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2015 DIGILAW 508 (CAL)

Bikash Chandra Khanra v. Union of India

2015-06-18

TAPASH MOOKHERJEE, TAPEN SEN

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JUDGMENT : This Appeal arises out of a judgment dated 20th July, 2011 passed in W. P. No. 11645 (W) of 2011 whereby and where under the Writ Petition, in which the Appellant had questioned the decision of the Central Government passed on 11.3.1997, was rejected and her request for grant of pension to her deceased husband treating him to be a freedom fighter was not acceded to. 2. Let it be recorded that the Writ Petition being W.P. No. 11645 (W) of 2011 was filed by the widow of Sri Sudhir Chandra Khanra, namely, Smt. Lakshmi Bala Khanra and this Appeal was also filed by her. It is stated that, however, Smt. Lakshmi Bala Khanra subsequently died where after these Appellants were allowed to be brought on record vide C.A.N. 10334 of 2013, which came to be allowed by the learned Registrar (Administration) In-charge pursuant to the order passed by a Division Bench on 11.2.2014. 3. In the Writ Petition being W. P. No. 11645 (W) of 2011, the Petitioner, Smt. Lakshmi Bala Khanra prayed, inter alia, for quashing of an Order dated 17.05.2011 passed by the Assistant Secretary, Government of West Bengal, Home (Poll-PSP) Department and also made a prayer for issuance of a Writ of Mandamus directing the Respondents to release freedom fighter's pension to her. 4. Before we proceed, we must clarify that the aforesaid Order, referred to by the Writ Petitioner, being the Order dated 17.5.2011 is actually a communication of the same day issued under Memo No. 855-HPS/41451 purporting to have been issued under the seal and signature of the Assistant Secretary of the Government of West Bengal, Department of Home (Poll-PSP) and addressed to this Appellant being Bikash Chandra Khanra. By the said letter, the decision already taken on 11.3.1997 was enclosed therewith with an information that the case of Sudhir Chandra Khanra stood rejected. In other words, a decision of 1997 was communicated to this Appellant on 17.5.2011 and, therefore, the ground taken by the Respondent/Union of India as well as the State to the effect that the Writ Petition ought to have been dismissed on the ground of delay alone, is not acceptable to us. 5. In other words, a decision of 1997 was communicated to this Appellant on 17.5.2011 and, therefore, the ground taken by the Respondent/Union of India as well as the State to the effect that the Writ Petition ought to have been dismissed on the ground of delay alone, is not acceptable to us. 5. In the Writ Petition, the Petitioner stated that she was widow of Sudhir Chandra Khanra, who was a freedom fighter, a poor man, who had more or less 1 acre of land and that he had participated in the freedom movement in the Tamluk Sub-Division in the District of Medinipur under the leadership of Sri Satish Chandra Samanta, Ajoy Kumar Mukhopadhyay and Sri Sushil Kumar Dhara. 6. The Petitioner stated that the Central Government had framed a Scheme for freedom fighters known as "Freedom Fighters' Pension Scheme, 1972" making it effective from 15.08.1972 for grant of pension to living freedom fighters and their families. If they were no more alive, then to the families of martyrs and the minimum pension was initially fixed at Rs. 200/- per month. In the said scheme, "family" was defined as mother, father, widower, widow, unmarried daughter and sons in exceptional cases where they were unable to establish themselves in life on account of imprisonment/martyrdom of the freedom fighters. 7. Here, at this stage, Mr. Ujjal Kumar Ray, learned Counsel for the Union of India, stated that so far as this Appellant is concerned, he has been living not as a destitute, but he is a person, who has means of livelihood and, therefore, he cannot be favoured in any case. 8. We have considered such a submission, but we must point out that this Appeal is a continuation of the dispute raised by Smt. Khanra, who was the widow and if the benefit of the Scheme could be made applicable to her, then we see no reason as to why the benefit of the said Scheme cannot be made applicable upon her son. 9. It was further stated in the Writ Petition that the said Scheme of 1972 was modified on 15th January, 1981 and the freedom fighters having income upto Rs. 5,000/- were entitled to receive pension upto Rs. 200/- per month and the Scheme was renamed as the "Swatantrata Sainik Samman Pension Scheme, 1980." 10. 9. It was further stated in the Writ Petition that the said Scheme of 1972 was modified on 15th January, 1981 and the freedom fighters having income upto Rs. 5,000/- were entitled to receive pension upto Rs. 200/- per month and the Scheme was renamed as the "Swatantrata Sainik Samman Pension Scheme, 1980." 10. According to the Petitioner, her husband, Sudhir Chandra Khanra was a freedom fighter having participated in the Freedom Movement/Quit India Movement in the undivided Bengal in the Tamluk Sub-Division in the District of Medinipur in the year 1942. The police had started a case not only against him, but also against many others and her husband had evaded arrest and remained underground for more than a year. 11. Upon introduction of the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to for the sake of brevity as the said Scheme), Late Sudhir Chandra Khanra filed an application in the prescribed form before the Central Government for grant of pension along with a Certificate of one Rabindra Nath Giri, a freedom fighter, who had also participated in the freedom movement and who had been sentenced to jail for more than five years. That Certificate has been brought on record in this Appeal at running page 46. It certifies, inter alia, that Sudhir Chandra Khanra, Son of Late Birnarayan Khanra of Village - Bartalla, P.O. Tajpur, P.S. Nandigram, District Midnapore, West Bengal was a bona fide Freedom Fighter, who had remained underground for 1 year 9 months and 23 days from 2.10.1942 to 25.7.1944. The said Certificate dated 12.8.1981 recommended and stated that Sri Khanra deserved Swatantrata Sainik Samman Pension as well as a Tamrapatra. 12. In a judgment of another Hon'ble Division Bench presided over by the then Chief Justice S. S. Nijjar in the case of Union of India & Ors. v. Sri Sudhangshu Maity & Ors. reported in 2009 (1) CLJ (Cal) 922, the grant of certificates by Rabindra Nath Giri was recognised and in paragraph 3 infra, it was observed that Rabindra Nath Giri was eligible to grant a Personal Certificate according to a communication dated 18th November, 1989 of the Deputy Secretary, Government of West Bengal, Home (Poll-PSP) Department and addressed to the Secretary of the Government of India, Ministry of Home Affairs, Freedom Fighters' Division. In paragraph 35 of the same judgment, it has been held that the Personal Knowledge Certificate granted by Sri Rabindra Nath Giri must be taken as proof of the Petitioner's claims in terms of the Pension Scheme. 13. It appears that the claims were rejected at least twice where after Smt. Khanra filed W. P. No. 11645 (W) of 2011 after the aforementioned information was conveyed to her son vide letter dated 17.5.2011. In the background of the aforementioned facts and circumstances, if the husband of Smt. Khanra, namely, Late Sudhir Chandra Khanra had applied with Giri's certificate, then that certificate as per the judgement of the Division Bench, as referred to above, should have been taken as proof in support of his claims for Pension Scheme and, therefore, this Court is not able to approve the observations of the learned Trial Judge to the effect that there was nothing to show that the Petitioner had supported any material with regard to claims. 14. Considering the aforementioned background as narrated above, we do not see any justification in depriving the Appellant/Petitioner of the claims to Family Pension. 15. We, accordingly, allow this Appeal and set aside the order of the learned Trial Judge. There shall be no order as to costs. 16. The concerned authorities are now directed to take immediate steps in the light of the observations in this judgment. 17. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.