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2010 DIGILAW 873 (GAU)

Byomkesh Paul v. Union of India

2010-11-22

UTPALENDU BIKAS SAHA

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JUDGMENT U.B. Saha, J. 1. By this writ petition, the petitioner, a freedom fighter approached this court for exercising its power of judicial review by issuing a writ in the nature of certiorari for quashing and setting aside the letter No.30/607/73-EZ-I dated 11.8.2000 (Annexure-I to the writ petition), issued on behalf of Under Secretary to the Govt. of India by which the learned counsel for the petitioner was informed that the case of the petitioner was placed before a non-official high level committee consisting leading lights of freedom fighters known as East India Committee which did not recommend the case of the petitioner and the said fact was conveyed to the petitioner vide letters dated 8.8.89, 20.11.89 and 30.8.1990 and ultimately the authority declined to grant Swatantrata Sainik Samman Pension (for short 'SSSP') to the petitioner. The petitioner also prayed for a direction to the respondents and each of them to allow him the Freedom Fighter's pension with retrospective effect from 1972 with all arrears. 2. Heard Mr. D.Chakraborty, learned counsel for the petitioner and Mr. TD Majumder, learned counsel appearing on behalf of respondents No.2 and 4. None appears on behalf of respondents No.1 and 3. 3. The pleaded case of the petitioner required to be discussed for disposal of this writ petition, in brief, is as follows: The petitioner had participated in the Quit India Movement for some time in the year 1941-42 AD. He also absconded to evade arrest and detention and ultimately he was arrested and sent to jail. The Government of India to show highest respect to the freedom fighters of the Nation formulated a scheme, namely, Freedom Fighter's Pension Scheme, 1972 (herein after referred to as 'the Scheme') wherein the respective authorities prescribed the procedure for granting the benefit of such scheme with a rider, inter alia, that a freedom fighter would not be entitled to be considered to get the benefit of the scheme if his annual income is more than Rs.4,999/-. After the aforesaid scheme came into force the petitioner raised his grievances to the respondent No.1 vide his application dated 7.7.1972 which was ultimately replied by the respondent No.1 through the Deputy Secretary to the Govt. After the aforesaid scheme came into force the petitioner raised his grievances to the respondent No.1 vide his application dated 7.7.1972 which was ultimately replied by the respondent No.1 through the Deputy Secretary to the Govt. of India vide letter dated 10.3.1975 (Annexure-A to the writ petition) wherein the petitioner was asked to apply for review of his case after his annual income fell below Rs.5,000/- p.a. with the documents namely, (i) attested copy of the order of retirement, if he was in service, (ii) fresh affidavit showing his gross annual income as he would having at that time and (iii) documentary evidence regarding his suffering e.g. jail certificate showing date of sentence and the date of release/co-prisoners certificate from M.P./M.P. or M.L.A. etc. Since August 1980 the annual income ceiling of Rs.5,000/- as prescribed in the scheme had been removed by the concerned authority vide letter dated 6.8.1980 (Annexure-B to the writ petition) issued by the Deputy Secretary to the Govt. of India. The petitioner vide his letter dated 10.10.1980 again applied for grant of pension under the Scheme and upon receipt of the said letter of the petitioner, the Under Secretary to the Govt. of India vide his letter dated 10.2.1988 (Annexure-C to the writ petition) informed the petitioner that it was not possible to consider his case for grant of Samman Pension as the documents/evidence sent by him along with his application did not prove his claim of suffering and his claim has not been recommended by the State Government. Again by letter dated 13.12.1990 (Annexure-D to the writ petition), the Under Secretary to the Govt. of India informed the petitioner that as per the provisions of the scheme he was required to submit an application duly filled in along with the relevant documents in support of his claimed sufferings to the Ministry of Home Affairs as well as the State Government. The petitioner was also informed that if he had furnished the new evidence in support of his claim then he should pursue the matter with the State Government. Thereafter, the petitioner submitted an application on 2.5.1995 (Annexure-E to the writ petition) along with the required documents to the Under Secretary to the Government of India, Ministry of Home Affairs. The petitioner was also informed that if he had furnished the new evidence in support of his claim then he should pursue the matter with the State Government. Thereafter, the petitioner submitted an application on 2.5.1995 (Annexure-E to the writ petition) along with the required documents to the Under Secretary to the Government of India, Ministry of Home Affairs. In response to the said application of the petitioner dated 2.5.1995, the Union respondent through its Under Secretary vide Annexure-F letter dated 1.1.1999 informed the petitioner that his case was examined by the Freedom Fighters' Pension Review Committee in its meeting held on 16.12.1998, but the committee did not recommend his case as no new valid document in respect of his claimed suffering for grant of political pension has been submitted by him. Again on 18.2.1999 vide Annexure-G to the writ petition, the petitioner was informed by the Union respondent through its Under Secretary, Ministry of Home Affairs that the State Govt's Freedom Fighter Pension Review Committee did not recommend his case on the ground that no new valid documents had been submitted by him and for that reason the petitioner is not eligible for SSSP under the scheme. Being aggrieved by the action of the respondents, particularly the respondent Union of India, the petitioner approached a learned counsel and through her he made a demand for the pension (Annexure-H to the writ petition). In response to the said demand of the petitioner, the respondent Union of India vide letter dated 11.8.2000 (Annexure-I to the writ petition) informed the learned counsel for the petitioner that no case was made out by the petitioner for granting him the pension under the Scheme and in the said letter the Union respondent also quoted certain portion of the decision of the Apex Court in Mukund Lal Bhandari vrs. Union of India, reported in AIR 1993 SC 2127 . Hence the writ petition. 4. The respondent No.1 Union of India as well as the State respondents by way of filing their respective affidavits-in-opposition/counter-affidavits denied the allegations of the petitioner and contested the case. In response to the affidavits-inopposition/counter-affidavits of the respondents, the petitioner also filed an affidavit-in-rejoinder. 5. Mr. Union of India, reported in AIR 1993 SC 2127 . Hence the writ petition. 4. The respondent No.1 Union of India as well as the State respondents by way of filing their respective affidavits-in-opposition/counter-affidavits denied the allegations of the petitioner and contested the case. In response to the affidavits-inopposition/counter-affidavits of the respondents, the petitioner also filed an affidavit-in-rejoinder. 5. Mr. Chakraborty, learned counsel for the petitioner while urging for the relief sought for would contend that the present petitioner submitted the required documents for getting the pension under the Scheme along with his letter dated 2.5.1995 (Annexure-E to the writ petition) and even after submission of those documents, the authority denied the benefit of that scheme to the petitioner, which is not only unreasonable, but also unfair on the part of the respondents. He further contended that the Scheme was enacted only for recognizing those persons who sacrificed their lives for the Nation at the time of freedom movement and the present petitioner took active part in the freedom movement and detained in prison. He finally contended that the State Government's Freedom Fighters' Pension Review Committee failed to consider the documents submitted by the petitioner in its entirety and for the non-action of the State Pension Review Committee, the petitioner has been deprived of by the Union respondents. 6. Mr. Majumder, learned State counsel while resisting the prayer of the petitioner took us to paragraph 7 of the affidavit-in-opposition filed by the State respondents and contended that the case of the petitioner was taken up by the Review/Scrutiny committee constituted by the State Government under instructions of the respondent Union of India, which after consideration of the case of the petitioner again and again along with the documents subsequently submitted by him found that the documents submitted by the petitioner in support of his claim were not the required documents and not only that those documents were issued by the persons who were not the co-prisoners of the petitioner in any prison prior to independence of the country. To appreciate the submission of Mr. Majumder, it would be proper for this court to re-produce para 7 of the affidavit-in-opposition of the State respondents. Accordingly, the same is reproduced herein under :- 7. To appreciate the submission of Mr. Majumder, it would be proper for this court to re-produce para 7 of the affidavit-in-opposition of the State respondents. Accordingly, the same is reproduced herein under :- 7. During Silver Jubilee of Independence of India, Central Government launched a scheme for grant of pension to the Freedom Fighters and their families from Central Revenue which was known as Freedom Fighter's Pension Scheme, 1972. Later it was renamed as Swatantrata Sainik Samman Pension Scheme, 1980. The Scheme came into force from 15.8.1972. According to the scheme applicants for grant of pension shall make application in prescribe form directly to the Union of India and a copy of the said application may be made to the Government of Tripura for expediting the matter. The Government of Tripura having receipt the copy of the application would send the same to the scrutiny committee constituted under the order of the Union of India for the purpose. The scrutiny Committee used to make enquiries and recommends in the event of the case found genuine. The Government of Tripura has no role on the decision making process of the Review Committee. When ever the Government of Tripura received the decision of the Review committee then and then the Government would transmit the same to the Union of India for decision, since the Union of India is the granting authority for the Freedom Fighter's Pension and the budgetary provisions also from the central Revenue. Therefore, Government of Tripura has no independent role in the matter. In the instant case the Review Committee for the first time recommended the case of the petitioner for grant of pension to the Central Government who did not grant pension to the petitioner. The case of the respondent no-2 and 4, in brief, is that the petitioner did not furnish the required documentary evidence in proof of alleged sufferings in Dhaka Jail for participation in August Movement in 1941-42. The certificate attached with the application are not the required certificate asked for under the scheme. The case of the petitioner was placed thrice before the State level Committee yet the committee did not recommend. Therefore State Government cannot be faulted with. State Government only communicated the recommendation/findings of Committee constituted for the purpose to the Central Government. State has no control or supervision over the functions of committee. The case of the petitioner was placed thrice before the State level Committee yet the committee did not recommend. Therefore State Government cannot be faulted with. State Government only communicated the recommendation/findings of Committee constituted for the purpose to the Central Government. State has no control or supervision over the functions of committee. Only it will render all assistance top the committee as and when required. 7. It is also stated in the affidavit-in-opposition that the case of the petitioner was again placed before the Review Committee under the Chairmanship of Shri Deba Prasad Sengupta on 25.9.1995 which carefully considered the documents submitted by the petitioner and ultimately did not recommend the case of the petitioner for the pension as sought for to the Govt. of India and the petitioner was accordingly informed of. 8. The Union of India respondent in its affidavit contended, inter alia, that during 1972, the 25th Anniversary of Independence, the Government of India introduced the Scheme for grant of Freedom Fighter's Pension to freedom fighters and their families, if they were no more alive and to the family of martyrs. Pension was admissible to those freedom fighters whose annual income was less than Rs.5,000/- and who had suffered imprisonment/abscondence/interment/exterment for atleast six months against an executive order to the then Government in connection with the freedom struggle. It is also contended that though the Scheme provided for production of an evidence from official records of the relevant time during which the applicant had claimed suffering, but secondary evidence in the form of co-prisoner's certificate (CPC) was also accepted in respect of jail suffering if the same was issued by a legislator or ex-legislator where official records were not available. Subsequently, the Union of India prepared a Scheme, namely, Swatantrata Sainik Samman Pension Scheme, 1980 (for short 'the Scheme of 1980') and due to the enactment of the aforesaid scheme of 1980, the scheme of 1972 ceased to exist. In para 7 of the counter-affidavit, the Union of India respondent also reproduced the material portion of the judgment of the Apex Court in Mukund Lal Bhandari (supra) and denied the allegation of the petitioner made in the writ petition. 9. This court has anxiously considered the submission of the learned counsel for the parties and the records available before it. On query of this court, Mr. 9. This court has anxiously considered the submission of the learned counsel for the parties and the records available before it. On query of this court, Mr. Chakraborty, learned counsel for the petitioner could not show any certificate issued by the co-prisoner of the petitioner. However, he tried to convince this court by pointing out a certificate issued by one Sailendra Ch. Deb reference of which has been given in paragraph 10 of the writ petition from which it would be evident that the petitioner was a co-prisoner in the same jail with said Shri Deb. The contention of the State respondents in respect of that certificate is that the said document was also taken into consideration by the Review Committee which is evident from para 17 of the affidavit-in-opposition/counter-affidavit of the State respondents. 10. In Mukund Lal Bhandari (supra), the Apex Court noted, inter alia, As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is function of the Government to do so. We would, therefore, direct accordingly. 11. Merely a person claims that he had undergone imprisonment in connection with freedom movement will not by itself entitle him to get the benefit of the Scheme. The requirement of the Scheme is that the person claimed to be a prisoner relating to freedom movement as a freedom fighter has to prove his claim by way of producing documents as required under the Scheme and non-production of those documents would disentitle the person to get the benefit of the scheme. Mr. Majumder, learned State counsel submits that he is not in a position to say whether the petitioner submitted the certificate issued by Shri Sailendra Ch. Deb with his application dated 2.5.1995 as claimed by the petitioner or not and if the same was produced by the petitioner whether the concerned authority considered the same or not. 12. It is also settled by this time that each and every decision of the executive authority is not challengeable in the court of law unless the same affects the fundamental or legal right of a citizen. 12. It is also settled by this time that each and every decision of the executive authority is not challengeable in the court of law unless the same affects the fundamental or legal right of a citizen. In the instant case, whether the petitioner is really a freedom fighter and comes within the scheme framed by the Union respondent in the year 1980 is in question. Upon going through the records, this court is of the considered opinion that when the Review Committee constituted by the State respondents considered the application of the petitioner along with the documents submitted by him, it would not be proper for this court to sit over the decision of the said committee as an appellate authority. The court can only interfere where there is some wrong in the decision making process, but not with the decision of the executive authority. While expressing the aforesaid view this court also considered the certificate issued by Shri Sailendra Ch. Deb, allegedly a co-prisoner of the petitioner. Whether said Shri Deb was in jail with the petitioner or not, that is a matter of fact, which is disputed by the respondents in their counter-affidavits and as such it would not be proper for this court to decide the correctness of the said certificate. At the same time, the court cannot also ignore the said certificate. If really the petitioner is a freedom fighter and detained in prison in India prior to independence, he should not be denied the benefit as provided by the Union respondent under the Scheme of 1980. 13. Under the above circumstances, this court is of the considered opinion that it would meet justice if this writ petition is disposed of with the following directions : The petitioner will produce a photocopy of the certificate dated 18.4.1995, issued by Shri Sailendra Chandra Deb (Annexure-J to the affidavit in rejoinder) along with other required documents as per the scheme of 1980 before the Review Committee constituted by the State of Tripura through the Secretary, Political Department, Govt. of Tripura within a period of 3 (three) weeks from today. The Secretary, Political Department, Govt. of Tripura within a period of 3 (three) weeks from today. The Secretary, Political Department, Govt. of Tripura will place the same before the Review Committee within another two weeks and the Review Committee will consider the aforesaid certificate dated 18.4.1995 along with other documents afresh if the same were not considered earlier subject to the original certificate dated 18.4.1995 was submitted by the petitioner along with his application dated 2.5.1995. Order accordingly. 14. The writ petition stands disposed of accordingly. No cost.