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2011 DIGILAW 102 (CAL)

UNION OF INDIA v. Shyamapada Pramanick

2011-01-21

ASIM KUMAR RAY, PINAKI CHANDRA GHOSE

body2011
JUDGMENT GHOSE, J. 1. THIS appeal is directed against an order dated 23rd September, 2009 passed by the Hon'ble First Court allowing the writ Petition in favour of the writ Petitioner. 2. THE writ Petitioner filed the said writ Petition claiming pension under the scheme known as Swatantrata Sanik Samiman Pension Scheme, 1980 (hereinafter referred to as Scheme) by a judgment and/or order dated 23rd September, 2009 passed by the Hon'ble First Court when His Lordship was pleased to hold as follows : Thus, having considered the above authorities 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 fighter's pension to the writ petitioner under the provisions of Swantrata Sanik Samman Pension Scheme, 1980 with effect from the date of his application for obtaining pension i.e. 18th August, 1981. THE petitioner, needless to mention, shall be entitled to pension in arrears since the date of his application, namely 18th August, 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 his application, namely 18th August, 1981 till the date the pension in arrears are actually paid to the petitioner. Since the freedom fighter, namely the petitioner herein had to invoke the jurisdiction of this Court more than once for obtaining his legitimate pension challenging the merit less orders of rejections of the authority concerned in this case for grant of freedom fighter pension in his 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 1st and/or 2nd respondents herein within a period of four weeks from the date of communication of this order. THE writ petition is disposed of. There will be no order as to costs." Being aggrieved, this appeal has been field by the Union of India. The facts of the case briefly are as follows : 3. ON 1st August, 1980 the Government of India decided to grant benefit of pension to the freedom fighters who had dedicated their lives during the freedom movement. A scheme for the purpose of granting such pension, a scheme has been introduced known as Swatantrata Sanik Samman Pension Scheme, 1980 (scheme) to the freedom fighters. ON 1st August, 1980 the Government of India decided to grant benefit of pension to the freedom fighters who had dedicated their lives during the freedom movement. A scheme for the purpose of granting such pension, a scheme has been introduced known as Swatantrata Sanik Samman Pension Scheme, 1980 (scheme) to the freedom fighters. In these circumstances in the year 1982 the writ petitioner/respondent applied for pension under the said Scheme on the basis of a personal knowledge certificate issued by an eminent certifier Hiralal Maity of Midnapore District. The District Magistrate of the said District stated that it records of the sufferings of freedom movement from 1930 to 1946 are not available for the purpose of consideration of the application for grant of benefit of pension to the writ petitioner. The writ petitioner's application was rejected by the Union Government on the ground that the certificate which was issued by Hirarlal Maity cannot be accepted as evidence. The certificate was not certified by an eligible certifier for grant of such certificates. The said communication was challenged by the writ petitioner in CO. No. 21445 (W) of 1995 which was disposed of by the High Court directing the Central Government to consider the application of the writ petitioner afresh as Hiralal Maity was accepted as an eligible certifier. 4. THE Under Secretary issued a letter in the year 1996 informing that although the recommendation has been made cannot be accepted by the Government of India on the grounds that records relating to the sufferings are available more particularly in the Crime Note Book and thereby personal knowledge certificate issued by Hiralal Maity cannot be accepted. The writ petitioner again moved a writ petition being W.P. No. 12044 (W) of 1998 before this Court and on 23rd July, 2002 the said writ petition was disposed of by the Court quashing the letter of communication issued by the Under Secretary, Government of India. The Court further directed the authority to consider the case of the writ petitioner afresh in the light of recommendation of the State Government keeping in view of the noble object of the scheme and in compliance with the judgment and in the light of the decision of Mukundalal Bhandari v. Union of India reported in AIR 1993 SC 2127 . 5. 5. IT appears that thereafter on behalf of the Central Government several letters were issued requesting the State to forward report regarding sufferings of the writ petitioner. In compliance with the said request, the Government of West Bengal forwarded a report dated 8th November, 1993 and 16th November, 1993. IT was informed thereafter on 30th April, 2003 by the Government of India that report relating to sufferings are still available more particularly in Village Crime Note Book which is a permanent record and is available from 1930 to 1946. 6. IT is further pointed out that in the absence of document regarding the sufferings as claimed by the writ petitioner, the prayer for granting the benefit of pension cannot be accepted. In the similar situation in the case of Smt. Shakti Bala Samanta's is relevant (2000)1 Cal LJ 572. In these circumstance third writ petition was moved and the Court was pleased to allow the prayer in favour of the writ petitioner. 7. Being aggrieved, the instant appeal has been preferred by the Union of India on the ground that the Hon'ble Single Judge erred in law in allowing the writ petition by holding that the order of the respondent (No. 2) is mechanical and also ignored the most relevant provisions in subparagraph b(l) and (II) of paragraph 9 of the said Swatantrata Sainik Samman Pension Scheme, 1980. 8. MR. U.P. Mukherjee, learned Advocate appearing for the Union of India contended that the learned Trial Judge failed to appreciate that without the available materials, the authority has no power to grant such pension. Furthermore a mandatory direction could not have been passed by the Court to grant pension with effect from 18th August, 1981 with all consequential benefits by relying on a secondary evidence of personal knowledge certificate issued by Shri Hiralal Maity and Netai Chandra Jana. It is further contended that the judgment delivered in Mukundlal Bhandari v. Union of India and Ors. reported in AIR 1993 SC 2127 where the Court held that the writ petitioner undoubtedly be entitled to the benefit .of the Scheme provided, of course, they produce the relevant material in support of their claim. In the facts and circumstances of this case the writ petitioner has failed to produce the relevant material in support of his claim. reported in AIR 1993 SC 2127 where the Court held that the writ petitioner undoubtedly be entitled to the benefit .of the Scheme provided, of course, they produce the relevant material in support of their claim. In the facts and circumstances of this case the writ petitioner has failed to produce the relevant material in support of his claim. The Court further held that the certificate which has been issued and acted on the basis that the said certificate is a conclusive proof for granting pension under the said Scheme. 9. IT is further contended that such was not the intention of the scheme which was propounded at that point of time. IT is further contended that the cost which has been directed to be paid by the respondent Nos. 1 and 2 to the writ petitioners is also could not have been awarded in the facts and circumstances of this case and that should have been set aside. 10. THE learned Advocate further relied upon the decision in the case of W.B. Freedom Fighters' Organisation v. Union of India and Ors. reported in (2004)7 SC 716 where in the similar situation the Hon'ble Supreme Court held that the applicants had not submitted the relevant documents, but had given only certificates from co-prisoner without producing NARC's and that is most of the cases the applicants claimed to have gone underground. THE Committee therefore rejected all the applications and the Hon'ble Supreme Court held that it is not possible for Supreme Court to interfere as the Committee has come to a conclusion on the basis of available materials and that conclusion cannot be said to be perverse or no reasonable person could have arrived at such conclusion. He also relied upon the decision which has been cited before us on behalf of the appellant in the case of Union of India v. Bikash R. Bhowmik and Ors. reported in (2004) 7 SCC 722 where the three Judges' Bench of the Court held that pension can only be sanctioned as per proof required under the scheme and in no other manner. 11. ON the contrary, Mr. Ram Dulal Manna, learned Advocate appearing on behalf of the respondent has relied upon the decisions in the case of Sudhansu Bhusan Dutta v. Union of India and Ors.; Union of India and Ors. v. Sri Sudhangshu Maity and Ors. 11. ON the contrary, Mr. Ram Dulal Manna, learned Advocate appearing on behalf of the respondent has relied upon the decisions in the case of Sudhansu Bhusan Dutta v. Union of India and Ors.; Union of India and Ors. v. Sri Sudhangshu Maity and Ors. reported in (2009)1 Cal LJ (Cal) 922 and submitted that the Hon'ble First Court has correctly came to the conclusion and it is submitted that appeal should be dismissed and the appellant should be directed to make the payment immediately. 12. IT is further submitted that no records are available and, therefore, the case of the writ petitioner should have been considered on the basis of the second re-evidence produced before the authorities. IT is further contended that in a decision reported in 1995 Calcutta 336 (Chaitanya Charan Das case) where it has been specifically stated as follows : "However, the cases of those who allegedly had gone underground may stand on different footing. Only on an apprehension that he may be arrested, an application might have gone underground, although no case had been registered against him. In such a case, in terms of a policy adopted in the scheme, the applicant may not be entitled to obtain the benefit of the scheme." It is further submitted that in the case of Union of India and Ors. v. Sri Sudhangshu Maity (supra) the facts are almost identical to this present writ petition and, therefore, it is submitted that the appeal should be dismissed. 13. WE have heard the learned Advocates at a length. The issue arises in the given facts whether the writ petitioner fulfilled the criteria to receive the pension under the said Scheme? 14. WE have noticed the Government of India had announced the scheme known as SSSP Scheme, 1980 whereunder freedom fighters were to receive pension as stated in the said Scheme. It is mentioned in the said scheme that if any person who had suffered minimum imprisonment of three months is eligible to receive a pension. 14. WE have noticed the Government of India had announced the scheme known as SSSP Scheme, 1980 whereunder freedom fighters were to receive pension as stated in the said Scheme. It is mentioned in the said scheme that if any person who had suffered minimum imprisonment of three months is eligible to receive a pension. If a person claims pension under the said scheme then it is his duty to prove his claim in the manner set out hereunder and if he can come within the said criteria then he will get the benefit out of the said Scheme : "The applicants should furnish the documents indicated below whichever is applicable in order to prove his claim sufferings for grant of pension under the Scheme: (A) Imprisonment/detention: Certificate from the jail authority, District Magistrate or the State Government concerned, indicating period of sentence awarded, date of admission, date of release and reasons for release, a nonavailability of records certificate (NARC) from the authorities concerned along with co-prisoners' certificates (CPC) as under: (i) Two co-prisoners' certificates from the freedom fighter pensioners who had a proven jail suffering of one year. (ii) One co-prisoner's certificate from a sitting MP or MLA or from an ex-MP or an ex-MLA specifying his jail period and that of the applicant (Annexure I of the application form). (b) Documentary evidence by way of Court's/government's orders proclaiming, the applicant as an offender, announcing an award on his head or for his arrest or ordering his detention. In the absence of such certificates from official recorded, a non-availability of records certificates from the authorities concerned along with a certificate from a prominent freedom fighter who had undergone imprisonment for a period of at least two years or more." Thus, it is to be seen that the applicant had to furnish a certificate from the jail authority, District Magistrate or the State authorities indicating the period of sentence awarded, date of admission, date of release and reasons for release and in the absence of such a certificate, a non-availability of record certificate (NARC) along with a co-prisoners' certificate (CPC), namely, two certificates from freedom fighters who had a proven jail suffering for one year or one certificate from a sitting MP or MLA or an ex-MP or ex- MLA to be produced and/or furnished by the person claiming such pension. In case of persons having gone underground documentary evidence by way of proclamation of the applicant as an offender, announcing an award for his arrest or an order of detention to be produced and/or to be furnished. In the absence of official record a certificate from a prominent freedom fighter who had undergone imprisonment for a period of at least two years, was to be furnished. 15. IN the instant case, a non-availabiliry certificate was issued by the State. The State recommended the claims of the writ petitioner, two certificates were furnished by the writ petitioner in terms of the Scheme. Those two certificates were issued by the two prominent freedom fighters who had undergone imprisonment as provided under the Scheme. Therefore, it appears to us that the writ petitioner comes within the criteria mentioned in the Scheme to receive such pension. Therefore, the issue raised in the appear to be answered in his favour and we hold that he is entitled to get pension under the said Scheme. 16. IN Chaitnya Charan Das v. State of W.B. reported in AIR 1995 Calcutta 336 the Court held that an Advisory Committee be set up by the State Government for looking into the applications. It was further directed that once the Government was satisfied about the genuineness and bona fides of a claim than payment had to be made. It was also noted that the State Government and the Central Government were aware that in many cases records were not available. It was held that in such cases where the records were not available, claim of the applicants supported by a personal knowledge certificate of a co-prisoner cannot be and should not be eligible disbelieved. Following the norms laid down by the Court we hold that certificates issued in favour of the writ petitioner cannot be ignored by the applicants. 17. IN this context we have noticed that the Supreme Court in the case of Gourdial Singh v. Union of India reported in (2001) 8 SCC 8 held that: "7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment offered by them.- Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of 'beyond reasonable doubt'. Once on the basis of the evidence it is probalised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence." 8. We have noticed with disgust that the respondent authorities have adopted a hypertechnical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the Scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and closed mind, completely ignoring the verdict of this Court in Mukund Lal Bhandari case. We further feel that after granting the pension to the appellant, the respondents were not justified in rejecting his claim on the basis of material which already existed, justifying the grant of pension in his favour. We further feel that after granting the pension to the appellant, the respondents were not justified in rejecting his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his." 18. In Mukund Lal Bhandari v. Union of India, (1993 Suppl (3) SCC 2, where the Court held : "9. That the leaves us with the question as to whether, notwithstanding the date on which the application itself is made, the claimant should be entitled to the benefit of the pension with effect from an earlier date. IN support of the contention that the benefit should be made available with retrospective effect, reliance is placed on the two cases cited earlier where the benefit is given with effect from August 1, 1980. We have given our anxious consideration to the question and are of the view that for reasons more than one, the benefit should flow only from the date of the earlier cases the question with regard to the retrospectively of the benefit was neither raised nor answered. We have, therefore, to decide it for the first time. There is no doubt that if the object of the Scheme is to benefit the freedom fighters, theoretically, they should be entitled to the benefit from the date the Scheme came into operation. But the history, the true spirit and the object of the Scheme would itself probably not support such strain- jacket formula. As has been pointed out above, the Scheme was introduced in 1972 on the occasion of the Silver Jubilee of our National Independence. It is not suggested that some of the freedom fighters were not in need of financial assistance prior to that date. When the Scheme came into force for the first time, it was also restricted to those who were in need of such assistance and hence only such freedom fighters were given its benefit, whose annual income did not exceed Rs.5000. It is only later, i.e. from August 1, 1980, that the benefit was extended to all irrespective of their income. The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. It is only later, i.e. from August 1, 1980, that the benefit was extended to all irrespective of their income. The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. IN fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date of application is made. The Scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependants. The preference in employment, allotment of accommodation and in admission to schools and colleges to their kith and kin etc. are also the other benefits which have been made available to them, for quite sometime now." In Gourdail Singh (supra) case, the Supreme Court held that the pension under the said Scheme should be payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not. 19. IN the case of State of Maharashtra v. Raghunath Gajanan Waingankar reported in (2004)6 SCC 582 where the Supreme Court again reiterated that it is for the Government to be satisfied with regard to genuineness of a claim and the Court cannot sit in judgment over the decision of the State Government like an appellate authority. 19. IN the case of State of Maharashtra v. Raghunath Gajanan Waingankar reported in (2004)6 SCC 582 where the Supreme Court again reiterated that it is for the Government to be satisfied with regard to genuineness of a claim and the Court cannot sit in judgment over the decision of the State Government like an appellate authority. It has been held that the Court cannot, while exercising writ jurisdiction, enter into a reappreciation of evidence and/or reverse findings arrived at by the State Government, unless the same is perverse. 20. NOW the question is whether the said pension is payable from the date of his application i.e. 18th August, 1981 or from any other subsequent date? We have scrutinized the facts and it appears from the materials placed before us that State Government recommended his case and on 23rd July, 2002 the Court in W.P. No. 12044(W) of 1998 directed the appellant to consider the case of the respondent afresh. Thereafter Central Government asked for a report from the State which was duly sent but all in vain. The Central Government rejected the claim of the respondent, which would show the Central Government acted with closed mind and negated the claim of the writ petitioner. In these circumstances, we applying the test laid down by the Supreme Court in Gurdail Singh's case (Supra) hold that respondent is entitled to receive his pension from the date of his application i.e. 18th August, 1981. In the light of the decision of Gurdail Singh (supra) and State of Maharashtra (supra) we hold that the writ petitioner is entitled to receive the pension since the case of the respondent was recommended by the State and therefore in our opinion, the judgments cited on behalf of the appellant cannot be help to them on the given facts. 21. HIS Lordship duly considered the impugned order passed by the Under Secretary to the Government of India and his Lordship found that the said order was passed on absolute mechanical exercise of his authority and rejecting the claim of the writ petitioner. 21. HIS Lordship duly considered the impugned order passed by the Under Secretary to the Government of India and his Lordship found that the said order was passed on absolute mechanical exercise of his authority and rejecting the claim of the writ petitioner. HIS Lordship held as follows :- "From a plain reading of the so called reasons 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 considerations in the first place. 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 freedom fighter. In rejecting the case of the petitioner he had ignored all the relevant records which were made available to him specially the recommendation of the State Government" 22. IT further appears from the fact which is duly taken into consideration by His Lordship that the case of the writ petitioner was considered by the State Authority and approved the case for sanction of "Samman Pension". The case of the petitioner was also certified by a well- known freedom fighter, namely Hirapada Maity by his certificate dated 28th August, 1981 who under went imprisonment for more than five years during the freedom struggle and granted certificate to the writ petitioner. The other certificate was given by the District Magistrate Midnapore stating that no relevant records relating, to the issue of warrants, proclamations and prosecutions during the period 19030-1946 were available. Therefore, the Court found that the Under Secretary mechanically dealt with the case of the writ petitioner and rejected the same. The Hon'ble Division Bench of this High Court in Union of India and Ors. v. Sri Sudhangshu Maity and Ors. reported in (2009)1 Cal LJ (Cal) 922, the facts and circumstances of the said case which are identical to the present case allowed the writ petition. In our considered opinion, the writ petitioner is entitled to pension in arrears since the date of his application i.e. 18th August 1981 within a period of 8 weeks from the date of communication of this order. In our considered opinion, the writ petitioner is entitled to pension in arrears since the date of his application i.e. 18th August 1981 within a period of 8 weeks from the date of communication of this order. We further find that the Hon'ble First Court has granted interest at the rate of 10% per annum from the date of his application till the date the pension in arrears are actually paid to the petitioner. 23. WE have noticed that the writ petitioner had to take trouble to come before this Court on many occasions and in the facts and circumstances of this case in our considered opinion when the petitioner is entitled to receive his legitimate pension without receiving the same had to spend years together before this Court for grant of his pension. 24. ACCORDINGLY we find that the interest as granted by the Hon'ble First Court also to be paid by the appellant and in our considered opinion the order so passed by His Lordship does not suffer from any irregularity or illegality. In our opinion the order is a well reasoned order. Accordingly for the reasons stated hereinabove we affirm the same and dismiss this appeal. Photostat certified copy of this order, if applied for, be supplied to the parties. Ray, J.- I agree.