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2006 DIGILAW 629 (CAL)

UNION OF INDIA v. SUBAL CHANDRA MAITY

2006-09-21

BHASKAR BHATTACHARYA, PRABUDDHA SANKAR BANERJEE

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BHATTACHARYA, J. ( 1 ) THIS mandamus appeal is at the instance of the union of India and is directed against the order dated 18th August, 2005 passed by a learned Single Judge by which His Lordship disposed of a writ application filed by the respondent No. 1 by directing the appellant to grant freedom-fighters' pension in accordance with the norms and scheme within a period of three months from the date of communication of the said order. ( 2 ) THE respondent No. 1 filed a writ-application being W. P. No. 12041 (W) of 1998 thereby challenging the decision of the Union of India rejecting the prayer of the writ-petitioner for grant of pension under the S. S. S. P. Scheme. ( 3 ) THE claim made out by the writ-petitioner in his application was that he joined the Quit India Movement in 1942 and worked under the then congress leadership and took active part in the subversive activities and was involved in the incursion of the Mahisadal Thana for destruction of the records and hoisting of the Congress-flag on the top of the thana-building. He further claimed that he instigated the mass in general for not paying the chowkidary-tax, jamindary-tax and inspired them to cut off the road connection on 29th September, 1942 to facilitate the programme of raiding and capturing the police station on 29th September, 1942. According to him, for his active participation in the said movement and the subversive activities, he was wanted by the police of the Mahisadnl Thana and that is why he left the Mahisadal Thana-area for Tamluk where he came in close contact with the various eminent freedom-fighters and under their esteemed guidance he remained active in that place with rejuvenated spirit. He claimed that search warrant and warrant of arrest were issued against him and according to the direction of leadership of Sri Rabindra Nath Giri and others, he went underground and remained in that state from 2nd October, 1942 to 25th July, 1944. He, however, admitted in his application that he never suffered any imprisonment and he also could not give reference to any court case. He, however, admitted in his application that he never suffered any imprisonment and he also could not give reference to any court case. ( 4 ) IN support of his claim, he relied upon a certificate given by a co-freedom-fighter namely, Rabindra Nath Giri, who certified that the writ-petitioner was a bona fide freedom-fighter who remained underground for more than six months from October, 1942 to July, 1944. The certifier further stated that to the best of his knowledge and belief, the petitioner did not secure reprieve on account of any oral or written apology tendered by him. ( 5 ) THE learned Trial Judge came to the conclusion that in view of non-availability of the warrant-register for the period in question, the only course of action left open to His Lordship was to rely on the certificate issued by Sri Rabindra Nath Giri, another co-freedom-fighter, eligible to grant certificate recommending pension. His Lordship further held that there had been no complaint or any allegation that Sri Giri had frequently issued such certificates. ( 6 ) BEING dissatisfied, the Union of India has come up with the present mandamus-appeal. ( 7 ) MRS. Anwari Quaraishi, the learned Advocate appearing on behalf of the appellant has strongly relied upon the decision of this very Bench in the case of Union of India and Ors. v. Smt. Subhadra Bala Paul and Ors. in f. M. A. No. 337 of 2006 disposed of on 7th July, 2006 wherein the Bench while considering this type of a case, came to the conclusion that underground suffering for a period of six months which is recognized as a ground for grant of pension provided that the freedom-fighter should be either a proclaimed offender or a person on which an award for arrest/head was announced or on whom detention order was issued but was not served. This Bench further held that voluntary abscondence for the causes other than the ones mentioned above would not make a person eligible for pension. It was further pointed out that in addition to the aforesaid fact, it must be shown that the applicant did not secure reprieve on account of any oral or written apology tendered by him. This Bench further held that voluntary abscondence for the causes other than the ones mentioned above would not make a person eligible for pension. It was further pointed out that in addition to the aforesaid fact, it must be shown that the applicant did not secure reprieve on account of any oral or written apology tendered by him. ( 8 ) IN our view, by taking aid of the liberalised scheme, an applicant can insist on acceptance of a certificate by a freedom-fighter having the requisite eligibility, as secondary evidence in support of his claim if the official records are not available. But in a given circumstance, the Central government is entitled to reject such certificate if other contrary evidence is available falsifying the claim of the applicant or the contents of the certificate. Similarly, there may be cases where on the basis of the averments made in the application itself, the claim of the applicant may be shown to the apparently an absurd one and in such cases, those applications deserve outright rejection notwithstanding the fact that those are supported by the certificates of co-freedom-fighters. In other words, the certificate given by a competent freedom-fighter is not conclusive. ( 9 ) IN the case before us, the writ petitioner stated in his application that he remained underground due to "quit India Movement" from 2nd october, 1942 till 25th July, 1944 but did not mention in his application whether he was a proclaimed offender or one on whom an award for arrest/ head was announced or whether he was one for whose detention order was issued but not served as required under the scheme in order to get the benefit of underground for more than six months. ( 10 ) A person is declared as a proclaimed offender by a Court in accordance with the provisions contained in the Code of Criminal Procedure and is preceded by issue of a warrant and is consequent to abscondence or concealment of such person with an intention that such warrant cannot be executed. Such proclamation continues so long such person is not arrested. Such proclamation may, however, cease to have any effect if the criminal case in which such warrant was issued is ultimately dropped in the absence of any material against such person or reprieve is given to such person after acceptance of apology. Such proclamation continues so long such person is not arrested. Such proclamation may, however, cease to have any effect if the criminal case in which such warrant was issued is ultimately dropped in the absence of any material against such person or reprieve is given to such person after acceptance of apology. ( 11 ) THUS, the writ petitioner himself having admitted in his application that he did not abscond any further from July 26, 1944 nor was he ever arrested, only conclusion that emerges out is that from July 26, 1944 there was neither any warrant nor any valid order of proclamation against him as the said case was dropped either because he was wrongly impleaded or due to tender of apology by the petitioner, he was given reprieve. In either of the circumstances, the applicant was not entitled to get the pension. If the abscondence continued till August 15, 1947, the petitioner could successfully contend that due to independence of the country the case was not proceeded with after August 15,1947. Thus, the assertion of the original writ-petitioner that for involvement in the "movement of Quit India" he remained underground and ceased to remain in underground from July 26, 1944 but was never arrested is an absurd story unless he was mistakenly involved in the criminal case or he was pardoned after acceptance of his apology. The averments of the writ-petitioner in the application itself make him ineligible for the grant of pension as he never claimed to be a proclaimed offender nor did he assert that he was one on whom an award from arrest/ head was announced nor any detention order was issued upon him but not served. ( 12 ) MERE issue of search warrant will not make him eligible for pension on the ground of abscondence. The word "detention order" mentioned in the scheme does not mean issue of search warrant or warrant of arrest but a specific order of detention under the provisions of a law of the nature of preventive detention. ( 13 ) THE next question is whether the application of the writ petitioner was accompanied by a valid certificate given by a co-freedom-fighter in accordance with the scheme. ( 13 ) THE next question is whether the application of the writ petitioner was accompanied by a valid certificate given by a co-freedom-fighter in accordance with the scheme. ( 14 ) IN this case, certificate was given by one Sri Rabindra Nath Giri and the learned Single Judge came to the conclusion that there is no allegation that Sri Giri had frequently issued such certificate. However, in the case relied upon by Mrs. Quaraishi in F. M. A No. 337 of 2006, the same rabindra Nath Giri gave such certificate and certificate itself shown that the same was a printed one and was filled up in places with insertion according to the needs of the different individual cases. Therefore, it is apparent that Sri Rabindra Nath Giri had the habit of frequently issuing such certificate otherwise, he would not have prepared those printed forms. ( 15 ) MOREOVER, the certificate did not take the responsibility of his statement that the applicant did not secure reprieve on account of any oral or written apology by not certifying the statement as true to his knowledge. To qualify the certificate as "to the best of my knowledge and belief he did not secure reprieve" means that the certifier is not prepared to vouch for the veracity of such statement. ( 16 ) A certificate is the testimony given in writing to declare or verify the truth of something. Such element is absent in respect of the above statement mentioned aboved. ( 17 ) WE, thus, find that the applicant not having explained why from 26th July, 1944 he did not remain underground, it is apparent that his case is an absurd one unless he was involved in a wrong case and was acquitted. The detention order mentioned in the scheme means, as mentioned above, detention order issued under the law relating to preventive detention and not a mere search warrant or warrant of arrest. Though the petitioner did not claim that any detention order was passed against him, the certifier, namely, Rabindra Nath Giri certified that he was one for whose detention orders were issued but he evaded arrest as mentioned in the printed form without giving any detail. Though the petitioner did not claim that any detention order was passed against him, the certifier, namely, Rabindra Nath Giri certified that he was one for whose detention orders were issued but he evaded arrest as mentioned in the printed form without giving any detail. ( 18 ) ON consideration of the entire materials on records, we find that the learned Single Judge erred in law in passing direction for grant of pension by solely relying upon the certificate issued by Sri Rabindra Nath Giri Who certified something which even the petitioner did not claim and such certificate was also not a proper certificate as mentioned earlier. ( 19 ) WE, thus, set aside the order passed by the learned Single Judge and hold that on the basis of the averments made in the application for pension, the writ petitioner is not entitled to get any pension and the Union of India rightly refused the prayer of pension. ( 20 ) THE appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs. Banerjee, J.-l agree.