Calcutta High Court (Appellete Side)
Union Of India & Ors vs Indu Bhusan Jana & Ors on 26 April, 2017
Author: Tapabrata Chakraborty
Bench: Nishita Mhatre, Tapabrata Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Acting Chief Justice Nishita Mhatre
&
The Hon'ble Justice Tapabrata Chakraborty
F.M.A. 3502 of 2015
Union of India & Ors.
versus
Indu Bhusan Jana & Ors.
For the Appellants : Mr. Amal Kumar Mukhopadhyay,
Mr. Uttiya Roy.
For the State : Mr. Tapan Kumar Mukherjee,
Mr. Rabindra Narayan Dutta.
For the Private Respondent/
Writ Petitioner : Mr. Ram Dulal Manna,
Mr. Mukteswar Maiti.
Hearing is concluded on : 28.03.2017.
Judgment On : 26th April, 2017.
Tapabrata Chakraborty J. :
1. A procrastinated legal battle pertaining to grant of pension under the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as the said scheme) culminated in an order dated 28th November, 2014 passed by the learned Single Judge in W.P. No.1736 (W) of 2009 upholding the claim towards grant of pension under the said scheme. The said order dated 28th November, 2014 is under challenge in the instant appeal.
2. Records reveal that as the application of the writ petitioner/respondent no.1 herein for grant of pension under the said scheme was not considered, he approached this Court through a writ petition which was disposed of by an order dated 22nd February, 1995 directing the respondents/appellants herein to take a final decision. Subsequent thereto, the claim of the respondent no.1 was rejected by an order dated 20th March, 1996. Challenging the said order he preferred a writ petition being WP 12043 (W) of 1998. Upon contested hearing, the Hon'ble Court by an order dated 23rd July, 2002 set aside the reasons given in the said order dated 20th March, 1996 and directed the authorities "to decide the matter afresh on the basis of the documents produced before the said authorities and sanctioned by the State of West Bengal". The appellants did not prefer any appeal against the said order. Thereafter the respondent no.1 was communicated an order dated 25th October, 2002 passed by the appellant no.2 rejecting his claim. Challenging the said order dated 25th October, 2002, the respondent no. 1 again approached this Court by a writ petition being WP 3710 (W) of 2003. The said writ petition was dismissed by an order dated 26th April, 2005. Aggrieved thereby, the respondent no.1 preferred an appeal which was disposed of by a judgment dated 19th September, 2008 setting aside the order impugned in the appeal and directing that "the Central Government will proceed to decide on the appellant's application only on the basis of the documents furnished and without calling for any further evidence". The said judgment was not challenged by the appellants. Subsequent thereto, the respondent no.1 was communicated an order dated 17th December, 2008 issued by the appellant no.3 rejecting his claim. Challenging the same, the appellant preferred a fresh writ petition being WP 1736 (W) of 2009 and initially an order was passed in the same on 21st March, 2011 directing the District Magistrate, Purba Medinipur and the Superintendent of Police, District Intelligence Branch, Purba Medinipur to produce the police records from the year 1942 - 1944. Pursuant to the said order the District Magistrate, Purba Medinipur issued a memorandum dated 28th March, 2011 to the Superintendent of Police, Purba Medinipur and in reply thereto, the said Superintendent of Police, Purba Medinipur intimated that the "Officer-In-Charge, Bhagawanpur Police Station has sent a message to the undersigned that no police record has been found during the period from 1930-1946". Thereafter upon exchange of affidavits, the writ petition was allowed by setting aside the order dated 17th December, 2008. The respondent nos. 1, 2 and 3 in the writ petition have come up in appeal against the said order.
3. Mr. Mukhopadhyay, learned advocate appearing for the appellants argues that the learned Single Judge while disposing of the writ petition did not grant any weightage to the report of the District Magistrate, Medinipur dated 8th November, 1993 which confirmed that there are other records from where details of the persons who had taken part in freedom struggle can be ascertained. As upon thorough enquiry it was ascertained that there were records pertaining to the period from 1930 to 1946, no reliance can be placed upon the Personal Knowledge Certificate (hereinafter referred to as PKC) issued by Rabindra Nath Giri.
4. According to him, there has been a failure on the part of the respondent no.1 to produce relevant documents in support of the fact that he went underground as he was a proclaimed offender or as he was one on whom an award for arrest was announced or as he was one for whose detention, an order was issued but not served. The learned Judge erred in law in passing the impugned order presuming that the official records of the writ petitioner's claimed sufferings were not available.
5. He further submits that the said scheme is a document based scheme and the documents required for eligibility for such pension are required to be produced by the applicant and in the event of any discrepancy or ambiguity relating to the documents, the benefit of the said scheme cannot be extended. In support of such argument reliance has been placed upon a judgment delivered in the case of Jagdamba Devi -vs- Union of India & Ors.
6. Mr. Manna, learned advocate appearing for the writ petitioner/respondent no.1 herein submits that the claim of the respondent no.1 was approved by and recommended for grant of pension under the said scheme as would be explicit from the memorandum dated 12th December, 1990 issued by the Assistant Secretary to the Government of West Bengal. In spite of such recommendation, his claim was rejected by an order dated 20th March, 1996 placing reliance upon a report of the District Magistrate dated 8th November, 1993 which allegedly indicated that there are other records from where details of the persons who have taken part in freedom struggle can be ascertained and the most important document is Village Crime Note Book (hereinafter referred to as VCNB) which is a permanent record and is available in the police stations for the period from 1930-
46. The reasoning given in the said order dated 26th March, 1996 was set aside by an order dated 23rd July, 2002 passed in the writ petition being WP 12043 (W) of 1998 and no appeal was preferred against the same by the appellants herein and accordingly the said order is binding amongst the parties inter se and as such the learned Single Judge has rightly set aside the order dated 17th December, 2008 and there is no infirmity in the said order warranting interference of this Court.
7. Heard the learned advocates appearing for the respective parties and considered the materials on record. The social philosophy behind enactment of the said scheme, was to mitigate the sufferings and to ameliorate the plight of those who had given their best part of life for the country in the hour of its need. The grounds towards rejection of the writ petitioner's claim as contained in the order dated 17th December, 2008 were minutely scrutinised and the same were ascertained to be similar to the grounds of rejection contained in the earlier order dated 20th March, 1996 and learned Single Judge rightly discounted the same since the reasons given in the said order dated 20th March, 1996 were set aside in the earlier round of litigation by the order of this Court dated 23rd July, 2002 and no appeal was preferred against the same by the appellants herein. The authorities disregarded the said order of this Court dated 23rd July, 2002 and proceeded to assess the claim of the respondent no.1 unmindful of the extent of its enquiry permitted by the order dated 23rd July, 2002. The order dated 17th December, 2008 was passed being oblivious of the fact that the claim for pension had already been recommended by the State Government by a memorandum dated 12th December, 1990 and that the District Magistrate had certified that the records pertaining to the period from 1930 to 1946 are not available. In the instant case the PKC was issued in the prescribed form and the authenticity of the same had never been challenged by the appellants. There is no discrepancy or ambiguity relating to the documents produced by the respondent no.1 claiming pension under the said scheme and the judgment delivered in the case of Jagdamba Devi (Supra) is distinguishable on facts and has no manner of application in the instant case.
8. The learned Single Judge upon dealing with all the factual issues has arrived at specific findings and we do not find any error in the same. The order impugned in the appeal does not suffer from any jurisdictional error or any manifest injustice warranting interference of this Court.
9. The appeal is accordingly dismissed.
There shall, however, be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Tapabrata Chakraborty, J.) (Nishita Mhatre, A.C.J.)