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2008 DIGILAW 973 (BOM)

Gulabbai Gopaldas Gujrati v. Union of India

2008-07-09

F.I.REBELLO, S.B.DESHMUKH

body2008
ORAL JUDGMENT: (F.I. REBELLO, J.) 1. Rule, heard forthwith. 2. The petitioner is the widow of Gopaldas Kanhyalal Gujrati. The late Gopaldas Kanhyalal Gujrati had participated in the Indian Independence Movement and was sentenced for six months by Dharangaon Magistrate on 28-08-1942. He was released on 12-01-1943 unconditionally, as per the Government Resolution bearing Hd No. 6528/4(21156) dated 09-01-1943. The husband of the petitioner is receiving Freedom Fighters Pension from the Government of Maharashtra. 3. It is the petitioner’s case that the Government of India also grants a pension. Accordingly, the petitioner’s late husband had applied for Freedom Fighters Pension from the Central Government. The same was rejected on 04-12-1974 on the ground that the actual imprisonment of the husband of the petitioner was less than six months. A fresh application was submitted on 31-12-1982 supported by required documents. In the meantime, the husband of the petitioner expired. After that, the petitioner pursuing the matter and has submitted all required documents on 27-07-2007. In spite of receiving of the application, the Central Government has neither granted pension nor communicated anything to the petitioner. Under these circumstances, the present petition has been filed. 4. The Sanctioning Authority for the pension is the Union of India through the Secretary, Ministry of Home Affairs, Government of India, New Delhi. The competent authority in the State of Maharashtra to send the proposal of the petitioner to respondent No.1 is the Secretary of General Administration Department, Freedom Fighters Cell, Mantralaya, Mumbai. Respondent No. 3 is the Collector, Jalgaon, is also authority to forward necessary information to the State and Union Government. 5. According to the petitioner, on the death of her husband on 29-09-1996, she had persuaded the matter with the Central Government. Her case was recommended by the President of District Facilitation Committee Jalgaon to the Government of Maharashtra for grant of Freedom Fighters Pension from the Central Government. The Collector of Jalgaon, according to the petitioner, submitted the proposal to the Government of Maharashtra on 27-06-2003. Various other dignitaries also supported the claim of the petitioner. Several representations were made by the petitioner from time to time. It is set out that late husband of the petitioner had not made a request nor was his sentence curtailed on account of any such request. The curtailment was purely a decision of the then Government. Various other dignitaries also supported the claim of the petitioner. Several representations were made by the petitioner from time to time. It is set out that late husband of the petitioner had not made a request nor was his sentence curtailed on account of any such request. The curtailment was purely a decision of the then Government. It is submitted that considering law declared by the Supreme Court, the petitioner would be entitled to Freedom Fighters Pension granted by the Central Government and rejection of the petitioner’s case is, therefore, arbitrary and consequently liable to be set aside. 6. Reply has been filed on behalf of respondent No. 1 by Manmohan Banarasi Das, Under Secretary in the Freedom Fighter Division of Ministry of Home Affairs, Lok Nayak Bhawan, New Delhi. It is set out in the affidavit, based on information gathered from the office record, that Swatantrata Sainik Sanman Pension Scheme, 1980 was introduced by the Government of India during the Silver Jubilee Year of the Independence. That the necessary condition for considering the application of any individual is that the State Government should recommend the individual’s case to the Central Government. Only those applications which have been duly recommended by the State Government are considered by the Central Government. In the petitioner’s case, it was informed that it was not a fit case for recommendation in terms of communication of the Collector of Jalgaon, on 03-06-1986. Even on this count, it is submitted that the petitioner is not entitled to Freedom Fighters Pension introduced by the Government of India. Reliance is placed on the judgment of the Supreme Court in the case of Manoharlal Azad vs. Union of India and others, {(2002) 568} 10 SCC 568}, to contend that only those individual who have undergone the actual imprisonment of six months is entitled to claim the Freedom Fighters Pension and therefore, on this count, the petitioner’s husband was not entitled for the Freedom Fighters Pension. The claim of the petitioner’s husband was rejected on the ground that actual imprisonment was less than six months. As the petitioner’s husband was not eligible for the said pension, the petitioner has not right to claim it. Consequently, the petition be dismissed. 7. The claim of the petitioner’s husband was rejected on the ground that actual imprisonment was less than six months. As the petitioner’s husband was not eligible for the said pension, the petitioner has not right to claim it. Consequently, the petition be dismissed. 7. The issue, therefore, for consideration is whether the petitioner’s late husband, who is admittedly a freedom fighter and who had been sentenced to six months imprisonment, but had suffered lesser imprisonment on account of release unconditionally in terms of Government Resolution dated 09-01-1943, was entitled to the Freedom Fighters Pension granted by respondent No.1. 8. The relevant rule of clause (a) of Paragraph - 4 of the "Freedom Fighters’ Pension Scheme, 1972" extended to all freedom fighters from 01-01-1980 reads as under : "(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before independence. However, ex-INA personnel will be eligible for pension if the imprisonment detention suffered by them was outside India." We may, therefore, first consider the case law as relied upon by the petitioner in support of the contention that the Supreme Court has considered the said clause. The first such judgment is in the case of Surja and others vs. Union of India and another, {1992 (1) Mah.LR 388} = (1992 SC 777). Learned Supreme Court, in that matter, has been pleased to hold on the facts there, that the petitioners had participated in Arya Samaj movement (who were also entitled to pension under Swatantrata Sainik Samman Pension Scheme) and were sentenced to undergo imprisonment for six months. While they were undergoing sentence, without praying for any remission, a general amnesty was declared by the then Nizam on his birthday and the sentence was reduced and the petitioners were set free. The Court held that it was a fact that the petitioners were sentenced to six months imprisonment and the fact that remission was granted, would not take away their right to earn pension. This judgment was followed in the case of Mukund Lal Bhandari and others vs. Union of India and others (1993 AIR SCW 2508). The Court reiterated view taken in the case of Surja (Supra). This judgment was followed in the case of Mukund Lal Bhandari and others vs. Union of India and others (1993 AIR SCW 2508). The Court reiterated view taken in the case of Surja (Supra). In other words, if the period of six months sentence was curtailed, not on account of any act of seeking remission by the person, but on account of the State or Authorities unilaterally granting remission or curtailing the period of sentence would not disentitle the applicant from getting pension. 9. Learned counsel on behalf of the respondents however has drawn our attention to the judgment of the Supreme Court, in the case of Union of India and others vs. Manohar Lal Azad and another (Supra). On the facts there, it was submitted before the learned Supreme Court that the applicant for pension did not fulfil eligibility criteria. On behalf of respondents, reliance was placed on the judgment of Surja (Supra). The Supreme Court posed to itself the question as to whether the first respondent is entitled to pension under Samman Pension Scheme. The Court noted from the scheme that the eligibility criteria to earn pension under that scheme is that one should be Freedom Fighter and suffering imprisonment. Freedom Fighter is defined in Clause (a) of Para. 4 of the Scheme and on perusal of that clause, the Supreme Court observed as under: "A perusal of this clause makes it abundantly clear that what is germane is suffering a minimum imprisonment of six months in the mainland before independence but not merely suffering an order awarding imprisonment of six months by a competent court. Explanation 2 to Para 4, however, treats the period of normal remission up to one month as part of actual imprisonment." After considering the observations in Surja (Supra), the Court proceed to observe that it was clear that on the peculiar facts of that case, it was held that each of the petitioners there, satisfied the condition for earning the benefit of pension. The Court further proceeded to observe as under : "We are unable to read that judgment as laying down that where a person has been sentenced to imprisonment for six months or more but if he comes out within a month or so, for whatever reason, without serving his sentence, he will still be a freedom fighter within the meaning of the Scheme and eligible for the samman pension. To say so, in our opinion, would amount to giving a go-by to the definition of the expression "freedom fighter" and substituting new eligibility criteria for the Scheme enlarging its scope which is not only impermissible but also contrary to the spirit of the Scheme framed on the basis of the material and keeping in mind the class of the political sufferers who would be the beneficiaries of the Samman Pension Scheme." Therefore, considering the judgment in the case of Manoharlal Azad (Supra), the law as declared would require the applicant to have suffered six months actual imprisonment subject to the proviso whereby normal remission of one month is considered as a part of actual imprisonment. 10. Admittedly, on the facts in the instant case, the late husband of the petitioner was sentenced on 28-08-1942. In the ordinary course, he would have been released on 27-02-1943. He was however released on 12-01-1943. Even if we add one month as a remission, then the period of six months would have expired on 11-02-1943. The husband of the petitioner, therefore, in terms of the judgment in the case of Manohar Lal (Supra), had not undergone the actual sentence of six months. 11. On behalf of petitioner, learned counsel submits that the judgment in the case of Surja (Supra) and Mukund Lal (Supra) are of co-ordinate Benches and another co-ordinate Bench could not have taken a view which is contrary to the view taken in the judgment in the case of Surja (Supra), which was followed in the case of Mukund Lal (Supra). It is true as noted by the Constitution Bench of the Apex Court in Union of India vs. Raghubir Singh (dead) by L.Rs. ( AIR 1989 SC 1933 ), wherein the Supreme Court observed as under : "A pronouncement of law by a Division Bench of the Supreme Court is binding on a Division Bench or a smaller same number of judges and in order that said decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court." We have considered the said submission. In the first instance, all the judgments are of Co-ordinate Benches of two Judges. In the first instance, all the judgments are of Co-ordinate Benches of two Judges. When there be so conflicting judgments of Co-ordinate Benches of the Supreme Court, as pointed out by the Full Bench of the Court in Kamleshkumar Ishwardas Patel vs.Union of India and others ( 1994 Mh.L.J.1668), it is open to the Court to consider the judgment which in its opinion is the better in point of law irrespective of when the judgments were pronounced. The fact, however, remains that insofar as case of Manohar Lal (Supra) is concerned, the Supreme Court considered the judgment in the case of Surja (Supra). It is true that case of Mukund Lal (Supra) was not considered but if we peruse the judgment in the case of Mukund Lal (Supra), the Court excepted the ratio of the judgment in the case of Surja (Supra). The other aspect of the matter is that the judgment in the case of Surja (Supra) was directly under consideration by the Supreme Court in Manoharlal Azad (Supra). The Supreme Court noted that the judgment in Surja (Supra) was rendered on the peculiar facts of that case and then declared the position of law, that an applicant must have actually suffered a minimum imprisonment of six months less the remission period of one month. On being sentenced and suffering imprisonment, if the sentence was curtailed not on account of the applicant’s request but by the State, it would not be sentence undergone for six months. It is not possible for us, therefore, to take a view different than the view taken in the case of Manohar Lal Azad (Supra) considering that the case of Surja (Supra) was in issue and considered and explained in Manohar Lal Azad (Supra). The law as it now stands would be the law as declared in Manohar Lal (Supra) and that would be the law binding on the courts under Article 141 of the Consitution of India. 12. Considering the above, as the petitioner’s husband had not suffered actual six months imprisonment, it is not possible for us to entertain with the decision taken by respondent No.1 rejecting the claim of the petitioner and consequently, Rule discharged. There shall be no order as to costs. Rule discharged.