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2022 DIGILAW 192 (CAL)

Kali Krishna Bera v. Union Of India

2022-02-09

KRISHNA RAO

body2022
JUDGMENT Krishna Rao, J. - The petitioners are the leagal heirs of the deceased Baneswar Bera and Debala Rani Bera. Initially the father of the petitioners had made a representation to the Govt of India for grant of Samman Pension under the Swantantra Sainik Samman Pensionn Scheme,1980 but vide letter dt. 27th March 1996 the Governmentn of India, Ministry of Home Affairs has rejected the calim of the father of the petitioners. The father of the petitioners expired on 8th December 2006 and after the death of the father, the mother of the petitioners had filed the instant writ petition challanging the order dt. 27th March 1996. 2. The instant writ petition was taken up for hearing on 25th January 2016 by this Court and the same was dismissed on the ground of delay. The mother of the petitioners had preferred an appeal against the order of dismissal being FMA No. 2067 of 2016 and the Hon'ble Division bench had set aside the order of the Ld. Single Judge and remanded the matter before this Court by passing following order : 'Affidavit in opposition be filed within a fortnight, reply, if any, be filed in a week thereafter and the matter to appear in the list after four weeks. A request is made by this Court to the Court below to dispose of the matter at the earliest as it involved the Freedom Fighters' Pension scheme and the appellant is a widow of a freedom fighter at present is aged about 82 years. If necessary, the State Government will consider the Village Crime Record as mentioned in the judgment of 1998, namely, Gokul Chandra Panja (supra) only in the interest of justice and for the ends of justice alone and none else. In MAT No. 500 of 2017, an order was passed on November 21, 2017 and the same also be considered by Court below. 3. During the pendency of the instant writ application the mother of the petitioners expired and after the death of mother, the petitioners have been substituted as legal heirs of deceased Baneswar Bera being the sons and daughters. 4. As per the order passed by the Hon'ble Division Bench the respondents no. 1,2 and 3 i.e the Ministry has filed their affidavit in opposition and the petitioners have filed their reply to the said affidavit but the State respondents have not filed their affidavit. 5. 4. As per the order passed by the Hon'ble Division Bench the respondents no. 1,2 and 3 i.e the Ministry has filed their affidavit in opposition and the petitioners have filed their reply to the said affidavit but the State respondents have not filed their affidavit. 5. The petitioners claim that their father was entitled to pension under the Freedom Fighter's Pension Scheme, now renamed as Swantantrata Sainik Samman Scheme. The fatther of the petitioners was a freedom Fighter who took part in the freedom and for his subersive activities, detention order was issued and to evade arrest the father of the petitioners went underground for the period from October 1942 to December 1943. 6. On 29.11.1981 the father of the petioners applied for the pension under the Scheme along with general non-avaibility of record certificate issued by the District Magistrate, Medinipur and personal knowledge certificate issued by one Shri Sushil Kumar Dhara, an eminent freedom fighter of the District Medinipur. 7. The District Magistrate, Midnipur had issued cerificate certifying that: 'This is to certify on the basis of reports received from the Officer-in-Chargeb of the concern Police Station that no relevant records relating to issue of warrants,proclomation and prosecutions during the period 1930 to 1946 are available.' 8. On 6th November 2011 Shri Sushil Kumar Dhara, Ex. MLA & Ex. Minister (W.B.), Ex. M.P. (Loksabha) & Freedom Figher had certifed that: 'I, hereby certify that Shri Baneswar Bera, S/o Late Sashi Bhusan Bera,resident of village Mirpur in P.S.Mahisalda and District Midinipur(West Bengal) is a bonafide freedom Fifgter who remained underground for fourteen months for the period from October 1942 to December 1943 as he was (iii) one for whose detention orders were issued but he evaded arrest.' 9. The Govt. Of India,Ministry of Home Affairs returned the said application to the father of the petitioners on the following reasons: (i). The documentry/supportive evidence sent by you along with your application does not prove your claimm of suffering. (ii). Your claim has not been recommended by the state Government. 10. Thereafter, vide letter dt. 29.1.1985/22.03.1985 the Deputy Secretary to the Government of West Bengal recommended the case of the father of the petitioners for grant of pension under the said Scheme on the basis of the Personal Knowledge Certificate issued by Shri Sushil Kumar Dhara. 11. (ii). Your claim has not been recommended by the state Government. 10. Thereafter, vide letter dt. 29.1.1985/22.03.1985 the Deputy Secretary to the Government of West Bengal recommended the case of the father of the petitioners for grant of pension under the said Scheme on the basis of the Personal Knowledge Certificate issued by Shri Sushil Kumar Dhara. 11. The Union of India did not considered the application submitted by the father of the petitioners and was kept pending. The father of the petitioners has moved a writ application which was disposed of in the month of February 1996 by directing the Union of India to take all steps for grant of freedom fighter pension to the petitioner in accordance with law. 12. The Union Government rejected the application of the father of the petitioners vide their letter dt. 27th March 1996 on the following grounds: '4. The State Govt. after verifying your claimed suffering from official records has forwarded a report vide their letter No. 350- HSP/16, 888/79 dated 8/25-2-96. From DIB, Midnapore which indicates that 'All available police records including Thana and DIS were duly consulted but nothing transpired about the past political activities of the above noted individual during the period as claimed in the petition or out during Pre- Independence Day'. 5. As per the instructions issued by the Govt. the cases based in PKCs could be considered only if the Govt. is satisfied that official records of the relevant time are not available and that the certificates issued are from eligible certifiers who belong to the administrative unit as that of the applicant and there was no complaint of indiscriminate certification against them. 6. The Govt. of India as directed by the Hon'ble Court have got the matter examined after taking into account all the facts of the case, provisions of the scheme, as well as your representation dated 26.8.86 and your advocate letter dated 27.8.94 and the State Govt. letter dated 8/25-2-96 and have found that you are ineligible for grant of freedom fighter pension under the provisions of the scheme for the following reasons:- (i) In the absence of non-availability of records certificate, to the satisfaction of the Govt. the secondary evidence like Personal Knowledge Certificate produced by you from Shri S.K. Dhara on the basis of which your case was recommended by the State Govt. the secondary evidence like Personal Knowledge Certificate produced by you from Shri S.K. Dhara on the basis of which your case was recommended by the State Govt. earlier cannot be considered as per provisions of the scheme for grant of pension. (ii) Official records are available and you have not been able to produce any evidence from such records in support of your claimed suffering of abscondence. (iii) The State Govt. has checked up the position from the available official records and have found that there is no information about you in the records about the past political activities during the period in which you have claimed your abscondence. 7. The Govt. of India is however still prepared to reconsider your case, if you can produce evidence from official records in support of your claimed suffering and a certificate from the State Govt. indicating that the record produce is genuine, relates to you and the suffering was in connection with the freedom fighter.' 13. On being aggrieved with the order of rejection dt. 27th March 1996 the mother of the petitioners after the death of the father of the petitioners has filed the instant writ application. 14. Mr. Manna, Ld. Advocate appearing for the petitioners submitted that the father of the petitoners was a freedom fighter who took part in the freedom movement and for his subvervisive activities detention order was issued and to evade arrest, father of the petitioners went underground for the period from October 1942 to December 1943. 15. Mr. Manna further contented that the case of the petitioners covered under clause 4(b) of the Explanation of the Scheme of 1981 which reads as follows: '4. Broken period of imprisonment will be totaled up for computing the qualifying period. (b) A person who remained underground for more than six months provided he was: 1. a proclaimed offender; or 2. one on whom an award for arrest/head was announced; or 3. one for whose detention order was issued but not served.' 16. Learned Counsel for the petitioners further contended that the claim of the father of the petitoners is covered under clause 9 (b) (ii) of the Scheme which reads as follows: '(b) REMAINED UNDERGROUND: (II) Certificates from veteran freedom fighters who had themselves undergone imprisonment for five years of more if the official record are not forthcoming due to their non-availability' 17. Learned counsel for the petitioners drew the attention of this Court to the certificate issued by Shri Sushil Kumar Dhara, Ex. M.L.A. and Ex. Minister (W.B.), Ex. M.P. (Lokn Sabha) and Freedom Fighter in which it is certified that: 'I, hereby certify that Shri Baneswar Bera, S/o Late Sashi Bhusan Bera,resident of village Mirpur in P.S.Mahisalda and District Midinipur (West Bengal) is a bonafide freedom fifgter who remained underground for fourteen months for the period from October 1942 to December 1943 as he was (iii)one for whose detention orders were issued but he evaded arrest.' 18. Ld. Counsel further stated that the District Magistrate of Medinipur District had also issued certificate certifiying that no relevant records relating to issue of warrants, proclemeations and prosecutuons during the period 1930 - 1946 are available. 19. Ld. Counsel for the petitioner relied upon the judgement passed by the coordinate bench of this Court reported in CAL LT 1999 (1) HC 241 (Gokul Chandra Panja -versus- Union of India & Ors) and submitted that if no records are available to show the name of the petitioner with regard to issuance of warrant of arrest and underground of the father of the petitioner, the certificate of personal knowledge granted by Shri Sushil Kumar Dhara ought to have been taken as proof of the claim of the father of the petitioners in terms of the Scheme. 20. Ld. Counsel for the petitioners further relied upon the judgements reported in 2010 (4) CHN (CAL) 4 (Gajendranath Manna -versus- State of West Bengal & Ors) and 2017(5) CHN (CAL) 464 (Lichu Bala Ghara - versus- Union of India & Ors) and submitted that in both the case the Hon'ble Court accepted the certificate issued by Rabindra Nath Giri and Sushil Kumar Dhara as secondary evidence and directed the Ministry to release pension in favour of the petitioner. 21. Ld. Counsel for the petitioners submitted that the Ministry of Home Affairs has not considered the certificate issued by Shri Sushil Kumar Dhara and without any reasons has rejected the claim of the father of the petitioners and the same is liable to be set aside. 22. Per contra, Ms. Chandreyi Alam (Gupta) counsel for the respondents no. 21. Ld. Counsel for the petitioners submitted that the Ministry of Home Affairs has not considered the certificate issued by Shri Sushil Kumar Dhara and without any reasons has rejected the claim of the father of the petitioners and the same is liable to be set aside. 22. Per contra, Ms. Chandreyi Alam (Gupta) counsel for the respondents no. 1, 2 and 3 submitted that the writ application filed by the petitioners is barred by limitation as the Ministry has rejected the application on 27th March 1996 and at that point of time the father of the petitioners was alive till the year 2006 but the father of the petitioners had accepted the said order and had never challanged the order of rejection. 23. Ld. Counsel for the respondent further submitted that the father of the petitioner expired in the year 2006 and the mother of the petitiner has filed the instant writ application in the year 2016 i.e. after the period of 10 years from the death of her husband and after the period of about 20 years from the order of rejection. 24. The Ld. Counsel further pointed out that the application submitted by the father of the petitioners on 29.11.1981 was incomplete and there is no signature of the deponent and there is no affirmation of the father of the petitioners. 25. The Ld. Counsel further contended that the Certificate issued by the District Magistrate is not addressed to any of the authority and the said certificate is without any date. 26. Ms. Chandreyi Alam (Gupta) appearing on behalf of the respondent no. 1 to 3 drew the attentention of clause 1.5 of the Policy Guidelines dt. 16.08.2014 which reads as folows: '1.5 Sanction of pension after the death of Freedom Fighter:- No pension shall be sanctioned in the name of freedom fighter after his/her death even if his/her matter was under examination. This also entails that no life time arrears or independent pension shall be sanctioned to his/her spouse/daughter after the death of the freedom fighter.' The counsel for the respondent relying upon the said provisions submitted that the father of the petitioners expired in the year 2006 and as such the petitioners are not entitled to get pension under the said scheme. 27. Ld. 27. Ld. Counsel for the respondent has further relied upon the Clause (4) of the Eligibility Conditions and Evidentiary Requirements for Swantantrata Sainik Samman Pension Scheme, 1980, which reads as follows :- '4. Acceptability of Secondary Evidence Secondary evidences can be considered only if supported by a valid Non-Availability of Records Certificate (NARC), which should be in the following format: 'All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available.' Relying upon the said caluse the counsel for the respondent submited that no certificate is submitted to the said effect. 28. Ld.Counsel for the respondents submitted that the Ministry has rightly rejected the claim of the father of the petitioners and requires no intereference. 29. This court considered the rival submissions of the parties, documents available on record and the judgment relied by the petitioners. 30. As regard the question of limitation raised by the Counsel for the respondents, this Court initially vide order dt. 25.01.2016 dismissed the writ application on the ground of unexplained delay and latches initially by the father of the petitioners and then on the part of the mother of the petitioners. Aggrieved with the order dt. 25.01.2016, the mother of the petitioners had preferred an appeal being FMA No. 2067 of 2016 and the said appeal was allowed by setting aside the order of dismissal and remanded the matter to this Court by granting liberty to the parties to exchange their affidavit. It is settled law that the Limitation Act does not apply in terms to writ petitions. However, as a Court of Equity, the Writ Court would be slow to entertain a writ petition, if there is undue delay or latches on the part of the petitioner. But there are circumstances where justice demands that the writ petition be entertained even though there has been substantial delay on the part of the petitioner in approaching the Court. In my opinion, this is such a case. The contribution of freedom fighters in making India a free Nation cannot be ignored. They sacrificed everything for the sake of the Nation for getting for their motherland and freedom for the future generation. In my opinion, this is such a case. The contribution of freedom fighters in making India a free Nation cannot be ignored. They sacrificed everything for the sake of the Nation for getting for their motherland and freedom for the future generation. In the present case no third party interest will be affected by the writ petition being entertained even after substantial delay. Hence, this Court is of the opinion the instant writ application cannot dismiss as the ground of limitation. 31. As regard the submission made by the Counsel for the Respondents no. 1, 2 & 3 that the application submitted by the father of the petitioners dt. 29.11.1981 was incomplete and there no signature of deponent. This Court finds that the application submitted by the father of the petitioners on 29.11.1981 was returned to the father of petitioners by the Government of India with the observation; (i) The documentary/supportive evidence sent by you along with your application does not prove your claim of suffering. (ii) Your claim has not been recommended by the State Government. After going through the said letter of Ministry it is found that the Ministry has not taken the ground that the applications submitted by the father of the petitioners was not having the signature of the father of the petitioners or the signature of deponent is blank. After receipt of the order of rejection, the Government of West Bengal vide their letter dt. 23.03.1985 had recommended the case of the petitioner on the basis of the Personal Knowledge Certificate issued by Shri Sushil Kumar Dhara, Ex. M.L.A & Ex- Minister (W.B), Ex M.P (Lok Sabha) & Freedom Fighter. After receipt of the recommendation of the State Government, the Government of India, Ministry of Home Affairs had rejected the application of the father of the petitioners on the ground of that the recommendation made by the State Government on the basis of the certificate of Shri Sushil Kumar Dhara but the certificate with regard to non-availability of records was not placed before the Government of India. In the said rejection order it is not mentioned that due to non-signature the father of the petitioners the application was rejected. Hence, the contention raised by the Counsel for the respondent decided against the respondents. 32. In the said rejection order it is not mentioned that due to non-signature the father of the petitioners the application was rejected. Hence, the contention raised by the Counsel for the respondent decided against the respondents. 32. The Counsel for the respondents has raised the contention that the certificate issued by the District Magistrate is not addressed to any authority and the said certificate is without any date. The certificate of the District Magistrate was not in question in the order of rejection passed by the Government of India dt. 27.03.1996. The Government of India had rejected the request of the petitioner only on the ground that no certificate with regard to non-availability of the records was produced before the Ministry. The respondents no. 1, 2 & 3 while filing the affidavit-in-opposition has also not challenged the certificate issued by the District Magistrate wherein the District Magistrate has certified that as per the reports received from the Officer In-charge of the concerned police station no relevant records relating to issue of warrants, proclamations and prosecutions during the period of 1930-1946 are available. As the Ministry has not challenged the said certificate of the District Magistrate and is not the subject matter of the impugned rejection order and thus the contention raised by the respondents is decided against the respondents. 33. The Counsel for the respondents no. 1, 2 & 3 has further relied upon the clause 1.5 of the policy guidelines dt. 16.08.2014 but the said guideline is not applicable in the case of the petitioners as since during the life time i.e. since the year 1981 the father of the petitioners is claiming the pension under the said scheme. The respondents one or the other reasons rejected the claim of the father of the petitioners and the rejection order passed by the Ministry is under challenge in the instant writ application which was passed much prior to the scheme dt. 16.08.2014 and thus the said scheme of 2014 is not applicable in the case of the petitioners. 34. The contention raised by the Counsel for the respondents that the secondary evidences can be considered only if supported by valid non- availability of records certificate which should be in the format as mentioned in clause 4 of the scheme of 1980. 16.08.2014 and thus the said scheme of 2014 is not applicable in the case of the petitioners. 34. The contention raised by the Counsel for the respondents that the secondary evidences can be considered only if supported by valid non- availability of records certificate which should be in the format as mentioned in clause 4 of the scheme of 1980. The contention raised by the respondents has already decided by the Hon'ble Division Bench of this Court in the case of Lichu Bala Ghara vs. Union of India & Ors. reported in 2017 (5) CHN (CAL) 464 (supra) wherein the Hon'ble Court has held that it will be quite impossible for the petitioner or anybody to produce official records pertaining to freedom fighters who were the residence of village Polanda for the relevant period. If that be so, only the other option would be to act on the basis of personal certificate issued by the eligible certifiers. 35. In the instant case, admittedly there is no official record available with the petitioner to prove that the father of the petitioners of the freedom fighter of village Mirpur but Shri Sushil Kumar Guha had provided Personal Knowledge Certificate to the father of the petitioners certifying that the father of the petitioners was bonafide freedom fighter who remain underground for 14 months for the period from 0ctber, 1942 to December, 1943 as he was one for whose detention order were issued but he evaded arrest. Shir Sushil Kumar Guha was also a freedom fighter and had suffered actual imprisonment for more than 5 years during the freedom struggle and the period of imprisonment was also mentioned in the said certificate which clearly reveals that he was suffered total imprisonment of 5 years 7 months. 36. Although the Personal Knowledge Certificate may be secondary evidence in the absence of primary evidence, the same has to be accepted in terms of the scheme wherein it is categorically mentioned that certificate from veteran freedom fighters who had themselves undergone imprisonment for 5 years or more if official records are not forthcoming due to their non- availability. 37. The Division Benches of this Hon'ble Court have also held that if the secondary evidence i.e. Personal Knowledge Certificate is provided there is no necessity for production of documentary evidence of non-availability of records during the said period. 38. In the instant case, Shri Sushil Kr. 37. The Division Benches of this Hon'ble Court have also held that if the secondary evidence i.e. Personal Knowledge Certificate is provided there is no necessity for production of documentary evidence of non-availability of records during the said period. 38. In the instant case, Shri Sushil Kr. Dhara had provided his Personal Knowledge Certificate and on the basis of the said Personal Knowledge Certificate, the Government of West Bengal had recommended the case of the father of the petitioners for grant of pension under the scheme but the Government of India, Ministry of Home Affairs have not considered the certificate of Shri Sushil Kr. Guha and rejected the claim of the father of the petitioners and thus this Court held that the order dt. 27.03.1996 issued by the under Secretary to the Government of India, Ministry of Home Affairs is bad in law and the same is liable to be set aside and accordingly, set aside. 39. This Court is satisfied that the certificate issued by Shri Sushil Kr. Guha would make Baneswar Bera eligible for being granted pension under the said scheme. None has disputed the authenticity of the certificate issued by Shri Sushil Kr. Dhara in favour of Baneswar Bera. This is one of the modes of approving the claim of being a freedom fighter envisaged by the said scheme. 40. Accordingly, the respondent authorities i.e. the Union Government is directed to pay the petitioners, freedom fighter's pension under the liberalized 'Swantantrata Sainik Samman Pension Scheme' with effect from the date when the father of the petitioners made an application for grant of pension within 3 (three) months from the date of communication of the copy of this order. 41. WPA No. 598 (w) of 2016 is allowed. There will be no order as to costs. Parties shall be entitled to act on the basis of a server copy of the Judgment and Order placed on the official website of the Court. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.