Calcutta High Court (Appellete Side)
Basanti Chakraborty vs Union Of India & Ors on 22 April, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
Serial Nos.21.
April 22, 2019.
SG/G.S.Das
CAN 270 of 2017
In
MAT 752 of 2016
Basanti Chakraborty
-Vs-
Union of India & Ors.
Mr Pijush Chaturbedi
Mr Biswajit De
... for the appellant.
Mr Anuran Samanta
... for UOI
Mr Tapan Kumar Mukherjee
Mr. Somnath Naskar
... for the State-Respondents
This writ appeal is against the order of the learned single Judge refusing to issue direction for consideration of a claim for widow pension under the Swatantra Sainik Samman Pension Scheme, 1980.
We have also heard the learned Counsel for the Central Government and the State Government.
The substance of the writ petition relates to the eligibility to be treated as widow of late Kshudiram Chakraborty whose status as a freedom fighter eligible to be covered in terms of the provisions of the Swatantra Sainik Samman Pension Scheme, 1980, is not in dispute.
2When the writ petitioner Basanti Chakraborty stated that she be given benefits as a widow of that person, the matter was left in the realm of the administration with the Government of India and the Government of West Bengal for consideration.
It appears from the material facts that Kshudiram Chakraborty had a woman living with him and she was treated as a wife. It also appears that the writ petitioner Basanti Chakraborty later commenced living with them and serving them and later on was recognised as the second wife of Kshudiram Chakraborty.
When directions were sought for from the learned single Judge to require the State Government and the Government of India to process the application for pension, the approach adopted in adjudicating that writ petition was straightaway to consider whether her claim would sustain on the face of the provisions of the Hindu Marriage Act, 1955.
We have seen the age of late Kshudiram Chakraborty, the age of his wife (first wife) and the age of the writ petitioner Basanti Chakraorty. One strong factor which compels us to consider the issue deeper is that there is a declaration made by Gita Rani Chakraborty (first wife) essentially stating that Basanti Chakrabrty is the second wife of Kshudiram Chakraborty. She also demanded that Basanti be given the benefits of pension following her being a 3 nominee in the appropriate account of Kshudiram Chakraborty as per records.
This is a case where the facts as noticed above cannot be treated as artificial or which could be treated as false. The only issue that would be critical is as to whether there is any material on record to show that the marriage between Basanti Chakraborty and late Kshudiram Chakraborty took place after the coming into force of the Hindu Marriage Act, 1955.
There is no material to show that the marriage took place after the coming into force of the 1955 Act. Equally, there is no material to conclude finally that the marriage took place before coming into the force of that Act.
Be that as it may, the ring of truth that emanates from the declaration of Gita Rani Chakraborty, is something that stimulates the judicial conscience to show that this is one of those cases where the concept of social engineering by executive Governments is called for to look into the request of Basanti Chakraborty in a comprehensive and cohesive manner, such consideration being mandated by the constitutional goal of providing support and succor to those in need.
While we say this, we do not express anything finally, but we do hereby require the State Government to send a report immediately to the Union of India touching the claim of Basanti 4 Chakraborty for relief by way of pension as a widow in terms of the Swatantra Sainik Samman Pension Scheme, 1980.
The impugned order is issued without appropriately addressing all issues which are germane for decision and also closing an issue without leaving it for consideration in due jurisdiction including in the administrative realm. We, therefore, are inclined to set aside the impugned order passed by the learned single Judge and we do so. As a consequence, we also set aside the decision contained in the communication dated October 13, 2016 issued by the Government of India.
We, therefore, seek a pragmatic consideration of the claim of the writ petitioner by the Competent Authority which will deal with her request for pension.
Having regard to the age of the writ petitioner we direct that the State Government will send its report within 45 days from the date of communication of this order and the Central Government will take a decision on the matter within a further period of two months from the receipt of all papers at that end.
The appeal and the connected application stand disposed of.
( Thottathil B. Radhakrishnan, CJ. ) 5 ( Arijit Banerjee, J. )