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2019 DIGILAW 226 (JK)

Nazir Ahmad Gadda v. Union of India

2019-04-15

DHIRAJ SINGH THAKUR, RASHID ALI DAR

body2019
Judgment 1. The genesis of the present controversy lies in the claim of the petitioner to a pension under the Swatantrata Sainik Samman Pension Scheme, 1980. The petitioner claims to have participated in some movement in Kashmir as an underground worker. The Deputy Secretary to the Government, State of J&K, vide its communication dated 2nd July 2018 recommended the case of the petitioner for grant of such a pension. However, the case of the petitioner was rejected vide order dated 06.04.2018. Paragraph No. 3 and 4 of the order impugned which are the basis for rejection of petitioner’s case are reproduced hereunder:— “3. It is further stated that as per direction of Hon’ble Court, your representation enclosed with the writ petition OWP No. 298/2018 has been examined. Discrepancies as already mentioned in this Ministry’s letter dated 19/11/2015 have been found in your representation enclosed with writ petition and no new required document as per policy guidelines for SSS Yojana has been submitted by you in support of your claim for suffering undergone by you during the freedom struggle of the country. 4. In view of the above, since you do not meet the eligibility criteria and evidentiary requirements of Swatantrata Sainik Samman Yojana, it has not been found possible to accede to your claim/request.” 2. Since the case of the petitioner was rejected, the petitioner was forced to file a writ petition which too was dismissed by the Writ Court vide order and judgment dated 10.10.2018. Hence the present Letters Patent Appeal. 3. We have heard the learned counsel for the parties. 4. On a perusal of the order of rejection, we feel that the same is a non-speaking order and does not give any reasons as to why the petitioner’s case is not covered for grant of the said pension. The order of rejection is vague. It does not even deal with the recommendations made in favour of the appellant by the State Government. It also does not in so many words hold the petitioner ineligible for the pension in question on the premise that the Quit Kashmir Movement was not one of the movements which would make the petitioner eligible for such a pension. It does not even deal with the recommendations made in favour of the appellant by the State Government. It also does not in so many words hold the petitioner ineligible for the pension in question on the premise that the Quit Kashmir Movement was not one of the movements which would make the petitioner eligible for such a pension. Counsel for the respondents however took pains to take us through the detailed response filed by the Union of India with a view to justify the rejection of the appellant’s claim for grant of pension. However, it is no longer res-integra that an order which is impugned in the petition cannot be improved upon or supplemented with reasons or grounds. Reference in this regard can be made to Apex Court judgment in the case of Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. reported in AIR 1978 SC 851 . What was stated in paragraph No. 8 is reproduced hereunder:— “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” 5. The judgment and order impugned however proceeds on the premise that it was not open to the writ court to conduct an investigation as to whether the benefit under the pension scheme of 1980 could be extended and bestowed upon the petitioner, notwithstanding a recommendation having been made in that regard by the Government. The judgment and order impugned however proceeds on the premise that it was not open to the writ court to conduct an investigation as to whether the benefit under the pension scheme of 1980 could be extended and bestowed upon the petitioner, notwithstanding a recommendation having been made in that regard by the Government. We, however, do not agree with such a finding which has been recorded inasmuch as nothing could prevent the Court to determine as to whether there was at all any basis for rejecting the case of the petitioner for grant of such a relief. 6. The scope of writ jurisdiction under Article 226 of the Constitution of India is no longer res integra. In Appropriate Authority and Anr. vs. Sudha Patil (Smt) and Anr. (1998) 8 SCC 237 , the Apex Court in para 6 held thus:— “So far as the first question is concerned, the parameters for exercise of supervisory jurisdiction of the High Court under Article 226 of the Constitution, white examining the decision of an inferior tribunal, has no connection with the question whether an appeal is provided for against the said order of the tribunal under the statute in question. As has been held in several decisions of this Court, the power being supervisory in nature in exercise of such power, a finding/conclusion of an inferior tribunal can be interfered with if the High Court comes to the conclusion that in arriving at the conclusion the tribunal has failed to consider some relevant materials or has considered some extraneous and irrelevant materials or that the finding is based on no evidence or the finding is such that no reasonable man can come to such a conclusion on the basis of which the finding has been arrived at. This being the settled position, it is difficult to sustain a plea that when the order of the tribunal does not provide for an appeal, the High Court can get its Jurisdiction enlarged and exercise an appellate power while examining the correctness of the conclusion arrived at by such tribunal……..” 7. Similar view has been taken by the Apex Court in Union of India and Ors. vs. Shatabadi Trading and Investment Pvt. Ltd. and Ors., (2001) 6 SCC 748 . Similar view has been taken by the Apex Court in Union of India and Ors. vs. Shatabadi Trading and Investment Pvt. Ltd. and Ors., (2001) 6 SCC 748 . The Apex Court in para 5 in the said judgment held thus:— “……..It is trite to say that the proceedings arising under Article 226 of the Constitution are in the nature of judicial review and such review could be only in respect of the process of decision and not the decision itself…….” 8. Again in State of Andhra Pradesh vs. P. V. Hanumantha Rao, (Dead) through L. Rs and anr, (2003) 10 SCC 121 , the Apex Court in para 30 held thus:— “30. True it is that remedy of writ petition available in the High Court is not against the ‘decision’ of the subordinate court, tribunal or authority but it is against the ‘decision making process’. In the ‘decision making process’, if the court tribunal or authority deciding the case, has ignored , vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction”, the constitutional power of the High Court under Articles 26 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining”. 9. In para 33 of the judgment in the Hanumantha Rao’s case, the Apex Court further held thus:— “33. No doubt, it was held that neither in exercise of power of writ under Article 226 nor in supervisory jurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge in the re- appreciation or evaluation of evidence. The power of the High Court in writ jurisdiction to interfere where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied has been recognised even in the case of Swarn Singh and Anr. (supra) on which strong reliance was placed on behalf of the State. The relevant observations are:— In regard to a finding of fact recorded by an inferior tribunal, a writ of Certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law.” 10. Testing the facts of the present case on the touchstone of the judgments supra, we feel that the order impugned is unsustainable in law. The order of rejection passed by the authorities was a non-speaking order and did not at all take into consideration the relevant factors which were necessary for considering the case of the petitioner for granting relief. 11. Be that as it is, the appeal is allowed. The impugned judgment and order dated 10.10.2018 is set-aside. The order of rejection dated 06.04.2018 is also quashed. The respondents shall reconsider the entire issue once again and pass a detailed speaking order and return a specific finding as to whether the participation of the petitioner in the Quit Kashmir Movement was one which would make the petitioner eligible for grant of such a pension. Respondents while considering the issue shall also consider whether the Praja Mandal Movement in the erstwhile princely States 1939-1949 would cover the case of the petitioner also. Let a decision be taken within a period of two months. 12. With the aforesaid directions, the appeal is allowed.