Calcutta High Court (Appellete Side)
Sri Matilal Pradhan vs The Union Of India & Ors on 9 July, 2010
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTION WRIT JURISDICTION
APPELLATE SIDE
W. P. No. 26738 (W) of 2008
Sri Matilal Pradhan
Vs.
The Union of India & Ors.
PRESENT :
THE HON'BLE JUSTICE S.P.TALUKDAR
Mr.Prasanta Mukherjee
Mr. Ramdulal Manna
Mr. Basudeb Bag
Mr. Milon Kr. Maity ... for the petitioners.
Ms. Suchitra Saha
Mr. Ejaz Hossain ...for the State.
Mr. Binod Kumar Gupta ...for the Union of India.
Judgement On : 9.7.2010
S.P. Talukdar, J : Alleging arbitrariness and illegality on the part of the
authorities of both the Central Government as well as the State Government, the
petitioner, Matilal Pradhan, approached this Court with the instant application
under Article 226 of the Constitution.
Grievances of the petitioner, as ventilated in the instant application, may
be encapsulated in a few sentences as follows :-
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The petitioner claiming to be a freedom fighter applied for grant of
Swatantrata Sainik Samman Pension asserting thereby that he had to go
underground as far as back as in September, 1942 and remain as such till
September, 1943. This was due to a warrant of proclamation and attachment
pending against him in view of his involvement in the August Movement. While
applying for such pension, he supported his claim with a certificate issued by a
veteran freedom fighter, namely Hiralal Maity, as per form mentioned in the
scheme. The District Magistrate intimated that the records relating to
proclamation were not available as per the report received from the concerned
police authority.
The Government of India by issuing guidelines modified the eligibility
criteria for grant of pension and it was relaxed in order to give opportunity to the
petitioner to apply for grant of such pension. The District Magistrate, Medinipur,
forwarded a report regarding verification of records relating to the sufferings of
the petitioners stating inter alia that records were not available from the Office of
the Medinipur Police Station. The Joint Secretary, Government of West Bengal,
communicated the Government decision in compliance with the direction issued
by the High Court in order dated 26th May, 1992 in connection with civil order
No. 15982(W) of 1991. The Government took the stand that the petitioner was
not entitled to get such pension and was not fit for being recommended for the
same. It was further stated that the petitioner did not submit the documentary
evidence based on official record or the NARC from the competent authority. The
case was thus not recommended for pension by the DLAC, Medinipur. The
P.K.C. of Sri Hiralal Maity as submited by petitioner in support of his claim
appeared to be defective as the certifier issued the certificate for the period
during which he himself was lodged in the Medinipur Central Jail.
On 24th September, 1997, the Government of India decided the matter
holding thereby that the petitioner is not entitled to get the benefit of pension due
to various reasons like that there had been no indication in the paper submitted
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by the petitioner showing that any executive order was issued against him; the
petitioner did not mention the details of the facts and circumstances, case
numbers etc. in connection with which warrant of arrest might have been issued
against him and which reportedly compelled the petitioner to go underground
and the petitioner did not substantiate his claim with any documentary evidence
based on official record or any RC from the competent authority.
Government of India further pointed out that P.K.C. of Sri Hirala Maity in
support of the claim of the petitioner was defective as the certifier issued the
same for the period during which he himself was lodged in Medinipur Central
Jail. Questioning the said orders being the order dated 9th of April, 1992 passed
by the State Government and the order dated 24th September, 1992, passed by
the Government of India, the petitioner approached the Court with a writ
application being No. C.O. No. 2401 (W) 1993.
The said writ application along with thirty other similar matters were
taken up for hearing my learned Single Bench of this Court. Hon'ble Single
Bench disposed of the said applications holding inter alia that some veteran
freedom fighters have already been given recognition by the country to issue
certificates. In such circumstances, the same were issued. Sufferers cannot be
made victims of circumstances by any illogical argument. If name of any such
freedom fighter does not find mention in the Government records, there could be
no reason as to why a certificate issued by a veteran freedom fighter cannot be
accepted. According to the Learned Court, this could be an alternative mode of
proof of the claim.
It was also held that onus of such proof cannot lie upon the incumbents
alone for the purpose of collection of evidence when it is in the hands of third
parties. The grant of Samman pension to the freedom fighter is a noble cause
and it deserves a flexible approach.
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Learned Court further held that the person who suffered in jail with the
freedom fighter or associated with him or her at the relevant point of time would
be the best person to Judge the situation and issue necessary certificate.
The case of the claimants under the scheme is required to be determined
on the probabilities and not on the touchstone of the test of beyond reasonable
doubt. It was observed by the Learned Court that once on the basis of the
evidence it is probablised that the claimant had suffered imprisonment for the
cause of the country during the freedom struggle, a presumption is required to be
drawn in his favour unless the same is rebutted by cogent, reasonable and
reliable evidence.
Learned Court framed certain guidelines and the State as well as the Union
of India were directed to follow the same.
In compliance with the order of the Hon'ble Court dated 14th February,
2002, the Deputy Secretary, Government of West Bengal took up the matter with
a petitioner. After due consideration, the said Deputy Secretary observed that
the case is not recommendable for Samman Pension on the ground that the
District Magistrate, Midnapur, forwared a report from Officer-in-charge of the
Mahishdal Police Station indicating therein that after consulting existing P.S.
records, I.C., Warrant Register and VCNB, he could not find anything against
the such petitioner/freedom fighter for the period from 1930 to 1946.
The petitioner did not submit any non-availability of records certificate
from the competent authority. The State Government has to depend on the
agencies for providing such NARC.
The petitioner had claimed that as per direction of the Hon'ble Court, such
a certificate cannot be challenged simply on the ground that the certifier was in
jail at the relevant point of time. A further report in this regard was received
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from O.C., Mahishdal Police Station in 1986. Thus, Government of India decided
not to grant the benefit of pension under the scheme on the basis of the report of
the District Magistrate who submitted a report to the Government of West
Bengal mentioning therein the report of the Officer-in-charge of the Mahishadal
Police Station, as referred to earlier. Such refusal on the part of the Government
was on the ground that there was no reliable supporting material to establish the
eligibility of the petitioner. Contempt applications were filed and the Hon'ble
Court was pleased to observe that alleged contemnors failed to appreciate the
observation and order of the Court. They simply reiterated the facts which were
available to them prior to the order of the High Court. Hon'ble Court further held
that the said authorities cannot sit on appeal and as such, element of contempt
cannot be ruled out. But since the said contemnors tendered their unconditional
apology, the Court accepted the same. The Hon'ble Court being deeply concerned
about the gravity of the situation forwarded the matter to the President of India.
The Court was concerned and wanted the real freedom fighters and their family
members to get their legitimate pensionary benefits. On 1st of December, 2005
under Secretary (P), Rashtrapati Bhavan informed that the matter had been
referred to the Ministry of Home Affairs and the petitioner was asked to
approach the said authority. On 25th of December, 2008, the petitioner could
learn that no further step could be taken in regard to these matters since
decision had already been taken by passing an appropriate order.
Being aggrieved by such consistent indifferent stand, the petitioner
approached this Court with the instant writ application.
In response to this, the respondent authorities, both the State Government
authorities as well as the authorities of the Government of India contested the case thereby denying all the material allegations made by the petitioner. The stand of the respondent authorities seems to be that the petitioner failed to submit either any documentary evidence based on Official records or the NARC from the competent authority. Such authorities did not recommend grant of 6 pension since there was no favourable report from the DLAC, Medinipur. The personal knowledge certificate of Sri Hiralal Maity, as submitted by the petitioner, in support of his claim was defective as the certifier issued the same for the period during which he himself was lodged in the Medinipur Central Jail. According to the respondent authorities, the claim of the petitioner for grant of freedom fighters pension had no sound rational basis. Dismissal of the claim application was, thus, prayed for.
Respondents No. 1,2,8 and 9 by filing affidavit-in-opposition claimed that writ petitioner had applied for S. S. Pension claiming thereby that he was underground from September, 1942 to 1943 and it support of his claim, he submitted personal knowledge certificate from Hiralal Maity. Sri Maity certified that Sri Motilal Pradhan remained underground for one year from September 1942 to September 1943 as he was a proclaimed offender. His case was considered and rejected by the Ministry's letter dated 31.7.1986 for the reason that the supporting documentary evidence placed by him with his application could not prove his claim. Being aggrieved by such rejection of the application, the writ petitioner along with nine others filed C.O. No. 15982 (W) of 1991. The Hon'ble Court by order dated 26.5.1992 inter alia directed the State Government to consider and recommend the case of the petitioner within six weeks. In compliance with such direction, State interacted with the Ministry by its letter dated 9.4.1992.
The case of the petitioner was considered and it was found to be not fit for being recommended for Samman pension for the following reasons :
(a) The petitioner did not submit any documentary evidence based on official records or the N.A.R.C. from competent authority.
(b) The case was not recommended for pension by the D.L.A.C., Medinipur.7
(c) The personal knowledge certificate of Shri Hiralal Maity was defective as the certifier issued the certificate for the period during which he himself was lodged in the Medinipur Central Jail.
The State Government thus forwarded the case to the Ministry for suitable action. The Ministry reconsidered the case of the petitioner and rejected the same on the following grounds :-
There was no indication in the application that any executive order was issued against him. The petitioner did not mention in details of the incidents, case number etc. in connection with which a warrant of arrest might have been issued on account of which he went underground. He did not submit either the documentary evidence based on official records or the N.A.R.C. from the competent authority. The personal knowledge certificate of Shri Hiralal Maity was again defective as the certifier issued the certificate for the period while he was in Medinipur Central Jail.
On 9th of August, 2006 in connection with F.M.A. No. 334 of 2006, MAT No. 4492 of 2005 (Union of India & Ors. Vs. Smt. Suvadra Bala Paul & Ors.) the Hon'ble Division Bench of this Court inter alia held as under :-
"A person who himself is in Jail, he cannot certify true to his knowledge whether another person at that point of time was really absconding or not. If any such certificate is given, the same is either a false one or based on hearsay evidence".
The scheme does not make a freedom fighter eligible for pension if he remained underground for more than six months for mere joining or involving "Quit India Movement" in the year, 1942 unless (a) It is shown that he was either declared as a proclaimed offender; (b) on whom an award for arrest/head was announced (c) whose detention order was issued but could not be served.
8Writ petitioner admitted in his application that he did not abscond from January 1, 1946 i.e. when he re-surfaced nor was he ever arrested. It suggests that there was neither any warrant nor any valid order of proclamation against him. It could be that he was wrongly impleaded or due to his tendering of apology, he was given reprieve. If the abscondence continued till January 15, 1947, the petitioner could successfully contend that due to Independence of the country, the case was not proceeded with after August 15, 1947.
Such respondents claimed that out of about 71,000 applications received from West Bengal about 36,000 were from Midnapur District alone. It naturally required proper examination considering that the Union Government sanctioned Samman Pension to 1,62,409 freedom fighters on all India basis up to 31.5.1995. Granting pension in such a situation, according to the said respondents, would have resulted in immense loss to the public exchequer.
The respondent authorities also took the stand that S.S.S. pension is the Samman bestowed on freedom fighter who fulfil the eligibility condition under the scheme. The existence of the scheme itself cannot be construed as an automatic right. The scheme is not open to any whims, fancies, pleasures of the respondent authorities. It has well-settled legal provision for determining eligible recipient for Samman Pension.
It may be mentioned that both the State Government as well as the Union of India took an identical stand in regard to the claim of the writ petitioner as made in the case.
Mr. Prasanta Mukherjee, learned Counsel appearing for the petitioner, deriving inspiration from an Apex Court decision in the case between The Comptroller and Auditor General of India V. K.S. Jagannathan and Another reported in AIR 1987 S.C. 537 submitted that in a proper case in order to prevent 9 injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.
Mr. Mukherjee while ventilating the grievance on behalf of the petitioner, categorically submitted that there had been consistent indifference, if not willful negligence, on the part of the respondent authorities in appreciating the scheme of the writ petitioner. It was further submitted that the petitioner could not be in any way responsible for alleged missing or misplacement of any record. It was for the concerned authorities to maintain such documents and records. Non- availability of the same cannot disentitle the petitioner. It was contended by Mr. Mukherjee that it is unfortunate that a genuine freedom fighter had been compelled to move from pillar to post and post to pillar in order to establish his claim as a freedom fighter.
Deriving inspiration from an Apex Court decision in the case between Director of Settlements. A.P. and Others V. M.R. Apparao and Another reported in AIR 2002 Supreme Court 1598 it was submitted on behalf of the petitioner that expression 'for any other purpose' in Article 226, makes the jurisdiction of the High Courts more extensive but there is need for exercise of such jurisdiction with certain restraints and within some parameters.
The crux of the controversy is whether the State authorities are justified in ignoring the claim of the petitioner on mere technical ground that it could not be possible for him to substantiate his claim with materials acceptable to the State authorities.
Mr. Mukherjee, on behalf of the petitioner, submitted that it is ridiculous that the Government authorities sometime unreasonably insist on technicalities. He seems to be quite justified in mentioning that woods should not be missed for the trees. According to Mr. Mukherjee, if the concerned Government authorities do not have relevant documents or registers, what could a genuine freedom 10 fighter, like the petitioner, do about it. He then contended that it is not a mere question of some financial benefits, it essentially relates to recognition of the sacrifice of the writ petitioner. Mr. Mukherjee further submitted that by discarding the certificate issued by a recognised freedom fighter like Sri Hiralal Maity, the Government has virtually shown disrespect to those who sacrificed everything so as to give us freedom.
In response to this, Ms. Suchitra Saha appearing as learned Counsel for the State respondent, categorically submitted that the scheme for grant of Samman Pension does not deserve to be abused in the hands of persons who unreasonably seek to be placed in the category of "freedom fighters".
Ms. Saha referring to the decision in the case between Bhaurao Dagdu Paralkar Vs. State of Maharashtra and Others reported in (2005) 7 Supreme Court Cases 605 submitted that "fraud" and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. The Apex Court in the case observed that fraud and justice never dwell together. An act of fraud on Court is always viewed seriously.
Fraud and deception are synonymous. It cannot be disputed that if a person approaches Court with unclean hands, his grievance does not deserve to be entertained at all. But while doing so, it is not expected that the cart should be placed before the horse. Court cannot act on the presumption of guilt, be it of an accused or a litigant, approaching the Court for redressal of his grievances.
It was submitted by Ms. Saha that thousands of applicants from the District of Medinipur, West Bengal made such claims which were not sustainable. This Court can very well appreciate such anxiety. But this by itself cannot lead to any presumption that the present petitioner has also knocked the 11 doors of this Court with any mala fide intention or that he has sought to derive some benefits on the basis of false claim.
The Court is certainly expected to strike a balance between the two.
So far the present case is concerned, it cannot be disputed that no supporting material could be found in favour of the petitioner so as to enable him to pass the test of scrutiny by the concerned authority. Possibly, this left him with no option but to rely upon the certificate issued by the recognised freedom fighter. But the problem lies elsewhere. Question has been raised as to how could the freedom fighter who admittedly was in jail at the relevant point of time could issue a certificate regarding involvement of a person in freedom movement. I find it difficult to brush aside the apprehension as raised on behalf of the State respondents in this regard.
Moreover, it is doubtful as to how far this Court in response to an application under Article 226 of the Constitution can embark upon an enquiry. This Court cannot function as a fact finding body. It is an accepted position that the Writ Court is concerned about the decision making process. In case of any impropriety or illegality in the decision making process, this Court is certainly not expected to remain a passive onlooker. This Writ Court will not hesitate to exercise its extra-ordinary writ jurisdiction in order to undo a wrong. Hands of law particularly in writ jurisdiction, are long enough so as to reach injustice anywhere within its territorial jurisdiction.
It is worth mentioning that the learned Counsel for the Central Government authorities/respondents virtually echoed the submission made by Ms. Saha as learned Counsel for the State respondents.
12After taking into consideration all relevant facts and materials, I do not find any sufficient reason, that too, to the satisfaction of the judicial conscience of the Court, so as to justify any interference.
Accordingly, the present application W.P. No. 26738 (W) of 2008 fails and be dismissed.
Interim order, if any, stands vacated.
Urgent xerox certified copy be supplied to the parties, if applied for, after due compliance with procedural formalities.
(S.P. Talukdar, J)