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2012 DIGILAW 184 (CAL)

UNION OF INDIA v. Pratima Rani Manna

2012-03-07

MRINAL KANTI CHAUDHURI, PINAKI CHANDRA GHOSE

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Judgment : Dr. Mrinal Kanti Chaudhuri, J. This appeal has been preferred by the Union of India against the judgment and order dated 23rd July, 2010 passed by Hon’ble Single Judge in an application under Article 226 of the Constitution of India being W.P. No. 1023 of 1998 filed by Smt. Pratima Rani Manna. The writ petitioner Pratima Rani Manna in an application under Article 226 of the Constitution of India before Hon’ble Single Judge stated that her husband late Chunilal Manna suffered imprisonment for a period of not less than six months during freedom movement. He applied for granting freedom fighter pension as per Swatantrata Sainik Samman Pension Scheme, 1980 enclosing all documents. He was sanctioned provisional pension of Rs.200/- vide memo no. 33/1/Gen-1/74-FFEZ dated 26.10.1974. He used to draw pension till the date of notice of suspension dated 5th October, 1982 issued by the Secretary, Government of India on the ground that he was not eligible for the grant of pension under the scheme for the reason that the State Government has reported that his name does not figure in the thana record and sub-jail which could indicate that he actually suffered imprisonment for a period of not less than six months. According to the petitioner, her husband was arrested on 12.02.1943 in ‘Quit India’ Movement, 1942 and he was released on 30th September, 1943 from Tamluk sub-jail. Thereafter, her husband wrote to officer-in-charge, Mahishadal police station who wrote the statement on the application with reference to VCNB Vol.-VIII, Block-II, Page No. 187 of Dharampur P.S. Mahishadal. Her husband thereafter submitted an application before the Assistant Secretary, Government of West Bengal, P.S.P. Complaint Cell enclosing the documents with thana record along with the certificate of a eminent freedom fighter Prafulla Kumar Das for granting the freedom fighters’ pension under S.S.S. Pension Scheme, 1980. The provisional pension of her husband was suspended by the concerned authority only on the ground that no thana record was available regarding imprisonment. Petitioner’s case is that suspension of pension was illegal. All the records and documents are in favour of her husband for granting pension. Her husband expired on 06.07.1996. The petitioner has, therefore, made representation before the concerned authority to consider her case by verifying the documents for the purpose of granting pension, but no action was taken by the concerned authority. All the records and documents are in favour of her husband for granting pension. Her husband expired on 06.07.1996. The petitioner has, therefore, made representation before the concerned authority to consider her case by verifying the documents for the purpose of granting pension, but no action was taken by the concerned authority. The petitioner as widow of freedom fighter is entitled to get freedom fighter’s pension which includes family pension. This writ petition was allowed by the Hon’ble Single Judge vide judgment and order dated 23.07.2010 by setting aside the order by the Under Secretary which ignored the most relevant provision in sub para b(I)(II) of paragraph 9 of S.S.S. Pension Scheme, 1980 published on 15th August, 1981. Hon’ble Single Judge ordered the respondent to grant freedom fighters’ pension to the writ petitioner namely widow of the deceased freedom fighter under provision of S.S.S. Pension Scheme from 5th October, 1987 i.e. till the date from which the provisional pension was suspended. Learned Single Judge ordered respondent to give arrear pension from the above date within a period of two weeks from the date of communication of the order i.e. from 5th October, 1987 till the date of payment of arrear pension to the petitioner. Learned Trial Judge also awarded the payment of cost by the respondent Rs.10,000/- within a period of two weeks from the date of communication of this order. Being aggrieved by and dissatisfied with the judgement and order passed by Hon’ble Single Judge the appellant has preferred this appeal. This appeal has been contested by the respondent. We have heard the learned counsel of both sides and perused the materials and considered the same. There is no dispute that the respondent’s husband late Chunial Manna was provisionally granted freedom fighters’ pension of Rs.200/- per month for the Ministry’s letter No. 33/1/Gen-1/74-FFEZ dated 26.10.1974. From Annexure ‘VIII’, it appears that Under Secretary to the Government of India, Ministry of Home Affairs vide memo No.33/552/72-EZ. I(48) suspended the provisional pension on the ground that the State Government reported that his name does not figure in the thana record and the sub-jail which could indicate that he actually suffered imprisonment for a period of not less than six months. I(48) suspended the provisional pension on the ground that the State Government reported that his name does not figure in the thana record and the sub-jail which could indicate that he actually suffered imprisonment for a period of not less than six months. Under Secretary to the Government of India, Ministry of Home Affairs further issued notice to show cause as to why his provisional pension granted to him shall not be cancelled and Government shall not take appropriate step for recovering the same (Annexure ‘VIII’ Page 18 of Paper Book). The husband of the petitioner did not submit reply of show cause. Subsequently on 12.12.1992, the husband of the petitioner submitted a representation enclosing all documents in order that the suspension of pension may be withdrawn. He also mentioned in his representation to the Assistant Secretary, Government of West Bengal, Home Affairs Department, P.S.P. Complaint Cell that the documentary evidence like jail certificate and certificates from co-prisoners have been submitted to prove his eligibility for getting his pension. It is submitted by the appellant that no reply of show cause was given by him but after 10 years of suspension of pension he filed representation to the Government of West Bengal enclosing the document like jail certificate and certificates from co-prisoners to prove his eligibility. It is further submitted that the order of suspension was never challenged by the petitioner’s husband. It is further submitted by the learned counsel on behalf of the appellant/Union of India that the document as proof of imprisonment is not in proper form as no ‘Non-availability of Record Certificate’ was submitted. Only Personal Knowledge Certificate (PKC) was submitted but it is not applicable to him in view of the fact that the words “along with” was deleted. It is further submitted that the petitioner’s husband was entitled to get pension under the scheme of 1972 which covers certificate granted by a sitting M.P. or M.L.A. or from an ex-M.P. or M.L.A. specifying jail period. But as per S.S.S. Scheme, 1980, the petitioner’s husband was not entitled to any pension under the said scheme. It is further submitted that the petitioner’s husband was entitled to get pension under the scheme of 1972 which covers certificate granted by a sitting M.P. or M.L.A. or from an ex-M.P. or M.L.A. specifying jail period. But as per S.S.S. Scheme, 1980, the petitioner’s husband was not entitled to any pension under the said scheme. It is further submitted since petitioner’s husband stated that he was imprisoned in freedom movement for a period of not less than six months, his case is covered under sub-para (a) of paragraph 9 of the Scheme, 1980 because the said provision is applicable for ‘imprisonment/detention’ and not under subparagraph b(I) and (II) of paragraph 9 which was applicable for ‘remained underground’. Learned advocate for appellant has referred decision reported in AIR 2007 SC 3014 (Union of India vs. M.S. Md. Rawther) and AIR 1997 SC 2069 (Union of India vs. R.V Swamy). Both the decisions hold that Court cannot assume the role of investigation of facts. It is the duty of the State and the Union of India to consider whether it is a case worth granting pension as per the S.S.S. Pension Scheme, 1980. The Court has only judicial power to review the executive order on Wednesbury’s principle, but it cannot arrogate to itself the power of executive. The Court has only judicial power to review. The Court can only set aside and remit the matter to the executive for a fresh decision. The Court cannot assume the power of Union of India. The Court must exercise judicial restraint in such matter. But decision reported in AIR 1997 SC 2069 also reveals that High Court is not justified in directing the grant of freedom fighters’ pension where Government considered the evidence. It has been held in the said decision that it is for the Government of India to reconsider the matter and to lay down appropriate clear guidelines for the so-called freedom fighters who issue certificates to persons who come forward for freedom fighters’ pension. Therefore, learned advocate for the appellant has submitted that the order passed by learned single Judge dated 23rd July, 2010 suffers from illegality and liable to be set aside. On the other hand, learned advocate for the respondent submitted along with notes of argument that the husband of respondent collected documents from Mahishadal Police Station. Therefore, learned advocate for the appellant has submitted that the order passed by learned single Judge dated 23rd July, 2010 suffers from illegality and liable to be set aside. On the other hand, learned advocate for the respondent submitted along with notes of argument that the husband of respondent collected documents from Mahishadal Police Station. Officer-in-charge of Mahishadal Police Station, after verifying the jail record furnished information on the application of her husband on 30.10.1982. The information so furnished reveals that late Chunilal Manna was arrested on 12.02.1943 in the August Movement of 1942 and released on 30.09.1943 from Tamluk sub-jail. He attended police station every three months and this is noted in VCNB Vol-VIII, Block-II, Page No.187 of Dharampur P.S. Mahishadal. The said information is corroborated by ‘personal knowledge certificate’ of an eminent freedom fighter Prafulla Kumar Das. It is further submitted that the husband of petitioner submitted reply of show cause letter on 21.02.1993 although the show cause notice was issued vide memo No. 33/5552/72-EZ.I (48) on 5th October, 1982. It further submitted that the Government of West Bengal (P.S.P. Complaint Cell) vide letter dated 8th/10th April, 1987 informed that the case is not recommendable as sufferings during the period of freedom movement have not been substantiated by furnishing documents by late Chunilal Manna. But provisional pension was suspended on 05.10.1982. It is submitted further that the provisional pension was not cancelled, it was only suspended on the ground of non-furnishing jail record and relevant certificate. There was no document to show that his provisional pension was cancelled before or after the expiry of late Chunilal Manna who died during 1996. It is also submitted that the facts and decision of law in Union Of India vs. Md. Rawther reported in AIR 2007 SC 3014 is not applicable in view of the fact that it is not a case of fresh sanction of pension but it is case of suspension of pension. Learned Trial Judge is, therefore, justified in passing the judgment and order and the appeal is, therefore, liable to be dismissed. Rawther reported in AIR 2007 SC 3014 is not applicable in view of the fact that it is not a case of fresh sanction of pension but it is case of suspension of pension. Learned Trial Judge is, therefore, justified in passing the judgment and order and the appeal is, therefore, liable to be dismissed. After considering the points raised by both the parties and having considered the documents and facts annexed in the paper book, it is quite apparent that husband of the writ petitioner late Chunilal Manna was granted provisional pension under Freedom Fighter Pension Scheme, 1972 which was subsequently renamed as Swatantrata Sainik Samman Pension Scheme, 1980.After coming into force of the S.S.S. Pension Scheme, 1980, the provisional pension of petitioner’s husband was suspended during 1982. It was issued by Under Secretary to the Government of India, Ministry of Home Affairs under memo No. 33/5552/72-EZ.I(48). It has been stated therein that the State Government reported that the name of Chunilal Manna did not figure in the thana record and the sub-jail which could indicate that he was actually suffered imprisonment for a period of not less than six months. From Annexure ‘B’ Page 23 of Paper Book it appears that Chunilal Manna submitted an application to the Officer-in-charge, Mahishadal P.S. on 30.10.1982 praying for furnishing thana record on the ground that he participated in Quit India Movement in 1942 and was arrested in 1943 and suffered imprisonment. From the endorsement of the Officer-in-charge, Mahishadal P.S. dated 30.12.1982 it appears that Chunilal Manna was arrested on 12.02.1943 in connection with August Movement of 1942 and was released on 30.09.1943 from Tamluk Sub-jail. He attended police station every three months. It is noted in the VCNB Vol-VIII, Block-II, Page No. 187 of Dharampur, P.S. Mahishadal. This information noted in VCNB Vol-VIII, Block-II, Page No. 187 of Dharampur has not been denied or disputed by the appellant/Union of India. From ‘S.S.S. Pension Scheme, 1980’ formerly known as ‘Freedom fighters’ Pension Scheme, 1972’ it appears that for the purpose of granting of Samman Pension under the scheme, a freedom fighter is a person who had suffered a minimum imprisonment in the mainland jail before independence. From the said scheme it further appears that in order to claim the said pension the applicant has to furnish the document namely certificate from the jail authorities, District Magistrate or the State Government. From the said scheme it further appears that in order to claim the said pension the applicant has to furnish the document namely certificate from the jail authorities, District Magistrate or the State Government. In case of non-availability of such certificate, co-prisoners’ certificate or from a sitting M.P. or M.L.A. or an ex-M.P. or M.L.A. specifying the jail period is sufficient. In the present case, Chunilal Manna has reported that he suffered imprisonment from 12.02.1943 to 30.09.1943 and he furnished the information noted in VCNB Vol-VIII, Block-II, Page No. 187 of Dharampur P.S. Mahishadal through Officer-in-charge, P.S. Mahishadal. Officer-in-charge, P.S. Mahishadal submitted the endorsement dated 30.10.1982 to the effect that he was arrested on 12.02.1943 in connection with August Movement, 1942 and released on 30.09.1943 from Tamluk sub-jail. He attended police station every three months and this is noted in VCNB Page 147. It is not a case that he remained underground so that his case may come within sub-para (b) of Paragraph 9 of the scheme as argued by the learned advocate for the appellant/ Union of India. This information furnished by Officer-in-charge, P.S. Mahishadal noted in VCNB is sufficient to hold that he suffered imprisonment of not less than six months. In addition, he filed the certificate of freedom fighter Prafulla Kumar Das (Page 28 of Paper Book). Certificate reveals that Chunilal Manna, son of late Abinash Manna, resident of Vill. Dharampur, P.S. Mahishadal, Dist. Midnapore is a bona fide freedom fighter in the Quit India Movement and was lodged in the jail during the period from February, 1943 to September, 1943. In the instant case, the petitioner relies not solely upon the certificate of eminent freedom fighter but also on the thana/jail record noted in VCNB Vol. VIII as furnished by the Officer-in-charge, P.S. Mahishadal on 30.10.1982. It may be noted in this connection that the provisional pension was not cancelled by the appellant. Record noted in VCNB as furnished by the Officer-in-charge, P.S. Mahishadal is not at all denied or disputed. The mere letter of the Assistant Secretary, Government of West Bengal dated 8th/10th April, 1987 (Page 29 of Paper Book) to the effect “have not been substantiated by the document by you” does not at all justify suspension of pension. Learned Trial Court is, therefore, justified in setting aside the order passed by Under Secretary to the Government of India, Ministry of Home Affairs. Learned Trial Court is, therefore, justified in setting aside the order passed by Under Secretary to the Government of India, Ministry of Home Affairs. The decision of this Court reported in 2009(1) CLJ (Cal) 922 (Union of India and Ors. vs. Sri Sudhangshu Maity and Ors.) may also be relied upon. Decision of law furnished from the side of the appellant reported in AIR 2007 SC 3014 (Union of India vs. M.S. Md. Rawther) and AIR 1997 SC 2069 (Union of India vs.R. V. Swamy) are not applicable in the present facts and circumstances in view of the fact that the petitioner’s husband used to get provisional pension as per Freedom Fighters’ Pension Scheme of 1972 which was renamed as S.SS. Pension Scheme, 1980. His pension was suspended on the ground of non-availability of record showing he was suffering imprisonment for the required period. However, petitioner’s husband subsequently furnished information as stated above. Therefore, this case does not fall within the purview with the aforesaid decisions of law cited from the end of appellant. The Hon’ble Single Judge is justified in holding that the petitioner is entitled to get a pension in terms of the Government circular and was also justified in directing the appellant in the matter of granting pension including the arrear with interest and cost. We see no reason to interfere with the order passed by Hon’ble Single Judge. The appeal as well as application is dismissed. The appellant is, therefore, directed to comply the order of learned Single Judge within the period of two months from the date of communication of this order. Photostat certified copy of the judgement and order, if applied for, be made over to the parties on usual terms. (Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Pinaki Chandra Ghose, J.)