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2000 DIGILAW 987 (PAT)

Ajab Lal Choudhary v. Union Of India

2000-08-11

S.K.CHATTOPADHYAYA

body2000
Judgment S.K.Chattopadhyaya, J. 1. The petitioners have impugned the orders dated 18th August, 1992, as contained in Annexures 8 and 8/1, by reason of which the Under Secretary, Government of India, Department of Home Affairs (respondent no. 2) has cancelled the Pension order granted to the petitioners and further ordered to recover the amount paid to them. Further prayer has been made to direct the respondent to pay the full amount of freedom fighters pension to them with effect from 1.8.80 with all arrears. 2. The facts of the case may bestated briefly. The petitioners applied for grant of pension under the Freedom Fighters Scheme on the ground that they participated in the freedom movement activities. Their case was scrutinised by the Advisory Committee of the State Government and being satisfied that both of them were accused in Sessions Case No. 61 of 1943 under Section 147 and 395 of the Penal Code read with Section 35(4) of the D.l.R. Act, recommended to the Central Government for grant of pension to the petitioners. At the first instance their case for such grant was rejected and the petitioners were asked to supply certain documents. On supply of all relevant documents interim pension was allowed to the petitioners. In the aforesaid criminal case the trial court acquitted four persons, who were arrested by the police and the present petitioners were shown absconders. The aforesaid sessions case was registered for an occurrence dated 12.5.43 and the same was decided after expiry of six months from the date of lodging of the first information report i.e. on 8.5.1944. The Advisory Committee took a decision on 28th/29th January, 1987 to grant pension to all the accused persons involved in Sessions Case No. 61/1943 and to this effect a letter was sent to respondent no. 2. This letter is dated 30.3.87, which is Annexure-1 to this writ application. The Central Government in turn asked to send the individual cases of the accused of the aforesaid case aiongwith two other cases giving individual information. This letter of the Central Government is Annexure-2. Thereafter prayer of the petitioners were rejected initially by the Central Government and they were asked to supply more proof in support of their case. The Central Government in turn asked to send the individual cases of the accused of the aforesaid case aiongwith two other cases giving individual information. This letter of the Central Government is Annexure-2. Thereafter prayer of the petitioners were rejected initially by the Central Government and they were asked to supply more proof in support of their case. In compliance of the said direction the petitioners supplied the documents, which were checked up by the High Level Committee of the State Government and being satisfied about the genuineness of the documents detailed information was sent to the Central Government and the same was accepted by it. The decision of the High Level Committee of the State Government dated 26.5.1989 is Annexure-3. The petitioners were allowed to draw interim pension by the Central Government, but subsequently the same was suspended while asking the petitioners to show cause as to why grant of their pension be not cancelled and legal action be not taken against them, as papers supplied by them were incorrect and were not genuine. This letter of the Central Government is Annexure-4 series. The petitioners filed their show cause to the competent authority asserting, inter alia, that the Government in past took all efforts to verify the correctness of the judgment and the same was found to be correct by the High Level Committee. Thorough verification was made regarding genuineness of the judgment of Sessions Case No. 61/43 and the Registrar of the Bhagalpur civil court verified the fact that the certified copy of the judgment in question was correct one. Thereafter it appears that a central team was sent for making investigation with regard to the case in question and to verify the genuiness of the judgment in question. Even after filing of the show cause when no decision was taken by the Central Government, the petitioners moved this Court in CWJC No. 2959 of 1990 alongwith others, in which the petitioners were petitioners no. 9 and 7 respectively. Similarly other applicants moved this Court in several writs and those were disposed of on 17.7.90 and 24.7.90 with a direction to the Central Government to dispose of the representation of those petitioners. As the case of the petitioners were also similar, these two petitioners also sent their show cause as contained in Annexures 7 and 7/1 during pendency of their writ bearing CWJC No. 2959/90. As the case of the petitioners were also similar, these two petitioners also sent their show cause as contained in Annexures 7 and 7/1 during pendency of their writ bearing CWJC No. 2959/90. The grievance of the petitioners is that after filing of their show cause neither any personal hearing was given to them, nor anything was considered, but without application of mind by impugned letters dated 18.8.92 to grant their pension was cancelled. 3. The Director-cum-Deputy Secretary Home (Special) Department of the Government of Bihar (respondent no.4) in his counter affidavit has, inter alia, asserted that though admittedly the State Advisory Committee earlier recommended the case of the petitioners for grant of SWATANTRATA SAINIK SAMMAN PENSION and the same was granted by the Central Government, but subsequently on C.B.I. enquiry it was revealed that the record of Sessions Case No. 61/43 was found to be manipulated and manufactured. On such enquiry, pension, which was granted to the petitioners, was suspended and later on cancelled. Thus, from the affidavit of respondent no. 4 it appears that though earlier the State Government after scrutinising the records of Sessions Trial No. 61 of 1943 was convinced about the genuineness of the records and thus recommended their case to the Central Government for grant of pension but subsequently when the Central Bureau of Investigation (C.B.I.) on enquiry found that the records of the said sessions case were manipulated and manufactured, the grant of pension was withdrawn. The Under Secretary, Freedom Fighter Division, Ministry of Home Affairs in his counter affidavit has specifically stated the reasons for disbelieving the genuineness of case records of Sessions Case No. 61/43. According to him, after grant of provisional pension to the petitioners, some suspicion arose in the mind of the authority about the genuineness of the documents and, as such, the case was handed over to the C.B.I. for enquiry. The C.B.I. on enquiry has reported that except court case number, name of the party and the name of the presiding Judge, all remaining details including the name of the absconders as well as accused persons had been fabricated. In view of this report of the C.B.I. the authority cancelled the grant of pension to the petitioners and in view of the policy of the Central Government, the amount drawn by them on such fraudulent method were directed to be recovered. Respondent no. In view of this report of the C.B.I. the authority cancelled the grant of pension to the petitioners and in view of the policy of the Central Government, the amount drawn by them on such fraudulent method were directed to be recovered. Respondent no. 2 has admitted in principle that if the official records were not forthcoming due to their non-availability, the certificate of veteran freedom fighter, who had undergone imprisonment for two years or more was to be treated as valid certificate, but according to him before accepting such Personal Knowledge Certificate referred to by the petitioners, the non-availability of the record certificate is also required to be filed alongwith those Personal Knowledge Certificate. The deponent has also assigned the reasons for referring the matter to C.B.I, in paragraph-13 of his counter affidavit. According to him the High Level Committee of the Central Government had compared with the photostat copy of the Bhagalpur Sessions Case No. 61/43 with the copy verified by the District Magistrate, Bhagalpur, and it was found that the entries in both the copies tally. However, later on, when it was felt that this High Level Committee was not a specialised one, which could satisfy the genuineness of the courts documents and a suspicion being raised on the genuineness of the record, the same was referred to C.B.I. The C.B.I. after investigation reported that the documents were fabricated and, as such, steps were taken by the Central Government, which resulted in cancelling the order of pension. 4. The petitioners have countered the assertions made by respondents no. 1 and 2 and 4 by filing respective rejoinders and their main ground of attack is that when the High Level Committee of the Central Government was satisfied about the genuineness of the documents, their grant of pension could not have been cancelled merely on the investigation report of the C.B.l. They specifically pleaded before this Court for production of the report of the C.B.I. so that the correctness of the said report may be judged, because various agencies have verified the correctness of the documents submitted by the petitioners and there was no reason for disbelieving those documents merely on conjectures and surmises. 5. On such prayer being made, by order dated 29.2.2000 this Court directed to Mr. 5. On such prayer being made, by order dated 29.2.2000 this Court directed to Mr. Karn, learned counsel for the Union of India to produce the report of the C.B.I. and other relevant records for perusal of the Court. Pursuant to that order the entire records including the C.B.I. report has been furnished. 6. Mr. Jha, learned senior counsel appearing on behalf of the petitioners, has attacked the impugned order by submitting that when pursuant to the show cause notice reply was given by the petitioners, the authority ought to have given them an opportunity of personal hearing and that being not done the entire order is vitiated. Secondly, he contends that the very order will show that the same has been passed without application of mind because when records were available the authority ought to have given a clear finding regarding doubtfulness of those records. Lastly, he contended that once the benefit was granted after due consideration the authority could not have asked for recovery of the said amount considering the age of the petitioners. 7. Mr. Karn appearing for the Central Government countering the argument of Mr. Jha submits that only because previously on some mistaken notion such pension was granted to the petitioners, the Central Government cannot be dabarred from reversing the said order, if subsequently on the basis of some enquiry it comes to a conclusion that such pensioners obtained pension by practising fraud and misrepresenting some facts. According to him the petitioners claim pension on abscondence and the State Government on the basis of the judgment passed in sessions case 61 of 1943 recommended the cases of 246 claimants and the Central Government on this basis granted pension to the petitioners provisionally with effect from 1.8.80. However, learned counsel continues, when on some information that the claimants by misrepresentation of facts obtained such pension, a C.B.I. enquiry was resorted to and on the basis of the report the order granting pension was cancelled. 8. In reply to these arguments, Mr. However, learned counsel continues, when on some information that the claimants by misrepresentation of facts obtained such pension, a C.B.I. enquiry was resorted to and on the basis of the report the order granting pension was cancelled. 8. In reply to these arguments, Mr. Jha contended that when the C.B.I. reported such facts against the petitioners and other claimants, a criminal case ought to have been instituted against them for forgery and that having not done, it should be presumed that the order cancelling pensionary benefit is not on the basis of any report of the C.B.I. His contention is that when the Directorcum- Deputy Secretary of the State of Bihar after due scrutinising recommended the case of the petitioners and other claimants, there was no question of any doubt afterwards. Lastly, he made a submission that as the report of the C.B.I. was not supplied to the petitioners, they have no knowledge about the same and, as such, the Court cannot rely on such report. 9. There is no dispute of the fact that previously the petitioners were granted such pension on the recommendation of the State Advisory Committee, but subsequently the C.B.I. found that the record of Sessions Case No. 61/43 was not only manipulated but manufactured too. This fact has been revealed by respondent no. 4 himself in his counter affidavit. Moreover, the Under Secretary, Freedom Fighter Division, Ministry of Home Affairs in his counter affidavit has categorically stated the reasons for disbelieving the genuineness of the records of Sessions Case no. 61/43. This brings us to consider the more relevant document i.e. the report of the C.B.I., which was produced before the Court on being directed. One R.S.S. Yadav, Inspector of Police, CBl/SPE, Patna, investigated the matter by visiting Bhagalpur in order to verify the concerned judgment of the Sessions court, Bhagalpur. He found that original documents/records including the judgments of the Sessions court for relevant dates had already been destroyed as per norms/guidelines. He further found from the informations available in the Index Register that the list of all accused persons are neither mentioned in the FIR nor in the chargesheet nor in the judgments in relation to Sessions Case No. 61/43 and 62/42. Some concerned officials, who were supposed to be acquainted with the judgment pronounced by the Sessions Judge during the relevant period opined before Mr. Some concerned officials, who were supposed to be acquainted with the judgment pronounced by the Sessions Judge during the relevant period opined before Mr. Yadav that all the said copies create doubt about their genuineness inasmuch as two of the said copies tally verbatim with each other except few words, specially name, places, date etc. suggesting fabrication by some unscrupulous persons. It was found that modus operandi was that except court, case number, name of the party and name of the concerned Judge, all remaining details including the name of absconders as well as accused persons were fabricated. It was further found that the real accused persons, who should be enlitled for such pension, could be identified. In the judgment of case no. 61/43 dated 8.5.44 accused Jagdish Bhagat, Gunnmed Choudhary, Dwarika Singh and Madan Mohan Prasad, whose names were mentioned in the last paragraph of the enclosed copy, were tried and were acquitted. Similarly, Satya Narain Tekriwal and Bhagwat Prasad also faced trial and acquitted and were entitled to get such pension. According to the enquiry report similarly situated persons, who faced trial, should be granted pension. After scrutinising the records at Bhagalpur Mr. Yadav has come to the conclusion, which is as follows: "In view of the referred facts and circumstances owing to destruction of the original records and insufficient informations available in the Index Register it is difficult to rebut the claim of the unscrupulous petitioners, though, all the said four copies of judgment appears to be prima facie fabricated. However, the names mentioned in the operating paragraph (s) of the said copies may be considered the long list of absconders appears to be interpolation." 10. In these backgrounds the question, which falls for consideration, is as to whether the Central Government was justified in cancelling its earlier order of granting pension to the petitioners? 11. It is to be kept in mind that in order to pay respect to the freedom fighters of this country the Central Government has come with a scheme, which was earlier known as Freedom Fighters Pension Scheme but subsequently came to know as Swatantrata Sainik Samman Pension Scheme. The very object of the scheme is to provide some monetary help to living freedom fighters, their families if they are no more alive, and to the families of martyrs. The very object of the scheme is to provide some monetary help to living freedom fighters, their families if they are no more alive, and to the families of martyrs. Eligibility criteria for such grant are as follows: For the purposes of this scheme, a Freedom Fighter is : (a) A person who has suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex-lNA or ex-Military personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. Explanation : 1. Detention under the orders of the competent authority will be considered as imprisonment. 2. Period of normal remission will be treated as part of actual imprisonment. 3. In the case of a trial ending in conviction, undertrial period will be counted towards actual imprisonment suffered. 4. Broken periods of imprisonment will be totalled up and counted as one. (b) A person who remained underground for more than six months provided he was 1. a proclaimed offender; or 2. one on whom an award for arrest was announced; or 3. one for whose detention order was issued but not served. (c) A person interned in his home or externed from his district provided the period of internment/externment was for six months or more. (d) A person whose property was confiscated or attached and sold due to participation in the freedom struggle. (e) A person who became permanently incapacitated during firing orlathi charge. (f) A person who lost his job, civil or military or means of livelihood for participation in National movements. A Martyr is a person who died or who was killed in action or in detention or was awarded capital punishment while participating in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British. The claimant for such pension must apply in prescribed form and should furnish certain documents, which are also mentioned in the scheme itself. The documents, which are required to be furnished are as follows : (a) Imprisonment/detention etc. Certificates from the concerned jail authorities, District Magistrates or the State Governments. In case of nonavailability of such certificates, coprisoner certificate from a sitting M.R or M.L.A. or from an ex-M.P. or an ex- M.L.A. specifying the jail period. The documents, which are required to be furnished are as follows : (a) Imprisonment/detention etc. Certificates from the concerned jail authorities, District Magistrates or the State Governments. In case of nonavailability of such certificates, coprisoner certificate from a sitting M.R or M.L.A. or from an ex-M.P. or an ex- M.L.A. specifying the jail period. (b) Remained undergound Documentary evidence by way of courts/Government orders proclaiming the applicant as an offender announcing an award on his head or for his arrest or ordering his detention. (c) Internment or externment An affidavit with a copy of the order of internment or externment or any other corroboratory documentary evidence. (d) Loss of property, job etc. Orders of confiscation and sale of property. Orders of dismissal or removal from service. In the case of a freedom fighter who gave false fictitious name and address at the time of arrest/conviction, certificate from M.P. or M.L.A. or ex-M.P. or ex- M.L.A. who were in jail with the freedom fighter and who clearly certify his identity is necessary. 12. Thus it appears that an applicant for freedom fighters pension is to comply with certain requirements as mentioned in the scheme itself. In the present case initially the petitioners submitted certain documents, which were verified at State level and the State Advisory Committee recommended to the Central Government for grant of such pension. At that very stage there was no reason for the Central Government to disbelieve the genuineness of the documents furnished by the petitioners because the State Government scrutinised them and recommended in favour of the petitioners. Provisionally pensions were granted but ultimately when the Central Government came to know from some sources that the petitioners and other claimants like them obtained such benefit on the basis of some forged documents, it immediately suspended payment of such pension and asked the petitioners to show cause. The petitioners shown their cause and considering the show cause and other documents, specially the report of the C.B.I., the Central Government was of the opinion that the petitioners obtained pensionary benefit by practising fraud. The impugned orders reveal that the Hon ble President of India after perusal of the entire records was pleased to cancel the order granting pension to the petitioners and directed for recovery of the amount paid to them. 13. The impugned orders reveal that the Hon ble President of India after perusal of the entire records was pleased to cancel the order granting pension to the petitioners and directed for recovery of the amount paid to them. 13. The petitioners could not make any allegation and in my view correctly, that the concerned respondents have any bias against them and out of some vengeance the impugned orders have been passed. It is to be remembered that at the first instance, on the recommendation of the State Government altogether 246 claimants were granted such pension provisionally, who were alleged to be accused in Sessions Case No. 61/1943. But when for some reason suspicion arose the matter was referred to the C.B.I. for investigation and seeing the report the Central Government was convinced that the petitioners alongwith other claimants were continuing to get such pension fraudulently. Though the report was placed before the Court but Mr. Jha, learned counsel for the petitioners could not challenge the said report either on the ground of mala fide or vagueness. 14. In the case of Mukund Lal Bhandari & Ors. V/s. Union of India & ors. [(1993) Supp. 3 SCC 2 (para 6)] it has been held that "as regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government". It was further held that "it is not possible for this Court to scrutinise the documents which according to the petitioners they had produced in support of their claim and pronounce upon their genuineness". Similarly, a Division Bench of this Court in the case of Union of India V/s. Shyamanand Pathak (LPA Nos. 353 and 646 of 1999) has observed that "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 fighters pension". 15. In the background of these legal positions, in the instant case it must be held that though earlier the Central Government on the basis of the recommendation of the State Government granted pension to the petitioners, it was right in cancelling the order granting pension when subsequently it found that the petitioners and other similarly situated claimants had obtained such" pension by practising fraud on the authority. Only because earlier the Central Government allowed the petitioners to draw pension treating some documents to be genuine as per the recommendation of the State Government, it cannot be said that subsequently when the C.B.I.reported that the documents furnished by the petitioners and other claimants were fabricated and manipulated, the Central Government was not entitled to act upon the same by cancelling the order granting pension. 16. So far the argument of Mr. Jha that the petitioners ought to have given a personal hearing before passing of the impugned order, in my view, is also devoid of any merit. It is well settled principle that principle of natural justice is not a rule of thumb or straight jacket formula as an abstract proposition of law and the principle cannot be stretched in all cases. If an order is invalid being contrary to any statutory provision (here the scheme), the petitioners cannot claim any right on the. basis of the earlier order in their favour and, therefore, question of affording them opportunity of hearing does not arise. Moreover, the Scheme does not postulate giving any opportunity and on the contrary it emphasises on furnishing authenticated documents. If the petitioners instead of filing genuine document had filed some fabricated and manipulated documents as revealed from the C.B.I. enquiry it cannot be said that they were entitled for such opportunity. Thus, I am not inclined to interfere with the order cancelling their pension. 17. So far order for recovery of the amount already paid to the petitioners is concerned, in my view, the Central Government should have considered the fact that the amount was being paid with effect from 1.8.80 and the same was ultimately cancelled on 18th August, 1992. Moreover, considering the age of the petitioners as of today it is not known as to whether they are still alive or not and in these circumstances their heirs should not be penalised for the mischief done by their ancestors. This writ application was filed in 1992 and was admitted in June, 1993. The writ petition, thus, was pending for about eight years and, as such, in the interest of justice, l set aside that part of the impugned order dated 18.8.1992, by reason of which order has been made to recover the amount already paid to them. 18. This writ application is, accordingly, allowed in part. No order as to cost.