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2010 DIGILAW 294 (CAL)

Shrihari Charan Daw v. UNION OF INDIA

2010-03-18

SOUMITRA PAL

body2010
JUDGMENT 1. THE judgment of the Court was as follows:- In this writ petition, the petitioner has challenged the order dated 11th July, 2005 passed by the under Secretary to the Government of India, the respondent No.2, declining the prayer of the petitioner for grant of pension under the Swatantrata Sainik Samman Pension Scheme, 1980 (for short the "Scheme") and has prayed for a direction upon the respondents to grant the benefit of pension in accordance with the Scheme. 2. IT is to be noted that in 1972 the Government of India prepared a scheme known as Freedom Fighters' Pension Scheme, 1972 for providing pension to ex-freedom fighters who suffered imprisonment during the freedom struggle. In 1980 a liberalized scheme was introduced which is the Scheme as noted. The liberalized scheme categorized persons eligible for the grant of such pension. A person who remained underground for six months or more provided he was (i) a proclaimed officer or (ii) one on whom an award for arrest/head was announced or (iii) one whom detention order was issued but not served becomes eligible. The Scheme also mandates, which in the instant case assumes significance, is that in the absence of certificate from official records regarding detention, a non-availability record certificate ('NARC for short) from the concerned authority is required along with a certificate from a prominent freedom fighter who had undergone imprisonment for a period of at least two years. In accordance with the Scheme, on 14th September, 1981 the petitioner applied for pension. A certificate regarding absconcion was issued by an eligible certifier. Thereafter, the matter was considered by the District Level Advisory Committee. As evident from Annexure-P/2, the Committee recommended the case of the petitioner for pension on the basis of suffering absconcion from October, 1942 to December, 1943 which was supported by the certificate by the eligible certifier of the same district. Since in spite of recommendation pension was not granted, the petitioner moved a writ petition (Sri Shriharicharan Daw v. Union of India and Ors.) which was disposed of on 8th July, 1994 by directing the respondent Nos. 1 and 2 therein to consider and dispose of the application of the petitioner for grant of pension within two months from the communication of the order taking into consideration the recommendation of the State authorities. 1 and 2 therein to consider and dispose of the application of the petitioner for grant of pension within two months from the communication of the order taking into consideration the recommendation of the State authorities. Pursuant to such direction the matter was considered and by order dated 28th December, 1994 the prayer of the petitioner was rejected. While rejecting the claim it was held thus :- "2..............Your case was earlier considered by the State Government on the presumption that records of the relevant time were not available. However, subsequently the Dist. Magistrate, Midnapore enquired into the matter and in its enquiry report to the State Government has mentioned that the earlier certificates were issued on the basis of non-availability of warrant registers. He has confirmed that there are other records from where details of the persons who have taken part in freedom struggle can be ascertained and the most important document is VCNB which is a permanent record and it is available in the Police Stations from 1930-46. Accordingly, as per the scheme, the secondary evidence like PKC in the absence of non-availability of record certificate cannot be accepted for purpose of grant of pension. It is, therefore, not possible for this Ministry to sanction pension to you on the basis of the Personal Knowledge Certificate given by Shri Hiralal Maity as official records are available and you have failed to submit any evidence in support of claimed suffering from such records. 3. 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 record produced is genuine, relates to you and the suffering was in connection with the freedom struggle." 3. BEING aggrieved by such rejection, on 25th November, 2004 the petitioner moved a writ petition being W.P.No. 12042 (W) of 1998 when directions were issued. Thereafter, the matter came up for final hearing on 17th March, 2005 when the order dated 28th December, 1994 was set aside and quashed. BEING aggrieved by such rejection, on 25th November, 2004 the petitioner moved a writ petition being W.P.No. 12042 (W) of 1998 when directions were issued. Thereafter, the matter came up for final hearing on 17th March, 2005 when the order dated 28th December, 1994 was set aside and quashed. While passing the order the learned Single Judge held that the admitted position was that the personal knowledge certificate issued by the eligible certifier was not considered by the authority and unnecessary emphasis was given on the Village Crime Note Book (in short 'VCNB') for disbelieving the claim of the petitioner which showed that there was non-application of mind. Moreover, it was also held that the nature and contents of the village crime note book were not considered by the competent authority in any manner whatsoever. Referring to the judgment in Gokul Chandra Panja v. Union of India and Ors., reported in 1999 (1) Cal. LT 241 (HC), it was held that had the authority "considered the nature and contents of the village crime note book perhaps he would not have rejected the petitioner's application on the ground that village crime note book did not show his suffering as a freedom fighter". Liberty was granted to the petitioner to make a detailed representation to the Central Government and for making out a case in view of various decisions of this Court and also of the Apex Court and the personal knowledge certificate produced by him. The competent authority was directed to give fresh reasoned decision after considering each and every point taken by the petitioner in his representation. 4. PURSUANT thereto the petitioner filed a representation enclosing judgments in support of his contentions. Since, according to the petitioner, the matter was not considered, a letter dated 28th May, 2005 demanding justice was issued. Thereafter, the order impugned was passed. The matter was moved on 28th July, 2005 when directions were issued for filing of affidavits. Affidavits have since been exchanged and are on record. 5. LEARNED Advocate appearing on behalf of the petitioner submits that since primary evidence was not available, in accordance with the Scheme, the application was accompanied by a certificate issued by an eligible certifier. The matter was moved on 28th July, 2005 when directions were issued for filing of affidavits. Affidavits have since been exchanged and are on record. 5. LEARNED Advocate appearing on behalf of the petitioner submits that since primary evidence was not available, in accordance with the Scheme, the application was accompanied by a certificate issued by an eligible certifier. Though, in W. P. No. 12042(W) of 1998, relying on the judgment in Gokul Chandra Panja (supra), it was held had the authority considered the nature and contents of the village crime note book he would not have rejected the application on the ground that the village crime note book did not show his suffering as a freedom fighter, yet the case of the petitioner has again been rejected on the basis of the VCNB which, according to the authority was an important document. Submission is though earlier NARC was issued, however, the claim of the petitioner has been turned down on the ground that there were other records though no records have been produced in support thereof. Since the Scheme envisages recommendation, rejection on the ground that there was no positive recommendation in favour of the petitioner is uncalled for. Moreover, the order impugned is stereotyped as evident from Paragraph 3(v) thereof which is similar to order in C.O. No. T5307(W) of 1995 (Sri Satish Chandra Maity v. Union of India 4 Ors.). 6. LEARNED Advocates appearing on behalf of respondents submit that unless the application of the petitioner is supported by the records, mere personal knowledge certificate issued by a certified freedom fighter without valid NARC would not entitle the petitioner for grant of pension. Since records are available and name of the applicant does not figure in such records, the order passed is just and proper. It is an admitted fact that the petitioner had applied for Pension under the liberalized Scheme of 1980. It was supported by a personal knowledge certificate of an eligible certifier under the Scheme. The question which falls for consideration whether the respondent No.2 was justified in declining the prayer of the petitioner for grant of pension. In order to answer the issue it is necessary to refer to the relevant portion of the order which is as under:- "3. The question which falls for consideration whether the respondent No.2 was justified in declining the prayer of the petitioner for grant of pension. In order to answer the issue it is necessary to refer to the relevant portion of the order which is as under:- "3. iv) District Magistrate Midnapore enquired into the matter and gave his enquiry report to the State Government, wherein it has been mentioned that the earlier Certificates of Non-availability of Records were issued on the basis of Non-availability of Warrant Register alone. The D.M. confirmed that there are other records from where details of the persons who have taken part in the freedom struggle can be ascertained and the most important document is the VCNB which is a permanent record and it is available in the Police Stations from 1930-46. (v) The State Government, vide its letter No. 1972-HPS/59 398/83, dated 1/14.08.95, forwarded a copy of the verification report from the D.M./S.P.(DIB), Midnapore, in respect of your suffering which, inter alia, states as follows: "..available police records including Thana and DIB were duly consulted but nothing transpired about his past political activities during the period as claimed in the petition or during pre- independence days." (vi) The State Government, who were consulted again on your representation dated 29.03.2005, have confirmed, vide their, letter No. 382-HPS/59398 dated 6.7.2005, that you are not eligible for Swatantrata Sainik Samman Pension on the basis of DM/ SP(DB)'s report. (vii) The State Government has not given a positive recommendation in your favour, which is a mandatory requirement under the Scheme." 7. UNDER the Scheme in the absence of record an applicant should furnish a certificate from an eligible certifier along with a NARC from the concerned authorities. In the instant case the petitioner had filed the application along with a certificate from an eligible certifier. As seen, relying on the VCNB which, according to the respondents, was a 'permanent record' the claim of the petitioners was turned down by order dated 28th December, 1994. It is to be noted that High Court in its order dated 17th March, 2005 relying on Gokul Chandra Panja (supra) had held that VCNB does not to show the requisite particulars of a freedom fighter. However, as evident from Paragraph 3(iv) of the order impugned, while rejecting the application the authority had again relied on the VCNB. It is to be noted that High Court in its order dated 17th March, 2005 relying on Gokul Chandra Panja (supra) had held that VCNB does not to show the requisite particulars of a freedom fighter. However, as evident from Paragraph 3(iv) of the order impugned, while rejecting the application the authority had again relied on the VCNB. Moreover, though it has been mentioned that "The D.M. confirmed that there are other records from where details of the persons who have taken part in the freedom struggle can be ascertained", yet those records have not been appended to the affidavit-in-opposition filed on behalf of the Union of India. Since the affidavit-in-opposition does not mention about the other records, in my view, the NARC which finds mention in Paragraph 3(iv), stands. Further in Paragraph 3(v) of the order impugned the authority had relied on a verification report from the D.M./S.P., D.I.B. Medinipur in respect of the suffering which is a similar to a report of the Superintendent of Police which finds mention in F.M.A. No.1181 of 2007 of Union of India and Ors. v. Sri Satish Chandra Maity wherein the Division Bench had affirmed the order passed by the learned Single Judge directing to release pension. Therefore, it is clear that while considering the application the authorities acted mechanically and thus it cannot be taken as a ground for rejection. Further as envisaged under the Scheme since mere recommendation is enough which is there indeed, rejection of the claim that there was no positive recommendation from the State Government cannot be sustained. It is to be noted that the order dated 12th April, 1983 issued by the Deputy Sectetary to the Government speaks of recommendation only. In this regard it is to be noted that the Deputy Secretary to the Government of India by Notification dated 13th April, 1982 had intimated that under the liberalised pension scheme in the absence of official records because of their non-availability, a certificate from a prominent freedom fighter who was himself had been in jail in connection with national freedom struggle for not less than five years would be acceptable to substantiate the claim of abscondence, internment or externment. According to the said notification it is an alternative mode of evidence and before relying on the same the Government should satisfy itself that the applicant was a genuine freedom fighter and official records are not available. Incidentally, there has been further relaxation so far as certifier is concerned since by Notification dated 21st August, 1984 issued by the Government of India, a freedom fighter who had undergone a minimum imprisonment of two years is eligible to certify. In this context it is noteworthy that neither the recommendation made by the District Level Advisory Committee on the basis of the certificate issued by the eligible certifier being Annexure-P/2 to the writ petition nor the NARC have been withdrawn. Besides, though the order impugned mentions about the other records, nothing has been disclosed. In this case as the petitioner had applied along with a certificate of an eligible certifier, as recommendation made is still in vogue and as NARC was furnished as evident from the order itself, in my view, the petitioner has made out a case for grant of reliefs as prayed for. Therefore, the order impugned cannot be sustained and is, thus, set aside and quashed. The respondent No.2 is directed to grant pension to the petitioner within a period of six weeks from the date of furnishing the certified copy of this order, however, after satisfying himself regarding the veracity of the certificate being Annexure P-2 to the writ petition. It is made clear that the Central Government shall not incorporate any new or additional ground while considering the genuineness of the certificate. It is further directed that the respondents shall pay the arrear pension from the date of his application in accordance with law within the time as already mentioned. 8. THE writ petition is allowed. There will be no order as to costs. Let urgent photo-stat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.