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2009 DIGILAW 471 (CAL)

Renuka Bala Maity v. UNION OF INDIA

2009-07-03

MAHARAJ SINHA

body2009
Judgment :- (1) The writ petitioner, being the widow of a freedom fighter, has approached this Court by way of a writ petition as her claim for obtaining freedom fighters pension on the basis of the Swatantra Sainik Samman Pension Scheme, 1980 was rejected by an Under Secretary to the Government of India, annexure P-7 to the writ petition at page 45 thereof. (2) After considering the impugned order of the Under Secretary, it appears that the Under Secretary after setting out some facts, in absolute mechanical exercise of his authority rejected the claim of the writ petitioner for the following reasons : "(1) In the absence of non-availability of record certificate, to the satisfaction of the Government, the secondary evidence like Personal Knowledge Certificate produced by him from Shri S.K. Dhara on the basis of which his case was recommended by the State Government cannot be considered as per provisions of the scheme for grant of pension. (2) Official records are available and you have not been able to produce any evidence from such records in support of your husbands claimed suffering of abscondence. (3) The State Government has forwarded a report from DM, Midnapore which does not conform your claimed suffering of abscondence. (4) The Government of India is, however, still prepared to reconsider your case, if you can produce evidence from official records in support of your claimed suffering and a certificate from the State Government indicating that the records produced is genuine, relates to you and the suffering was in connection with the freedom struggle. (5) This issues with the approval of the competent authority." (3) From a plain reading of the so called reasons set out above a person with reasonable and rational approach cannot have any doubt that the exercise of power was not only extremely mechanical but in passing the order the Under Secretary had taken into account most irrelevant factors leaving out the most relevant considerations in the first place. (4) On a plain reading of the order, I am of the opinion that the whole object with which the Under Secretary passed the impugned order was to reject the claim of the widow of the deceased freedom fighter. (4) On a plain reading of the order, I am of the opinion that the whole object with which the Under Secretary passed the impugned order was to reject the claim of the widow of the deceased freedom fighter. (5) In rejecting the case of the petitioner he had to ignore all the relevant records which were made available to him specially the recommendation of the State Government signed by the Joint Secretary dated 01 February, 1992, annexure P-4 to the writ petition at pages 36 and 37 thereof. (6) From the recommendation of the State Government as recorded in the letter of the Joint Secretary it is seen that the State Advisory Committee, in fact, duly approved the case of late freedom fighter for sanction of "Samman Pension." (7) In addition to that the husband of the petitioner has been certified by a well-known freedom fighter, namely Sushil Kumar Dhara by his certificate dated 12 July, 1981 who under went imprisonment for more than five years during the freedom struggle and was with the husband of the writ petitioner in the same jail during the relevant period of time. The said certificate is part of annexure P-1 to the writ petition appearing at page 28 thereof. (8) The other certificate of the District Magistrate concerned, namely District Magistrate, Midnapore stating that no relevant records relating to the issue of warrants, proclamations and prosecutions during the period 1930-1946 were available is annexed to the writ petition, annexure P-1 thereto appearing at page 24 thereof. (9) After considering the merits of the writ petition and the submissions of learned Counsel Mr. Subrata Dutt for the petitioner, Mr. Dwipayan Sengupta for the State respondents and Ms. Asima Roychowdhury, on behalf of the Union of India, I have no manner of doubt that the order of the Under Secretary should be set aside as the said order was passed, as aforesaid, by taking into account all irrelevant considerations leaving out the most relevant considerations. (10) The Under Secretary also ignored the most relevant provisions in sub-paragraph b (I) and (II) of paragraph 9 of the Swatantra Sainik Samman Pension Scheme, 1980 published on 15 August, 1981. (10) The Under Secretary also ignored the most relevant provisions in sub-paragraph b (I) and (II) of paragraph 9 of the Swatantra Sainik Samman Pension Scheme, 1980 published on 15 August, 1981. (11) The order of the Under Secretary is mechanical as aforesaid and identical to the orders passed in the past in very many cases by the concerned Under Secretaries in rejecting genuine cases of the freedom fighters and those orders which are similar or identical to the impugned order herein were also set aside by the judgments of this Court. (12) The judgment in Sudhansu Bhusan Dutt v. Union of India and Ors. delivered on 09 July, 2004 by this Court, in my opinion, fully covers the case of the writ petitioner and following the said judgment the facts and circumstances of which are identical to the present case I have no hesitation in my mind to set aside the impugned order of rejection of the Under Secretary. (13) The reasons given in the above judgment for setting aside the order under challenge in that case are adopted by me in the present case as well. Furthermore, the Division Bench of this Court in a recent judgment Union of India and Ors. v. Sri Sudhangshu Maity and Ors. reported in (2009)1 Cal LJ (Cal) 922, in fact, approved the view that was taken in the case of Sudhansu Bhusan Dutt (supra). (14) After considering the above two authorities and the facts of this case and the so called reasons by the Under Secretary in rejecting the case of the writ petitioner, I am prompted to say that the little reasons given by the Under Secretary in rejecting the case of the writ petitioner are so unreasonable that I should not take even one minute to set aside the case. (15) Having thus considered the above authority and the relevant provisions of the scheme and the impugned order in question, the impugned order is set aside. The respondents or rather the concerned respondents are directed to grant freedom fighters pension to the writ petitioner, namely the widow of the freedom fighter concerned under the provisions of Swatantra Sainik Samman Pension Scheme, 1981 with effect from the date of her application for obtaining pension i.e. 17 July, 1981. The respondents or rather the concerned respondents are directed to grant freedom fighters pension to the writ petitioner, namely the widow of the freedom fighter concerned under the provisions of Swatantra Sainik Samman Pension Scheme, 1981 with effect from the date of her application for obtaining pension i.e. 17 July, 1981. (16) The petitioner, needless to mention, shall be entitled to pension in arrears since the date of her application, namely 17 July, 1981 within a period of four weeks from the date of communication of this order with interest at the rate of 10% per annum from the date of her application, namely 17 July, 1981 till the date the pension in arrears are actually paid to the petitioner. (17) Since the widow of the freedom fighter, namely the petitioner herein had to invoke the jurisdiction of this Court more than once for obtaining her legitimate pension challenging the merit less orders of rejections of the authority concerned in this case for grant of freedom fighter pension in her favour, the petitioner is entitled to the payment of cost assessed at Rs.10,000/- and such cost shall be paid to the petitioner by the 1 st and the 2nd respondents herein within a period of four weeks from the date of communication of this order. (18) The writ petition is disposed of. (19) There will be no order as to costs.