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2002 DIGILAW 418 (ORI)

Hiramani Panda v. State of Orissa

2002-07-10

A.K.PATNAIK, M.PAPANNA

body2002
JUDGMENT A. K. PATNAIK, J. — Freedom Fighters' Pension Scheme, 1972 was framed by the Government of India. The Scheme provided for grant of pension to living freedom fighters, their families if they are no more alive, and to the families of martyrs. Under the scheme, not more than one member of a family was to be granted pension. The husband of the petitioner late Rangadhar Panda was granted such pension at the rate of Rs. 200/- per month and he was draw¬ing the same. On 4.4.1975 the Government of India, Ministry of Home Affairs, addressed a communication to the Accountant Gener¬al, Orissa stating therein that the pension sanctioned provision¬ally in favour of the petitioner has been suspended. On the same day, a memorandum was also issued by the Government of India, Ministry of Home Affairs, suspending the pension of Rs. 200/- per month provisionally sanctioned in favour of late Rangadhar Panda. By the said memorandum late Rangadhar Panda was asked to show cause as to why provisional pension granted to him should not be cancelled on the grounds indicated in the said memorandum and also to show cause as to why the Government should not take appropriate steps for recovery of the same. The communication and the memorandum dated 4.4.1975 of the Government of India, Minis¬try of Home Affairs, copies of which have been annexed as Annex¬ures-3 and 4, have been challenged in this writ petition by the petitioner. 2. Mr. B. N. Panda, learned counsel for the petitioner, submitted that at the time of application for such Freedom Fight¬ers' Pension, late Rangadhar Panda had furnished certificates of an Ex - M.L.A., Shri Dwarikanath Das and an Ex-M.P., Shri Dhara¬nidhar Jena, certifying that late Rangadhar Panda was a co-pris¬oner with them and the aforesaid certificates were treated as proof of the fact that late Rangadhar Panda was a Freedom Fighter for the purpose of grant of pension under the Freedom Fighters' for the purpose of grant of pension under the Freedom Fighters' Pen¬sion Scheme, 1972. He further submitted that there was no jail record available in proof of the fact that late Rangadhar Panda has been in jail at Balasore for more than six months. He further submitted that there was no jail record available in proof of the fact that late Rangadhar Panda has been in jail at Balasore for more than six months. He submit¬ted that all that is available is a certified copy of record in the District Record Room from the Court of the Magistrate First Class, Babu S. Mohapatra, which would go to show that late Ran¬gadhar Panda had been sentenced to R.I for eight months under Section 117 I.P.C. and Section 9 (A) of the Salt Act. Mr. Panda referred to various instances given in the rejoinder affidavit where other persons, namely, Gourahari Das, Birabar Das, Chintama¬ni Naik had been granted freedom fighters' pension on the basis of similar certified copies of the records of the District Record- room showing conviction and imprisonment for more than six months. According to Mr. Panda, the impugned communication and memorandum dated 4.4.1975 suspending the provisional pension granted to late Rangadhar Panda are arbitrary, unfair and con¬trary to the Freedom Fighters' Pension Scheme, 1972 and are liable to be quashed. 3. Mr. S. K. Das, learned Addl. Standing Counsel for the Union of India, on the other hand, relied on the grounds given in the impugned memorandum dated 4.4.1975 for suspension of the provisional pension granted to late Rangadhar Panda as well as the affidavit filed on behalf of the Union of India and submitted that the suspension of the provisional pension in favour of late Rangadhar Panda by the impugned memorandum and the communication was justified. He also submitted that the State Government also recommended for suspension of the provisional pension granted in favour of late Rangadhar Panda. He finally argued that in any case, late Rangadhar Panda should have filed a show cause in response to the impugned memorandum dated 4.4.1975 but no such show cause was filed and instead the petitioner has approached this Court in the present writ petition in the year 2000 against the impugned communication and the impugned memorandum issued in the year 1975. Mr. Mohapatra, learned Addl. Govt. Mr. Mohapatra, learned Addl. Govt. Advocate relied on the averments in the counter affidavit filed on behalf of the State Government and submitted that because of non-availability of jail records showing that late Rangadhar Panda had suffered imprisonment for more than six months and because the co-prisoners' certificates were not adequate for the purpose of granting the pension the State Government made its recommendation to the Central Government accordingly. He submitted that it is not correct as has been submitted by Mr. Panda that others have been granted pension under the Freedom Fighters' Pension Scheme, 1972 on the basis of the records of the District Record Room. 4. The grounds on which the provisional pension of late Rangadhar Panda has been suspended have been given in para¬graph-2 of the impugned memorandum dated 7.4.1975 of the Govern¬ment of India, Ministry of Home Affairs. The said paragraph-2 of the impugned memorandum dated 4.4.1975 is extracted hereinbelow : “2. It has been brought to the notice of this Ministry by the State Govt. that the applicant was not eligible for grant of pension under the said scheme for the reasons that the Jail records are not available. Co-prisoner certificate is not help¬ful. The case has also not been recommended by the State Sub-Committee.” Thus the reasons given for suspending the provisional pension granted in favour of late Rangadhar Panda are that the jail records were not available, co-prisoners' certificates were not helpful and the case has also not been recommended by the State Government. 5. In the Freedom Fighters' Pension Scheme, 1972 a freedom fighter has been defined to mean : “A person who has suffered a minimum imprisonment of six months in the mainland jail before independence.” 6. For determining as to whether an applicant applying for freedom fighters' pension under the Scheme has suffered the mini¬mum imprisonment for six months, the scheme has provided the mode of proof through certificates/documents in the said scheme. The mode of proof given in the said scheme is as follows: “(a) Imprisonment/detention etc. Certificates from the concerned Jail authorities, District Magis¬trates or the State Government. The mode of proof given in the said scheme is as follows: “(a) Imprisonment/detention etc. Certificates from the concerned Jail authorities, District Magis¬trates or the State Government. In case of non-availability of such certificates, co-prisoner certificate from a sitting M.P. or M.L.A. or from an Ex-M.P. or an Ex-M.L.A. Specifying the jail period.” Thus two alternative modes have been given in the said scheme for proof of suffering of a person by way of imprisonment for a minimum period of six months in the mainland jail before inde¬pendence, Either certificates from the concerned jail authori¬ties, District Magistrate or State Government may be produced or in case of non-availability of such certificates, co-prisoners' certificate from a sitting M.P. or M.L.A. or from an Ex-M.P. or Ex-M.L.A. specifying the jail period has to be produced. The scheme does not provide that in all cases certificates from the concerned Jail authorities or District Magistrate or the State Government have to be produced and makes a provision that if such certificates are not available, the co-prisoner certificate of a sitting or Ex-M.P. or M.L.A. will be taken as proof. 7. In the present case, certificates from the concerned jail authorities, District Magistrate or State Government in proof of the imprisonment of late Rangadhar Panda for a minimum period of six months in a mainland jail are not available and late Rangadhar Panda had furnished the certificates of an Ex-M.P. an Ex-M.L.A. The certificate furnished by the Ex-M.P. is extract¬ed hereinbelow : “Dharanidhar Jena Tel No. 191 Ex-Member of Parliament, Vill : Baradadiha (Lok Sabha) P. O. Gelpur Via : Bhadrak Dist. Balasore Orissa Certified that Sri Rangadhar Panda, S/o late Gayadhar Panda, Vill : Abdulpur, P. O. Biadyarajpur, P.S. Jajpur, Dist. Cuttack was a co-prisoner with me in Balasore Jail in the year 1942 and 43 for a period of more than six months under a fictitious name on account of his participation in the Quit India Movement of 1942. Sd/ - Dharanidhar Jena Dt. 15.1.1974" The aforesaid certificate clearly shows that an Ex-M.P. had certified that Rangadhar Panda was a co-prisoner with the Ex-M.P. for a period of more than six months under the fictitious name on account of his participation in the Quit India Movement in the year 1942. Sd/ - Dharanidhar Jena Dt. 15.1.1974" The aforesaid certificate clearly shows that an Ex-M.P. had certified that Rangadhar Panda was a co-prisoner with the Ex-M.P. for a period of more than six months under the fictitious name on account of his participation in the Quit India Movement in the year 1942. The certificate is clear that late Rangadhar Panda, son of Gayadhar Panda of village : Abdulpur, P.O. Baidyarajpur, Jajpur, Dist, Cuttack had undergone imprisonment for more than six months. That he had undergone imprisonment under a fictitious name does not make the certificate fictitious. It only indicates that he had another name at the time he went through the impris¬onment because of the fact that he was participating in the Quit India Movement of 1942. In other words, it was only late Rangad¬har Panda and no one else who had undergone imprisonment as per the said certificate. The petitioner has also furnished the certificate of an Ex-M.L.A. which is extracted hereinbelow : “Shri Dwarikanath Dash, Ex-M.L.A., Vill/P.O. Kantapari, Dist. Cuttack Certified that Sri Rangadhar Panda, S/o Late Gayadhar Panda, Village-Adbulpur, P.O. Baidyarajpur P. S. Jajpur, District-Cuttack was a co-prisoner with me in Balasore jail in the year 1942-43 for a period of more than 6 months under a fictitious name on account of his participation in the Quit India Movement of 1942. Dwarakanath Das Dt. 24.6.74.” 8. The aforesaid co-prisoner certificates from an Ex-M.P. and an Ex-M.L.A. specifying the jail period of more than six months satisfied the requirement of proof provided in the scheme. We further find that these certificates of the Ex-M.P. and Ex-M.L.A. have been referred to in the show cause/explanation dated 18th April, 1975 of late Rangadhar Panda in reply to the impugned memorandum dated 4.4.1975. The second paragraph of the said show cause reply/explanation of the petitioner in Annexure-5 to the writ petition is quoted hereinbelow : “That the amount of Rs. 200/- was sanctioned in my favour as I am a Freedom Fighter and have suffered imprisonment for more than six months. As the records in support of my imprisonment were fully lost, I had to submit the certificates of co-prisoner namely, Dhirendra Jena, Ex-M.P. and Sri Dwarakanath Das, Ex-M.L.A. in support of my imprisonment and the same was accepted by the State Govt. and as such it cannot be said that the jail records are not available. As the records in support of my imprisonment were fully lost, I had to submit the certificates of co-prisoner namely, Dhirendra Jena, Ex-M.P. and Sri Dwarakanath Das, Ex-M.L.A. in support of my imprisonment and the same was accepted by the State Govt. and as such it cannot be said that the jail records are not available. Further the State having accepted the same, it will be presumed to have been accorded recommendation from State Sub-committee and formal recommendation were not necessary.” 9. On a query from the Court as to why the petitioner approached this Court against the impugned memorandum dated 4.4.1975 in the year 2000 and not before, Mr. Panda referred to the averments in the writ petition to show that after receipt of the impugned memorandum and impugned communication dated 4.4.1975, Rangadhar Panda made several representations to the different authorities and thereafter he suffered on account of illness and finally expired on 14.5.1982 and only after his death, his wife has approached this Court in this writ petition. Though delay is sometimes a ground for the Court not to grant relief to a person we are not inclined to deny the relief to the petitioner who is a widow of a freedom fighter only on the ground of delay and laches. The Freedom Fighters' Pension Scheme, 1972 is to recognise the sacrifices of the freedom fighters and to grant pension to the freedom fighters and their families to remove their hardships. A scheme with such laudable objects should not be frustrated by denial of relief on the technical ground of delay and laches. 10. For the aforesaid reasons, we allow the writ petition and quash the impugned communication and memorandum dated 4.4.1975 in Annexures 3 and 4 to the writ petition and direct that the pension due to late Rangadhar Panda till he expired on 14.5.1982 and the pension due to the petitioner after his death will be released within a period of three months from the date of receipt of certified copy of this order by the Secretary, Minis¬try of Home Affairs, Government of India, opposite party No. 2. Considering the above facts and circumstances of the case there would be no order as to costs. M. PAPANNA, J. I agree. Petition allowed.