the Writ application it is stated that here the petitioner again put forward his claim on the basis of the certificates granted by Sri Lakhpat Singh and Musafir Singh. From the perusal of a certificate granted by Sri Lakhpat Singh it appears that the same does not disclose the fact in which year the petitioner was in jail as freedom fighter. The case of the petitioner was thoroughly examined on the basis of the aforesaid certificates and it was found that both the Certificates were not acceptable as the certificate granted by Sri N.KL Singh did not tally with the suffering claimed by the petitioner and Sri Umeshwari Charan has only certified for three months jail suffering by the petitioner and, therefore, the case of the petitioner for restoration, of his pension has rightly been rejected by the Government. Further in Paragraph No. 16 of the said counter-affidavit of the 9th respondent, in support of cancellation of the pension of the petitioner, it has been stated as follows: . That in reply to the statement made in Paragraph No. 21 it is stated that the case of the petitioner was again thoroughly examined on the basis of the State Government letter dated 2-9-1986 and it was found that the claimed period of jail suffering preferred by the petitioner does not tally with the certificates granted by S/Shri Nand Kishore Singh, Umeshwari Charan, and Musafir Singh and thus six months jail as claimed by the petitioner could not be established. It was found that die pension was earlier suspended on the basis of the report submitted by the District Magistrate, Gaya, who in this report had mentioned that the petitioner did not take part in National Freedom Movement and obtained pension by fraudulent means. The pension of the petitioner was thus cancelled from the date on which the pension was sanctioned vide letter dated 28-6-1989 and the State of Bihar was directed to recover the pension having been received by the petitioner as he used fraudulent means for obtaining pension. 7. Learned Counsel appearing for the 9th respondent advanced argument on the basis of the counter-affidavit, as extracted above she also brought to our notice that the pension already sanctioned clearly mentions that the sanction was on the provisional basis and liable to be cancelled or modified if it is found that it was sanctioned on mistaken grounds. The 9th respondent having found that the sanction was in mistaken ground supported by materials, in particular, withdrawal of co-prisoners certificate given by Bigneshwar Mishra, which was the only evidence attached with the petitioners application, it can not be said that the impugned order is unjust or unsustainable. learned Counsel also submitted that a perusal of the counter-affidavit will show that the 9th respondent, before passing the impugned order, has thoroughly gone into the facts and, therefore, the contention that the impugned order was passed without the application of mind, can not be sustained. 8. We have gone through the affidavit and the counter-affidavit, we also bear in mind that the order sanctioning the pension in favour of the petitioner was a provisional one subject to be cancelled or modified as mentioned in the order itself. In the absence of clear proof to substantiate the claim of the petitioner that he was not only Freedom Fighter but had also undergone imprisonment for the required period to become entitled to get pension, we are not in a position to hold that the impugned order was passed without application of mind or in arbitrary manner. However, we feel that the order for recovery of the amount already received and initiation of action for mis-representation is not called for in the facts and circumstances of the case. However, we feel that the order for recovery of the amount already received and initiation of action for mis-representation is not called for in the facts and circumstances of the case. We feel that merely because the petitioner is not in a position to substantiate his claim with reference to the Government record, one can not jump to the conclusion that he is not a freedom fighter or he had not undergone imprisonment as claimed by him particularly in view of the recommendation of the State Government for restoration of his pension. 9. In the circumstances, while sustaining the impugned order in so far as it relates to cancellation of pension granted to the petitioner, we hold that further order directing recovery of pension already paid and further direction to the State Government to initiate action for mis-representation is set aside. The Writ petition is disposed of accordingly. No cost. 10. S.J. Mukhopadhaya, J. I agree.