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2006 DIGILAW 41 (GAU)

Anil Krishna Sarkar v. Union of India

2006-01-06

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. This is an. application under Article 226 of the Constitution of India for directing the Respondents to grant freedom fighters' pension under the provision of the Freedom Fighters' Pension Scheme, 1972 to the Petitioner with effect from March, 1976. 2. The case of the Petitioner, in a nutshell, is that he was a member of a congress Committee at Chanpur during the struggle for Indian independence, for which he took part in the civil disobedience movement at the call of Mahatma Gandhi and violated the prohibitory orders imposed under Section144 of the Code of Criminal Procedure, whereupon he was arrested along with other Congress volunteers and sent to Chanpur Jail Hazat. The Sub-divisional Judicial magistrate, Chanpur found him guilty and convicted and sentenced him to suffer 9(nine) months R.I. in 1942, whereafter he was sent to Comilla district Jail for serving out his sentence. It is the further case of the Petitioner that after his release from comilla District Jail, he returned at home at Chanpur for a period of three months in the year 1943. As a freedom fighter and one who had undergone imprisonment for taking part in the independence movement, he is entitled to the pension payable to the living freedom fighters in terms of the Freedom Fighters' pension scheme. He accordingly applied for grant of the aforesaid pension by submitting all the requisite documents to the Respondent. After processing his application, the Respondent No. 1 sanctioned on 11.01.1975 the freedom fighter pension @ Rs. 200/- per month with effect from 15.08.1972 vide the letter dated 29.01.1975 addressed to him (Annexure-2). It is further stated by the Petitioner that after February, 1976 his pension was suspended on flimsy grounds. This prompted him and other similarly situated parties to institute a representative suit before the learned Munsiff being Tile Suit No. 158 of 1987. The learned Munsiff disposed of the case by directing the State Government to set up a review committee for scrutinizing the case of all freedom fighters whose pension had been suspended and for making necessary recommendation thereon. Thereafter the Respondent No. 2 issued the latter dated 09.01.1989 to the Petitioner for production of documentary evidence in terms of the guidelines given therein. The Petitioner is stated to have promptly submitted all the requisite documents with a forwarding letter, which is at Annexure-5. Thereafter the Respondent No. 2 issued the latter dated 09.01.1989 to the Petitioner for production of documentary evidence in terms of the guidelines given therein. The Petitioner is stated to have promptly submitted all the requisite documents with a forwarding letter, which is at Annexure-5. According to the Petitioner, thought his case was recommended by the Respondent No. 2, the Respondent No. 1 arbitrarily did not act upon the said recommendation even though he submitted the following documents: Certificate dated 10.02.1971 issued by the Sub-Divisional officer, Central Zone, Agartala certifying that he is a freedom fighter and certificates to that effect by M.L.A. and co-prisoner, who is a Tamrapatra holder. It is the case of the Petitioner that despite submitting all the requisite papers and the assurance held out by the Respondent No. 2, the Respondent No. 1 refused to sanction the pension till date. According to the Petitioner, this Court in the judgment dated 03.04.1996 in Civil Rule No. 339 of 1994 (Anath Bandhu Saha v. Union of India and Anr.), in a similar case, had directed the Union of India to pay pension to the dependant wife of the freedom fighter concerned. As a person similarly situated, contends the Petitioner, he is also entitled to similar direction and, as such, appropriate direction be issued by this Court for enabling him to receive the freedom fighter pension. 3. The Respondent Nos. 1 and 2 resisted the writ petition and filed separate counter affidavits. The Respondent No. 1 in its counter affidavit stated that the Respondent No. 2 in the year 1976 recommended suspension of the pension to the Petitioner since he could not produce the relevant documents and that it was on the basis of the said recommendation that his pension was suspended. It is further stated by the Respondent No. 1 that thereafter in 1978, the Government of Tripura formed a new Advisory Committee to review the cases where the pensions already sanctioned have been suspended and that this Committed also did not recommend restoration of the pension to the Petitioner. In the counter affidavit of the Respondent No. 2, he questions the very maintainability of the writ petition filed by the writ Petitioner on the ground of laches since the cause of action had arisen way back in 1975 when his provisional pension was suspended. In the counter affidavit of the Respondent No. 2, he questions the very maintainability of the writ petition filed by the writ Petitioner on the ground of laches since the cause of action had arisen way back in 1975 when his provisional pension was suspended. In addition to adopting the contention of the Respondent No. 1, the Respondent No. 2 stated that the Petitioner could not produce documentary evidence in support of his application despite giving him 21 days by the Review Committee. After carefully examining the case of the Petitioner by the scrutiny committee, it was found that the committee could not recommend his case for grant of pension but the matter was referred to the Respondent No. 1 for necessary action. According to the Respondent No. 2, the President of India can always review the grant of provisional pension to the Petitioner and when the Petitioner was found not eligible for want of requisite documents to support his claim, the rejection of his pension was perfectly in order. The Respondent No. 2 also asserted that the certificate at Annexure-6, issued by the Sub-Divisional Officer, Central Zone, Agartala is not a certificate contemplated under the scheme as finally decided in Title Suit No. 158 of 1987 in which the Petitioner was a party and that the certificate was issued by the Sub-Divisional Officer without making any enquiry and that too on an incident occurring outside this country. The said Respondent also pointed out that Shri Priya Bandhu Bhattacharjee, who issued the certificate did not say that the Petitioner was his co-prisoner and that, in any case, such a certificate did not fulfill the requirement of the Scheme. Similarly, the said Respondent contended that Mr. Pramodh Dasgupta, M.L.A., who issued one of the certificates, was not the co-prisoner of the Petitioner and, as such, such certificate could not be acted upon. The Respondent, therefore, prays that the writ petition being devoid of merit is liable to be dismissed in limine. 4. After hearing Mr. S. Talapatra, the learned senior Counsel for the Petitioner, Mr. P.K. Biswas, the learned Assistant SG and Mr. T.D. Majumder, the learned Additional Government Advocate, I have no hesitation to say that this writ petition has no merit. 4. After hearing Mr. S. Talapatra, the learned senior Counsel for the Petitioner, Mr. P.K. Biswas, the learned Assistant SG and Mr. T.D. Majumder, the learned Additional Government Advocate, I have no hesitation to say that this writ petition has no merit. The Apex Court in Mukund Lal Bhandari v. Union of India, AIR 1993 SC 2127 has held that sanction of pension under the Swatantra Sainik Samman Pension Scheme would be subject to the requisite proof in support of the claim and that it is upon the genuineness or otherwise of the documentary evidence which the applicants produced in support of their claims that pension can be sanctioned. The Apex Court further held therein that as regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government; that it is not possible for the court to scrutinise the documents which according to the Petitioner, they had produced in support of their claim and pronounce upon their genuineness and that it is the function of the Government to do so. A quick survey of the provision of the Scheme at Annexure-R/1 will show that in the case of imprisonment/detention, the applicant is required to produce a certificate from the concerned jail authorities or District Magistrate or the State Government and in case of non-availability of such certificates, coparcener certificate from a sitting M.P. or M.L.A. or Ex M.P. or an Ex M.L.A. specifying the jail period. It is thus obvious from the documents stated to have been produced by the Petitioner vide Annexures-5 and 6 that the Petitioner has failed to submit any certificate of his imprisonment from the jail authorities or the District Magistrate or the State Government or certificates of his co-prisoners, who are either sitting M.P. or M.L.A. or Ex M.P. or Ex M.L.A. Mr. Pramodh Dasgupta, M.L.A. who issued the certificate, is evidently not his co-prisoner. In the case of retirement also the Petitioner is required to produce certificate from prominent freedom fighters who have themselves undergone imprisonment for five years or more, if the official records are not available in addition to some circumstantial/collateral evidence. It is clearly seen from the record that the Petitioner did not produce any certificate from such freedom fighters. In the case of retirement also the Petitioner is required to produce certificate from prominent freedom fighters who have themselves undergone imprisonment for five years or more, if the official records are not available in addition to some circumstantial/collateral evidence. It is clearly seen from the record that the Petitioner did not produce any certificate from such freedom fighters. In so far as the certificate issued by the Sub-Divisional Officer, Central Zone, Agartala (Annexure-6) is concerned, assuming that he has been empowered to issue such a certificate, there is no material to show that the certificate was issued by him on the basis of the records maintained in Chanpur Sub-Jail or Comilla District Jail. Chanpur Sub-Jail or Comilla District Jail are admittedly located in the present day Bangladesh which is a foreign country. That being the position, it is not comprehensible as to how a Sub-Divisional Officer functioning at Agartala in the Tripura State of India could make a certificate of imprisonment of the Petitioner in foreign country, which took place some 30 years back. In the absence of any evidence to show that the Sub-Divisional Officer, central zone, Agartala had the record of imprisonment of the Petitioner of Chanpur Sub-Jail or comilla District Jail in 1942-43, it would not be safe to act upon such a certificate issued by him. 5. The decision of this Court rendered in Anath Bandhu Saha (supra) is clearly distinguishable inasmuch as the controversy raised therein was related to the exact period undergone by the Petitioner therein in Comilla Jail in the year 1942 and not to the genuineness or validity of the certificates issued by the individual concerned. In the instant case, the view taken by the Respondent that the Petitioner is not eligible for freedom fighter pension on the ground that he could not substantiate his claim is, on the basis of the available materials on record, a justified and reasonable view consistent with the provisions of the Scheme. It is a well-known principle of administrative law that when relevant considerations have been taken a note of and irrelevant aspects have been ignored and the administrative decisions have nexus with the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such. Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such. Apart from claiming that the decision of the Respondents in not granting the pension is arbitrary, no material has been produced by the Petitioner to show that the decision was actually tainted by arbitrariness. The Petitioner cannot also show that the decision making process of the Respondents suffers from illegality, irrationality or procedural impropriety, which alone can unable this Court to interfere in the decision making process of the Respondents. 6. For the reasons stated in the foregoing, this writ petition is devoid of merit and is, accordingly, dismissed. However on the facts and circumstances of this case, the parties are directed to bear their own costs. Application dismissed