Calcutta High Court (Appellete Side)
Smt. Lichu Bala Ghara vs Union Of India & Ors on 21 November, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble The Acting Chief Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Arijit Banerjee
MAT No. 500 of 2017
With
CAN No. 4054 of 2017
Smt. Lichu Bala Ghara.
-Versus-
Union of India & Ors.
For the appellant : Mr. Ramdulal Manna,
Mr. Mukteswar Maity
Ms. Manika Sinha
Mr. Chand Kishore Chakraborty,
Mr. Sabyasachi Mondal
For the Union of India : Mr. Asis Mukherjee
For the State-respondents : Mr. Tapan Kumar Mukherjee,
Mr. Pritam Chowdhury, Mr. Somnath Naskar Heard on: 15th and 21st November, 2017.
Judgement on: 21st November, 2017.
Arijit Banerjee, J. :-
The petitioner claims that her husband was an active Freedom Fighter, who participated in the Quit India Movement. The petitioner's husband, namely, Sudhangshu Sekhar Ghara (in short- Sudhangshu) passed away on12th September 2004.2
The Government of India introduced a scheme for providing pension to Freedom Fighters in the year 1972. The scheme was modified in the year 1980 and came to be known as Swatantra Sainik Samman Pension Scheme, 1980 (in short -the said scheme). The pension scheme provided, inter alia, that a person, who had suffered a minimum imprisonment for six months in the mainland jail before independence would be eligible for pension. It was explained in the scheme that a person, who remained underground for more than six months provided he was one for whose detention order was issued but not served would also be eligible for pension under the said scheme. As regards the procedure of proving the claim of being a Freedom Fighter, Clause-9 of the Scheme provided that Certificates from veteran freedom fighters, who had themselves undergone imprisonment for five years or more would suffice if, the official records are not forthcoming due to their non-availability. Sudhangshu applied for pension under the said scheme on 15th July, 1981, claiming to be a proclaimed offender.
Since he could not produce documentary evidence by way of Court/Government orders in support of his claim, he supported his application with a certificate issued by a Freedom Fighter, who had himself undergone more than five years' imprisonment, namely, Sushil Kumar Dhara. In view of the authorities taking no decision in the matter, Sudhangshu approached this court by way of a writ petition, which was disposed of by this court by an order dated 10th January 1994 directing the Central Government to dispose of Sudhangshu's application within a stipulated time period. Pursuant to such order, a Memo dated 11th March 1994 was issued by the under Secretary to the Government of India rejecting Sudhangshu's application. In the said Memo, it was recorded, inter alia, as follows:-
"Mere submission of such certificates from eligible 'Certifiers' without supporting evidence from official records or a certificate from the State Government (including all State Agencies) cannot make you entitled for grant of pension. Your case was also recommended by the State Government on the presumption that records of the relevant time were not available. However, subsequently, the State Government vide their letter dated 12.2.1987/31.03.1987 forwarded a report from the District Midnapore which indicated that Thana records were checked but nothing 3 was found against you. Warrant of Register for 1942-44 is not available at Janbas P.S. There is no note in any other Register about you during the years 1942-44........."
The said Memo was challenged by Sudhangshu's wife before the learned single judge by filing W.P. No. 26199(W) of 2015. The learned single judge discussed the history of the case and was of the opinion that Sudhangshu did not get justice from the Government and although substantial time has elapsed, this is a fit case to be re-opened. The operative portion of the order of the learned single judge reads as follows:-
"In those circumstances, I direct the Secretary, Government of India, Ministry of Home Affairs, Freedom Fighters' Division to nominate a very senior Central Government official and the Chief Secretary, Government of West Bengal to nominate a senior State Official to constitute a committee within eight weeks from date to thoroughly investigate the case of the writ petitioner's husband, taking into account all the evidence that is available and make a reasoned decision regarding his entitlement to freedom fighter's pension within three months of constitution of the committee. If no evidence, to the contrary is found, the certificate of Sushil Kumar Dhara shall be acted upon and treated as conclusive.
The claim of the writ petitioner to pension, if admissible as per the above determination, will also be determined within a further period of one month. If the writ petitioner's husband is found to have been eligible to freedom fighter's pension, the writ petitioner shall get the widow's pension prospectively.
With the above observations, this writ application is, accordingly, disposed of."
The writ petitioner is aggrieved by the said order of the learned single judge and has preferred the present appeal.
Mr. Manna, learned counsel appearing for the writ petitioner/appellant submitted that there was no scope for the learned judge to order constitution of a Special Committee for looking into the case of her husband. There is already a committee framed for that purpose being the State Advisory Committee to implement the said pension scheme. Learned counsel submitted that it is now established by reason of earlier decisions of this court that no official record pertaining to the 4 Village- Polanda under P.S. Tamluk, of which Sudhanshu was a resident, are available. Hence, the Government has to act on the basis of Personal Knowledge Certificate (In short- PKC) issued by an eligible Certifier. The scheme provides for acting on the basis of PKC when official records are not available.
Mr. Manna drew our attention to a certificate issued by the District Magistrate, Midnapore certifying that no relevant records relating to issue of warrants, proclamation and prosecution during the period 1930- 1946 are available in the District of Midnapore. It is pertinent to note that Sudhangshu claims to have gone underground to avoid arrest between October 1942 and September 1944.
Learned counsel drew our attention to a decision of a learned single judge of this court in the case of Gokul Chandra Panja -vs- Union of India, reported in 1991(1) CLT HC 241. In that case, the petitioner also claimed to be a freedom fighter and claimed pension under the same pension scheme. The petitioner in that case was a resident of Village - Ghorathakuria which is one of the 16 Villages including Polanda under the Tamluk P.S. The learned judge had directed the authorities to produce all official records pertaining to 16 villages including Polanda for verifying the petitioner's claim. No official records could be produced. The records that were produced were stated to be irrelevant by the Superintendent of Police, Midnapore. The Register of warrants of arrest could not be produced. In short, no records which would have been material to the question of the petitioner's political suffering could be traced. In those circumstances, the learned judge held that the PKC that the petitioner had produced in support of his claim had to be accepted. The appeal preferred from the said order of the learned judge being MAT No. 1604 of 1999 was dismissed by an order dated 4th May, 2000.
Mr. Manna also drew our attention to a judgement of a Division Bench of this court in the case of Gajendra Nath Manna -vs- State of West Bengal, reported in 2010 (4) CHN (CAL) 4. In that case the petitioner, who claimed to be a freedom fighter and claimed pension under the 5 same pension scheme was a resident of Village-Polanda. Again, the relevant records could not be produced. The Village Crime Note Book Part-I relating to Village-Polanda that was produced, was found to have recorded only petty crimes, like theft, house breaking, etc. Part-II of the Village Crime Note Book could not be traced. Further the warrant of arrest Register also could not be produced for the said village. Accordingly, the Division Bench held that the petitioner had to be granted pension under the said scheme on the basis of the Personal Knowledge Certificate issued by the eligible Certifier.
Relying on the aforesaid decisions, Mr. Manna submitted that it is now judicially accepted that no official records for Village-Polanda are available pertaining to the relevant period and hence it would be futile to hold further investigation into the matter by a specially constituted committee. He submitted that the impugned order should be set aside and the Government should be directed to release admissible pension in favour of the petitioner.
Appearing on behalf of the State Government, Mr. Mukherjee, learned Additional Government Pleader submitted that it is an obligation of the person claiming to be a freedom fighter and claiming pension, to produce the official records. A PKC is not reliable evidence. He further submitted that although Sudhangshu claimed to be a proclaimed offender in his application, the certificate of the veteran freedom fighter that he has produced was subsequently corrected to read that Sudhangshu was not a proclaimed offender but he was one for whose detention orders were issued, but he evaded arrest. Hence, according to Mr. Mukherjee, the claim of Sudhangshu is not supported by the certificate issued by Sushil Kumar Dhara, since by the correcting letter, Sushil Kumar Dhara certified that Sudhangshu was not a proclaimed offender. Mr. Mukherjee also submitted that the learned single judge should not have entertained the writ petition in view of the delay of about twenty-one years in the petitioner approaching the court. The impugned order was passed on llth March 1994. The writ petition was affirmed on 6th 6 October 2015. He submitted that as a court of equity, on the ground of delay alone, the learned single judge should have dismissed the writ petition.
Learned counsel appearing for the Central Government relied on a Division Bench decision of this court delivered in MAT 2066 of 2000 in the case of Saktibala Samanta -vs- Union of India & Ors. on 28th November 2000, in support of his submission that the PKC that Sudhangshu relied on and the present petitioner-appellant is relying on, being secondary evidence and not being in support of Sudhangshu's claim of being a proclaimed offender, no pension can be granted to the writ petitioner under the said scheme.
We have carefully considered the respective contentions of the parties. As regards delay, 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 laches on the part of the petitioner. But there are circumstances where justice demands that a writ petition be entertained even though there has been substantial delay on the part of the petitioner in approaching the court. This is, in our opinion, such a case. We cannot forget the contribution of freedom fighters in making India a free nation. They sacrificed everything for the sake of the nation for getting freedom for their motherland and freedom for the future generations. Their selfless crusade for the country's independence cannot be evaluated in terms of money. In the present case no third party interest will be affected by the writ petition being entertained even after substantial delay. Hence, in our opinion, the learned judge committed no error in entertaining the writ petition since he was of the opinion that injustice has been done to Sudhangshu.
Coming to the merits of the matter, it is true that Sudhangshu in his application stated that he was a proclaimed offender. However, by a subsequent letter, he corrected such statement and stated that he went underground for 23 months from October 1942 to September 1944 as he was one for whose detention orders were issued but he evaded arrest. Hence, the application of 7 Sudhangshu as corrected and the PKC issued by Sushil Kumar Dhara are quite consistent and in consonance with each other. There is no discrepancy between the two. From the decisions cited by Mr. Manna, it is clear that no records pertaining to freedom fighters in the District of Midnapore for the relevant period are available. This is also certified by the District Magistrate of Midnapore as recorded above. Hence, it will be quite impossible for the petitioner or anybody to produce official records pertaining to freedom fighters who were residents of Village Polanda for the relevant period. If that be so, the only other option would be to act on the basis of PKC issued by eligible Certifiers. The pension scheme provides for the same. This is nothing irregular. Although a PKC may be secondary evidence, in the absence of primary evidence, the same has to be accepted. This was the decision of two earlier Division Benches of this court in similar cases.
The Division Bench decision in the case of Saktibala Samanta (supra), is completely distinguishable on facts. In that case the appellant's husband who claimed to be a Freedom Fighter, stated in his application for pension that he had gone underground for the relevant period. He did not claim himself to be a proclaimed offender. However, the certificate that he produced stated that he was a proclaimed offender. In view of such discrepancy, the request for pension was rejected. In the facts of the present case, there is no such discrepancy. The application for pension as corrected and the certificate as corrected produced in support of the application are consistent with each other.
We are of the opinion that no useful purpose will be served by holding a fresh investigation into the entitlement of the writ petitioner to receive pension as the widow of the freedom fighter under the said pension scheme.
Mr. Mukherjee submits that pursuant to the learned single judge's order a committee has already been constituted. However, he is unable to apprise us as to what progress has been made by such committee 8 Since we are of the view that it will be futile to hold a fresh investigation, we direct that the committee shall not proceed any further in the matter. The order of the learned single judge is set aside.
We are satisfied that the certificate issued by Sushil Kumar Dhara would make Sudhangshu eligible for being granted pension under the said scheme and after his death his widow as an eligible dependant as defined under the said scheme would be entitled to receive pension. Nobody has disputed the authenticity of the certificate issued by Sushil Kumar Dhara in favour of Sudhangshu. This is one of the modes of proving the claim of being a freedom fighter envisaged by the said pension scheme.
Accordingly, we direct the concerned respondent authorities shall pay to the appellant, freedom fighter's pension under the liberalised Swatantra Sainik Samman Pension Scheme, with effect from the date of her husband's application. The arrears from the date of the application till the end of November 2017 shall be paid by 3lst January 2018 and the pension for the period commencing from December 2017 onwards shall be regularly paid by the seventh day of each succeeding month.
With the above observations, the appeal and the connection application are disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, A.C.J.) (Arijit Banerjee, J.)