Calcutta High Court (Appellete Side)
Salil Kumar Pal vs Union Of India & Ors on 4 July, 2013
Author: I. P. Mukerji
Bench: I. P. Mukerji
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04.7.13
W. P. 11071 (W) of 2011
Salil Kumar Pal ... Petitioner
-vs-
Union of India & Ors. ... Respondents
Mr. Arjun Ray Mukherjee Mr. Joydeep Acharya ... For the Petitioner Mr. Amal Kumar Mukhopadhyay ... For the Respondents No. 1 and 2 The writ petitioner has been knocking at the doors of the government and of this Court, for over 20 years. He claims to have been a freedom fighter suffering internment during the period from October, 1942 to June, 1943. Hence, he claims pension on account of the Swatantrata Sainik Samman Pension Scheme, 1980 formerly known as "Freedom Fighters' Pension Scheme, 1972". This scheme is dated 15th August, 1981.
There are eligibility criteria in the scheme. They are enumerated in paragraph 9 thereof. The part relating to internment or externment is paragraph 9 sub-part (c) and the same is as follows:-
"(i) Order of internment or externment or any other corroboratory documentary evidence.
(ii) Certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. (Annexure II in the application)."2
As long ago, on 16th February, 1990 the Government of West Bengal, in terms of the scheme, approved and recommended the case of the writ petitioner for payment of pension. The recommendation was made on the certificate of Sri Jagannath Majumdar, a freedom fighter, which was admissible in terms of the aforesaid scheme.
Two writ applications were preferred in this Court, the first W. P. 20660 (W) of 2009 where on 8th March, 2010 Soumitra Pal, J. asked the Central Government to reconsider the case for pension.
The second writ application W. P. 673 (W) of 2011 was disposed of on 19th January, 2011 by simply recording that the case has been forwarded by the State Government to the Central Government for consideration.
Consideration was seemingly made on 3rd February, 2011. A Deputy Secretary to the Government of India, Ministry of Home Affairs, rejected the said application of the writ petitioner. He advanced the following reasons:-
(i) You have not furnished any acceptable record based primary evidence, duly verified by the State Govt. in support of his claimed suffering.
(ii) The State Govt. has not furnished a valid 'Non-Availability of Records Certificate' (NARC) having all ingredients prescribedtherefor.
(iii) In the absence of valid 'NARC', secondary evidence, i.e. Personal Knowledge Certificate cannot be considered and is not acceptable.
(iv) The Superintendent of Police, D.I.B. Nadia, District Intelligence Branch, Nadia vide their Memo No. 3010/26-94/R/2279 dated 09.5.2007 stated that "necessary enquiries were held and it is learnt that no relevant documents are available in the Krishnagar Dist. Correctional Home, Nadia in the office of District Magistrate, Nadia and in the office 3 of Superintendent of Police, DIB, Nadia. Hence any thing regarding home internment undergone by the applicant could be ascertained from this end".
(v) Superintendent, Krishnagar Dist. Correctional Home, Office of the Superintendent of Krishnagar Dist. Correctional Home, Nadia vide Memo No. 1182/AF dated 13.07.06 stated that "the Admission Register and Release Diary of Prisoners since 1931 to 950 of this Correctional Home (Jail) are not available".
(vi) In the copy of report submitted by D.I.B. Nadia regarding verification of past political suffering of Shri Salil Kumar Pal s/o Late Kaibeyla Nath Pal of Biswapara, P.S. Ranaghat, Dist. Nadia vide their Memo No. 1705/26-94/R/7909 dated 12.4.2004 stated as under."
This kind of a decision is most unfortunate.
I have gone through the pension scheme. There is a separate section in the scheme relating to the evidence required to be furnished by freedom fighters who suffered internment or externment. Those documents are either documents evidencing internment or externment or certificates from prominent freedom fighters.
The State is the recommending authority.
More than 23 years ago on 16th February, 1990 the State had approved and recommended the petitioner's case for grant of sanction, on the evidence that he had suffered internment during the period of October 1942 to June, 1943. It is to be presumed that the official records of internment were not available and hence a certificate of a co-freedom fighter was relied upon and accepted, before approval and recommendation.
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If the Central Government doubted that the writ petitioner was not a freedom fighter and was trying to fake his case, they ought to have, at that point of time, sent all the papers back with appropriate reasons to the State Government.
The introductory section to the scheme said that it was started to show respect or "Samman", to freedom fighters and martyrs. Surely this scheme should not be used as a machinery to show disrespect to a freedom fighter or to humiliate him by persons who were born years after the freedom struggle ended.
On the available evidence, I have no doubt, in my mind, that this a genuine case, more so, inasmuch as the Government records find mention of his name as stated in the letter of the government dated 7th April, 2011 at page 100 of the writ petition.
Undoubtedly, the said letter states that the records do not evidence his internment but, in my opinion, the existence of his name in the government records together with the other evidence that the writ petitioner has produced and the State Government's recommendation of 16th February, 1990 are enough to strongly prove his case. I also note that the letter of 7th February, 2011 is contradictory in some respects to the previous letters and stand of the government.
Considering all the above circumstances, I direct the Secretary, Ministry of Home Affairs, to ensure that the writ petitioner is declared a pensioner in terms of the above Scheme of 1980 and paid pension according to the scheme from the date of his application. Such pension should be released within three months 5 from the date of communication of this order and continued to be paid according to the above scheme, to the writ petitioner.
The writ application is allowed to the above extent. Let certified photocopy of this order, if applied for, be supplied as expeditiously as possible.
(I. P. Mukerji, J.)