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2000 DIGILAW 608 (PAT)

Chiranjib Jha @ Jhallu Jha v. Union Of India

2000-04-20

S.K.CHATTOPADHYAYA

body2000
Judgment 1. In this application the petitioner has impugned the order dated 18.10.1995 by reason of which the Central Government has refused to grant freedom fighter pension to the petitioner. Prayer has been made to command the Respondents to give him pension. 2. It appears that the petitioner filed an application for grant of such pension on the ground of suffering of underground agony from September, 1942 till the independence. In November, 1977 the petitioner was informed by the Central Government that the State Government has not forwarded his application with its recommendation and as such, he was advised to pursue the matter at the State level. The petitioner started pursuing the matter till 1980 but nothing happened. According to him, he had already filed original documents pursuant to the scheme of 1972 and at this time he enclosed the necessary documents in support of his claim as required under the scheme, 1980. He also enclosed PKC of one Sital Prasad Singh and other freedom fighters, who are getting freedom fighter pension. The State Government asked the petitioner to send the original certificate granted by Sital Prasad Singh and also any evidence based on the basis of Government record. The original certificate of Sital Prasad Singh was sent along with several documents. 3. The petitioner was made accused in two criminal cases for his participation in freedom movement in 1942. According to the certificate of the officer-in-charge, Mahdepur police station, the petitioner was named in the warrant list of the movement in 1942 but since due to leakage of water from roof the documents have been destroyed by white ants, so warrant number is not available. This certificate of the police station is annexure-6 to the writ application. The petitioner was also given a certificate showing that the record of G.R.No. 649/42 was destroyed. The same certificate was also given to him in respect of another criminal case being G.R.No. 632/42. He sent photo copies of both the certificates to the Government of Bihar. A report was called for from the District Magistrate, Darbhanga as to whether non- availability certificate of court records was issued from the Collectorate record room and it was answered in affirmative by the District Magistrate, Darbhanga. 4. He sent photo copies of both the certificates to the Government of Bihar. A report was called for from the District Magistrate, Darbhanga as to whether non- availability certificate of court records was issued from the Collectorate record room and it was answered in affirmative by the District Magistrate, Darbhanga. 4. The petitioner was informed by the State Government by letter dated 5.2.1986 that the certificate issued by Sital Prasad Singh was not found admissible by the Union of India and, as such, some other certificates from another important freedom fighter of his district may be sent. This time he obtained a certificate from one Kulanand Vaidik and the same was sent to the Government of Bihar. Said Kulanand Vaidik was requested to inform as to whether the said certificate was granted by him to the petitioner. Sri Vaidik informed the State Government about genuineness of his certificate. Another freedom fighter, Prem Chandra Mishra, ex-M.L.A. made an enquiry on behalf of Madhubani, District Freedom Fighters Advisory Committee and came to the conclusion that the claim of the petitioner was genuine. On behalf of the said committee he recommended his case to the Bihar State Freedom Fighter Advisory Committee in September, 1989. Photo copies of some affidavits sworn by other freedom fighters have been annexed in this writ application showing that being a freedom fighter the petitioner was underground in the freedom movement. 5. Ultimately the State Government recommended the case of the petitioner to the Central Government on 6.1.1990 (annexure -17). The Central Government, however, after scrutiny found that the name of the petitioner was not mentioned in court case G.R. No. 649/42. This order of the Central Government was challenged by the petitioner in C.W.J.C.No. 1819/94 mainly on the ground that he was involved in two cases namely G.R. 649/42 and G.R.No. 632/42 and as the record of G.R.No. 649/42 was destroyed the rejection of the claim of the petitioner was not justified. The writ was allowed by setting aside the order as contained in annexure-18 and the matter was remitted to the Central Government for fresh consideration. The petitioner was given liberty to remove infirmities for consideration of his claim by sending fresh certificate and complying with other requirements within a period of one month. The High Court order is annexure-19 to the writ application. 6. The petitioner was given liberty to remove infirmities for consideration of his claim by sending fresh certificate and complying with other requirements within a period of one month. The High Court order is annexure-19 to the writ application. 6. On 16.8.1995 another application was sent by the petitioner along with a certificate granted by one Bhagirath Jha. This time the Under Secretary, Ministry of Home Affairs, Freedom Fighters Division (Respondent no. 3) informed the petitioner that his claim was again considered pursuant to the order of the High Court but has been rejected. Ground for rejection is that the petitioner who was an accused in G.R.No. 649/42 and G.R.No. 632/42 did not relate to the case instituted by the State against Bindeshwari Singh as claimed by him. The certificates of different freedom fighters were not accepted and the certificate granted by Bindeshwari Singh was neither verified nor attested. However, it was also observed that if in future the petitioner claims for such pension on some other documents, the same shall be considered. This letter is dated 23.10.1995 (annexure-20). Pursuant to that order the petitioner again sent several documents including verified/attested copies of the certificate granted by said Bhagirath Jha and also a medical certificate indicating injury of fire arms in his leg. 7. Referring to the decision of the learned Single Judge dated 20.7.1998 in C.W.J.C.No. 5075/97 it is submitted that on similar circumstances when pension granted to one Shyamanand Pathak was cancelled on the basis of aforesaid G.R.No. 632/42, this court set aside the said order holding that the ground for rejection of the claim of the petitioner was based on wrong facts. 8. Learned counsel for the petitioner has contended that when on similar facts and circumstances the case of Shyamanand Pathak was allowed by this Court there is no reason as to why the petitioner should also not get the benefit under the scheme. 9. At the outset I may mention here that against the decision of the learned Single Judge in the case of Shyamanand Pathak (Annexure-23) the Union of India preferred L.P.A. No. 353 of 1999 which has been allowed by the Division Bench of this Court by its order dated 31.1.2000. Thus, in my view, the petitioner cannot get any help from the decision of the learned Single Judge in the case of said Shyamanand Pathak. 10. Thus, in my view, the petitioner cannot get any help from the decision of the learned Single Judge in the case of said Shyamanand Pathak. 10. From the averments made on behalf of the Union of India in the counter affidavit it appears that even after the direction of this Court the case of the petitioner was meticulously considered by the authority. In paragraph 3(e) of the counter affidavit the reasons have been explained as to why the case of the petitioner was not found favour with the answering respondents. It was found that though the petitioner furnished NARC of two G.R. Case Nos. 649/42 and 632/42 but his name did not figure in the original G.R.No. 649/42 available in the Ministry. So far NARC relating to G.R.No. 632/42 is concerned it was found that in the said NARC the name of the parties was mentioned as Government V/s. Bindeshwari Singh. According to the verification report of the District Magistrate the said G.R.No. 632/42 was between Government and one Kubi Kunjra. Similarly PKC of Bhagirath Jha was not acceptable as the same was not verified by the certifier. Moreover, according to the Respondents, PKC is considered only when the court record is not available and the applicant has submitted NARC. In the case of the petitioner court record for G.R.No. 649/42 is available in which his name is not mentioned. Similarly the names of the parties are different in G.R. No. 632/42 which is mentioned in NARC submitted by the petitioner relating to this case. 11. It is well settled that when the Government on consideration of materials has found that the documents furnished by the applicant were not sufficient to hold that the petitioner was a freedom fighter and thus not entitled to get pension, the High Court will not scrutinise the materials for coming to a different conclusion. Recently in the case of Union of India V/s. Shyamanand Pathak in L.P.A.Nos 353 and 646 of 1999 while allowing the appeal preferred by the Union of India the Division Bench has observed as follows : "The balance which remains is the record, which is disputed by the Union of India. On these disputed question of facts the Court cannot direct that the petitioner should continue to receive the freedom fighter pension." 12. On these disputed question of facts the Court cannot direct that the petitioner should continue to receive the freedom fighter pension." 12. In the instant case, as noted above, when initially the Central Government refused to allow the claim of the petitioner after considering the materials available on record, the petitioner moved this Court in writ application. The rejection order of the Central Government was not found favour with this court and the said order was set aside and the petitioner was given options to file other certificate, which the petitioner did. This time the Central Government, pursuant to the direction of this Court, again perused the documents and has refused to grant pension to the petitioner by giving cogent reasons. In the counter affidavit the Respondents have explained the circumstances and the reasonings for not accepting the claim of the petitioner. These averments remained uncon-troverted because the petitioner has not challenged the same by filing any rejoinder. 13. Under these circumstances, in my view, this Court in exercise of its power under Article 226 of the Constitution cannot direct the Respondent-Central Government to grant freedom fighter pension to the petitioner if it is not satisfied with the genuineness of the claim of the petitioner. There is some limitation even for the writ court in such type of cases. 14. In the result, I find no merit in this application. It is, accordingly, dismissed.