Calcutta High Court (Appellete Side)
Smt. Ramoni Patra vs Union Of India & Ors on 24 June, 2011
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
24.06.2011 W.P. 3895(W) of 2000
ss
Smt. Ramoni Patra
Vs.
Union of India & ors.
Mr. Prasanta Mukherjee
Mr. Ramdulal Manna
Mr. Basudev Bag
... For the petitioner
Mr. Bijoy Kumar
... For the Union of India
Mr. Tapas Banerjee
... For the State
The writ petitioner is the widow of one Shyam
Chand Patra. Shyam Chand Patra, during his lifetime,
made an application before the Central Government for
"Swatantra Sainik Samman Pension" under freedom
fighter scheme claiming to be a freedom fighter.
It was contended by Shyam Chand Patra that no
record relating to his political suffering is available. He
made the application with a certificate issued by one
Rabindra Nath Giri, who was a freedom fighter and was
in jail in 1942. The said application was considered by
the District Level Advisory Committee. They finally
recommended him for appropriate "Swatantra Sainik
Samman Pension" of the Central Government. On the
basis of recommendation of the District Level Advisory
Committee he was asked to complete the formalities as
contained in letter dated January 31, 1991. Then the
applicant complied with the direction. However, the
Central Government was not satisfied with the
particulars and asked him to submit further particulars
as contained in letter dated January 16, 1992. By that
time Shyam Chand Patra died leaving his widow being
the writ petitioner herein. Shyam Chand Patra died on
December 13, 1991.
The writ petitioner, the widow of Shyam Chand
Patra approached the Central Government again by
requesting them to extend benefit to her in place and
stead of the deceased freedom fighter, her husband. The
said application of the writ petitioner was not considered
by the authority. She approached this Court and this
Court directed consideration of the matter. After the
order of the learned Single Judge the Central
Government by letter dated December 13, 1999
expressed their inability to extend the benefit to the
appellant on the ground that said Shyam Chand Patra
was not entitled to the benefit as available police records
did not show any record of political suffering of Shyam
Chand Patra.
The writ petitioner approached the learned Single
Judge once again by filing a second writ application. The
learned Single Judge directed the respondent authorities
to consider the issue afresh, upon submission of documents by the applicant as required in the letter dated December 13, 1999. The writ petitioner being aggrieved by and dissatisfied with the judgement and order dated July 30, 2003 passed by the learned Single Judge, on the second writ application, preferred an appeal. The Appellate Court after considering the entire matter was pleased to dispose of the said appeal thereby setting aside the order impugned passed by the learned Single Judge on 30th July, 2000. In the said judgement of the Hon'ble Division Bench it was observed that it is for the State Government to assist the Central Government upon verification of appropriate contemporaneous records. It was also observed that the learned Single Judge should not have directed the appellant, the widow, to produce the records which were not available for her, specially when Shyam Chand Patra is no more in this world. It was also directed that both the Central Government and the State Government are directed to file affidavit before the learned Single Judge by disclosing relevant records pertaining to the political suffering of Shyam Chand Patra, if any, so that conscionable justice could be done.
Thereafter, upon exchange of affidavits the matter was heard before another learned Single Judge of this Court. It appears from the orders that the Hon'ble Single Judge directed the Counsel appearing for the State respondent to produce the records and on the basis of the aforesaid order, records were produced and inspection was given to the learned Advocate appearing for the writ petitioner. The matter was finally disposed of upon hearing the respective Counsel appearing for the parties. While disposing of the said writ petition the Hon'ble Single Judge considered the death certificate of the petitioner's husband which indicated that the petitioner late husband was 60 years of age at the time of his death in December, 1991. Accordingly, if a calculation is made then the petitioner's late husband was about 11 years old at the time when it is claimed that he went underground. This raises a serious doubt as to whether the petitioner's late husband was remained underground as proclaimed offender or as one of whom an award for arrest/ head was announced or whether any detention order was issued against him. It was noted that there is no whisper in the writ petition about the actual age of the petitioner's late husband. Although in the affidavit-in-opposition it was pointed out that the petitioner's husband had been 10/11 of age at the material point of time, there was no express assertion with regard to the age of the petitioner's late husband even in the affidavit-in-reply. However, on that score the writ petition was rejected. Against the aforesaid order impugned the writ petitioner preferred an appeal before the Hon'ble Division Bench. The Hon'ble Division Bench after considering the entire matter set aside the order of the learned Single Judge and directed to hear the matter on merit without taking consideration any such objection about the age of the deceased. It was observed in the aforesaid Division Bench order that neither the State Government nor the Central Government had raised any objection in the correspondence went on, and no objection was raised about the writ petitioner's husband being a minor at the relevant time during freedom struggle, the learned Single Judge ought not to have rejected the application on the ground that the writ petitioner's husband was 11 years of age at the relevant point of time during the freedom struggle which was non- issue in the matter.
After the aforesaid order passed by the Hon'ble Division Bench the matter came up before this Court for final hearing and the matter was heard at length. Learned Counsel appearing for all the sides made their submissions.
Mr. Mukherjee, learned Counsel appearing for the writ petitioner submitted that the certificate issued by Rabindra Nath Giri is in the prescribed format and therefore, the said certificate ought to have been accepted by the authorities when no records were produced as per the Division Bench order. Adverse presumption should have been drawn against the respondents. He submitted that once the petitioner was granted "Swatantra Sainik Samman Pension", it cannot be withdrawn unilaterally without giving any opportunity of hearing which is violative of principle of natural justice and therefore the impugned letter asking the widow, writ petitioner, to produce the documents is an illegal and unfair on the part of the respondent authorities. He cited two judgements in support of such contention reported in A.I.R. 2002 Calcutta 162 and A.I.R. 1952 S.C. 16. He also submitted that it was the duty of the respondent authorities to produce the records which have not been done here in the instant case and therefore, the writ petitioner should be allowed to have the pension on the basis of the certificate issued by Rabindra Nath Giri which is a secondary evidence in view of the fact that the records relating to the primary evidence are not available with the respondents. He submitted that the certificate issued by Rabindra Nath Giri is a valid one and it was in a prescribed format which is the requirement under the scheme and therefore that certificate being a valid secondary evidence ought not to have been rejected by the respondent authorities. In support of his contention he referred a judgement delivered by the Hon'ble Division Bench of this Court rendered in case of Gajendra Manna vs. The State of West Bengal in M.A.T. No.552 of 2010. He also cited the case reported in 2001(7) Supreme 216 (Gurdlal Singh Vs. Union of India & ors.). He again relied on a judgement delivered by the learned Single Bench in the case of Gokul Chandra Panja Vs. Union of India & ors., reported in 1999(1) CLT (HC) 241.
Mr. Tapas Banerjee, learned Counsel appearing for the State Government submitted that pursuant to the order of the learned Single Judge on earlier occasion the entire records available with the State authorities were produced and inspection was given to them in presence of Mr. Banerjee which was recorded in the order-sheet of the learned Single Judge. It was submitted by Mr. Banerjee that on closed scrutiny of those records of the State Government the name of the husband of the writ petitioner was not found and therefore, the State authorities did not recommend the case for granting "Swatantra Sainik Samman Pension" in favour of Late Shyam Chand Patra. He submitted that the certificate which has been issued by Rabindra Nath Giri was in a cyclostyled form and issued frequently in favour of several persons and the State Government after coming to know about the abuse of such authority by the certifier reviewed all the cases and have decided not to accept such type of certificate as a valid secondary evidence even in case of the persons where the primary evidence is not available. He submitted that the present case is totally a different one. The records are available and the Magistrate who has issued earlier a certificate that the records are not available is not at all correct. The records are very much available but from the available records the name of the petitioner's husband is not available and therefore the State Government is not inclined to issue any recommendation in favour of the husband of the writ petitioner. He submitted, against the rampant issuance of the alleged certificates, there were matters fought by the State authorities before this Hon'ble Court. In one of such cases the Hon'ble Division Bench in the case of Union of India & anr. Vs. Prahlad Kumar Roy & ors., reported in 2010(2) C.H.N. (Cal) 776 have come to a conclusion that these types of certificate do not conform to the requirement of the scheme and in the eye of law no certificate in support of such cases. On the basis of the said judgement he submitted that in the present case the certificate should not be accepted as secondary evidence for granting "Swatantra Sainik Samman Pension" to the husband of the writ petitioner.
The learned Counsel appearing for the Union of India submitted that on behalf of the Union of India written notes of arguments was filed which is on record and the submission recorded therein should be considered by this Court. It was submitted that the writ petition was filed for release of pension under Swatantra Sainik Samman Pension, 1980 and rules framed therein on the basis of two pages cyclostyled letterhead, blank portion filled up by one Rabindra Nath Giri without disclosing and without annexing any supporting documents. The Rabindra Nath Giri, the certifier, had issued certificate indiscriminately to a large number of persons claiming pension without any record and in all such cases period of absence is same and ended at least three years prior, that is in the year 1944, to the date of independence and not valid any arrest warrant or conviction.
The eligibility criteria for pension has been laid down in the scheme for the purpose of grant of "Swatantra Sainik Samman Pension" and the husband of the writ petitioner did not fulfil any criteria mentioned in the scheme. It was submitted that large scale fraud has been brought into the knowledge of Hon'ble Supreme Court in the case of West Bengal Freedom Fighter Organisation Vs. Union of India & ors., reported in 2004(7) S.C.C. 716.
The Hon'ble Supreme Court observed in paragraph 13, which is quoted below :
" ............. it has been held that it is not for the court to scrutinize the documents. It is for the Government to scrutinize the documents and pronounce upon their genuineness." The Hon'ble Supreme Court was pleased to dismiss the writ petition which is based upon simple on personal knowledge certificate. Similar view was expressed in case of Union of India Vs. Bikash R. Bhowmik & ors., reported in 2004(7) S.C.C. 722.
As per Liberalized Pension Scheme the underground must after wanted by police or whom an award for arrest announced or on whom detention order issued should have disclosed the name of the Court or any other particular in that regard. The husband of the writ petitioner did not disclose the name of the Court which has issued such warrant or the case number in which the husband of the writ petitioner was involved or the particular section of Indian Penal Code or any statement under which allegations were levelled against the husband of the writ petitioner. The underground suffering for six months which is recognised as ground for grant of pension provided that the person should have gone underground only after he was wanted by police for his activities relating to National Struggle for freedom fighter should be a proclaimed offender or on whom an award for arrest was announced, on whom detention order was issued but was not served. The voluntary abscondance or issue of warrant on any other ground that mentioned in the scheme will not eligible for pension.
The husband of the writ petitioner did not abscond any further period from July, 1944 nor he was ever arrested, it means then there was neither any warrant nor any valid order for proclamation against the husband of the writ petitioner, neither any case was dropped either because the husband of the petitioner was wrongly impleaded or due to tender of apology by the husband of the petitioner. The husband of the writ petitioner did not fulfil the eligibility criteria for pension.
It was submitted that the alleged certificate given by Rabindra Nath Giri is not complete for the requirement of the scheme or the application of the husband of the writ petitioner was not supported by any proper disclosure in accordance with scheme. The State Government also refused to recommend the case of the writ petitioner. As per the principle laid down by the Hon'ble Supreme Court the writ petitioner is not entitled for any pension under Swatantra Sainik Samman Pension Scheme.
The husband of the writ petitioner did not fulfil or satisfy eligibility condition of minimum suffering of six months by way of imprisonment/ interinment/ exterment/absconding against any executive action of the then Government. It was contended that the Central Government never granted any "Swatantra Sainik Samman Pension" to the husband of the writ petitioner at any point of time. There is no such order either.
The learned Counsel Union of India referred a judgement rendered by this Court in the case of Bhim Charan Maity Vs. Union of India & ors. (W.P. No.14160(W) of 2000) wherein the learned Single Judge of this Hon'ble Court in its judgement dated 26th April, 2005 has observed that "In this case also a personal knowledge certificate on the basis of which the petitioner is praying for grant of Freedom Fighters' Pension has been given by R.N. Giri. According to the certificate issued by R.N. Giri a search warrant and warrant of arrest was issued against the petitioner and according to the direction of R.N. Giri the petitioner went underground from 2nd October, 1942 to December, 1945." It was submitted that the learned Single Judge did not accept such certificate as valid one. He also referred another unreported judgement in the case of Union of India Vs. Mohan Singh & ors. (Civil Appeal No.12314 of 1996). In that judgement the Hon'ble Supreme Court observed that " .....it is not possible for the court to scrutinize the documents which according to the petitioners they had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so."
It was again submitted by referring a judgement reported in A.I.R. 1995 Calcutta 336 (Chaitanya Charan Das Vs. State of West Bengal & ors.). The High Court in its judgement dated 16th May, 1995 has directed that -
" (a) Central Govt. is the ultimate authority and not bound to act mechanically on the basis of recommendation, of the State Advisory Committee hereinafter referred as (SAC) or the State Govt.
hereinafter referred as (SG);
(b) It was open to the authorities to take a stand that the claim of the applicant is contrary to the records and thus the Personal Knowledge Certificates hereinafter referred as (PKC) issued by a known freedom fighter should not be relied upon. There cannot, however, be any doubt that presumption of correctness is attached to such certificates. The Central Govt. evidently thought while framing the scheme that the certificates granted by the known freedom fighter can be relied upon. In fact initially such certificates have been relied upon but later it was found that PKCs were being granted indiscriminately. Moreover, the State Govt. as also the Central Govt. had come across various cases where such certificates were vague and did not depict the correct state of affairs. The State Govt. and the Central Govt. had come across a large number of cases in which false and/or fraud certificates had been produced. Most of the certificates were in printed form and only blanks had been filled up. Another unreported judgement cited by the learned Counsel being M.A.T. No. 3928 of 1997 (R.N. Sharma Vs. Gokul Chandra Panja). The Hon'ble Division Bench of this Court inter alia, observed that "It is true that the recommendation was made by the State Government but that recommendation is not binding upon the Central Government. The nature of the recommendation is always directory. Recommendations made to the Central Government and not to the Court. When recommendation is made by the State Government it is up to the Central Government to cancel or to reject the same.
He also cited a judgement of the Hon'ble Supreme Court in the case of Union of India Vs. R.V. Swamy @ R. Vellaichamy, (SLP (c) No.19596 of 1996). The Hon'ble Supreme Court has observed that " .... of late, large number of cases have been coming up quite frequently for grant of Freedom Fighters' Pension on the basis of certificates issued by some persons with status of freedom fighters and are by and large not found to be acceptable to the Government of India. Since several matters are coming up to this Court, it is for the Government of India ton re-consider the matter and to lay down appropriate and clear guidelines for the so- called freedom fighters who issued certificates for freedom fighters' pension ....."
Another Division Bench judgement rendered by the learned Counsel in the case of Sakti Bala Samanta Vs. Union of India & ors., reported in 2000(1) C.L.J. 572. In that judgement Their Lordships Hon'ble Justice Satyabrata Sinhe and Hon'ble Justice Pratap Kumar Ray observed that -
".......... it provides that in case of underground sufferings internment/exterment which are not based on official records the matter should invariably be placed before the State Advisory Committee. The recommendation of the State Govt. along with the extract of the proceeding of the State Advisory Committee should be forwarded to the Ministry for further consideration.
A bare perusal of the said Scheme and/or the guidelines issued by the Central Govt., in my opinion, do not leave any manner of doubt whatsoever that the Central Govt. is the ultimate authority in the matter of grant of pension and it is entitled to satisfy itself about the genuineness of claim of the concerned applications.
In other words, the Central Govt. is not bound to act mechanically only on the basis of recommendation of the State and/or the Advisory Committee..........."
In the case of Union of India vs. Thakurendra Nath Roy & Ors., the Division Bench of the Hon'ble High Court, Calcutta, (comprising of Hon'ble Justice Mukul Gopal Mukherjee Hon'ble Justice Mitra) in the judgment dt. 06.12.94 (Appeal No.....of 1994) [Matter No.1941 of 1993] has observed that "....................a Division Bench of our High Court has already clarified that despite the recommendation of the State Govt., the Govt. of India was free, to come to an independent decision of its own and there is no hard and fast rule that just because the State Govt. has recommended the case, the Govt. of India is bound to accept the same as final. It is also a settled principle of law that when a particular authority has been vested with the jurisdiction to take a decision on the basis of another recommendatory authority, the decision making authority must apply its own mind and come to a judgment of its own, keeping in view the recommendation of the recommendatory authority. The decision making authority should not substitute its own judgment for the recommendation of the recommendatory authority itself...."
In the Appeal (FMA No.337 of 2006 and MAT No.4492/2005 titled UOI Vs Smt. Suvadra Bala Paul) a Division Bench of the Hon'ble High Court, Calcutta, (comprising of Hon'ble Justice Bhaskar Bhattacharya and Justice Prabuddha Sankar Banerjee) in its judgment dt. 07.08.06 made the following observations:-
"..........if a person comes forward with an absurd case supported by an evasive certificate not in conformity with the scheme authorizing the grant of pension and such defect in the application or the certificate escaped the notice of the Government at the earlier stage, the applicant cannot take advantage of the mistake of the Govt. by raising the plea of estoppel by earlier erroneous decision or the principle or res judicata. An applicant for the freedom fighter's pension should at all material times be answerable to any legitimate query of the Government justifying his claim, if occasion so arises."
"................ Voluntary abscondance for the causes other than the ones mentioned above will not make a person eligible for pension. Furthermore, it must be shown that the applicant did not secure reprieve on account of any oral or written apology tendered by him. the liberalized pension scheme, however, provides that with effect from August 1, 1980, in the absence of official records because of their non-availability, the certificate issued by a certifies who had undergone a minimum imprisonment for two years in connection with the National Freedom Struggle may be accepted as a proof of the fact of abscondence for the purpose of the said scheme."
"................the Central Govt. is entitled to reject such certificate if other contrary evidence is available falsifying the claim of the applicant or the contents of the certificate. Similarly, there may cases where on the basis of the averment made in the application itself, the claim of the applicant may be shown to be apparently an absurd claim and in such cases, those applications deserve outright rejection notwithstanding the fact that these are supported by the certificates of co-freedom fighters."
"................If a person is in jail, he cannot certify true to his knowledge where 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 one or based on hearsay evidence."
".................the certificate given by Rabindra Nath Giri had not complied with the requirements of the scheme and the fact certified therein was otherwise absurd and it must be held that the application was not supported by an appropriate certificate in accordance with the scheme."
In another matter of Sumitra Patra Vs UOI & Ors (W.P. No.7934 (W) of 2000) Learned Single Judge of the Hon'ble High Court, Calcutta, in the judgment dt. 26.04.05 has observed that "............I find in the instance case the entire claim of the petitioner's husband is based on the personal knowledge certificate given by R.N. Giri who is clearly guilty of issuing indiscriminate personal knowledge certificates. There is nothing on record to show apart from the printed cyclostyled certificate that the said R.N. Giri had any personal knowledge about the petitioner's husband or his family in any manner whatsoever. After having come across number of such personal knowledge certificate issued by one person, I cannot help but take judicial notice of the same and I think it would be improper on my part if I totally ignore the fact that all these personal knowledge certificates are issued by one or few persons. In fact, the initial eligibility criteria of such persons who would be issuing personal knowledge certificate was suffering of minimum 5 years imprisonment but this was subsequently relaxed to 2 years. It is unbelievable that the concerned district or the locality will have no other freedom fighter with such credentials who could issue personal knowledge certificate other than those persons on whose certificate the petitioner and other alleged freedom fighters had relied upon.
In the case of Sakti Bala Samanta Vs Union of India by judgment dated 28th November, 2000, a Division Bench of this Hon'ble Court after examining many decisions on this issue has held that the Central Govt., is the ultimate authority in the matter of grant of pension and is also entitled to satisfy itself about the genuineness of claim of the concerned applicants, and is not bound to act mechanically on the basis of recommendation of the State and/or the Advisory Committee."
In the instant case the State Govt. had refused to recommend the case of the writ petitioners.
In the case of Modem Food Industries (India) Ltd. & Anr. Vs Sachidanand Dass & Anr. (Civil Appeal No.3932 of 1992) Hon'ble Supreme Court in its judgment dt. 21.09.92 has observed that "it will be appropriate to take up for consideration the prayer for stay either earlier or at least simultaneously with the complaint for contempt. To keep the prayer for stay standby and to insist upon proceeding with the complaint for contempt might in many conceivable cases cause serious prejudice."
Heard the learned Counsel appearing for all the sides and considered the materials available on record as well the decisions cited at the Bar.
It appears from the certificate issued by R.N. Giri which was in cyclostyled form, the husband of the writ petitioner, a 'proclaimed offender', and to the best of knowledge of said R.N. Giri, he did not secure reprieve on account of any oral and written apology tendered by him. He also went underground neither of his own accord nor for fear of police torture but exclusively in continuance of his service to the country under the guidance of R. N. Giri.
As per liberalized pension scheme underground should be after wanted by police or whom an award for arrest announced or on whom detention order was issued. There is nothing on record which disclosed that the husband of the petitioner has ever stated the name of the Court or anything in that regard. There is no disclosure that which Court has issued such warrant or the case number in which the husband of the petitioner was involved or the particular section of Indian Penal Code or any statement under which allegations were leveled against him. The underground sufferings have six months which is recognised as ground for grant of pension, provided that the persons should have gone underground only after he was wanted by police for his activities relating to national struggle for freedom fighter, should be a proclaimed offender or on whom an award of arrest was announced or on whom detention order was issued but was not served. The voluntary abscondance or issue of warrant on any other ground that mentioned in the scheme will not eligible for pension.
The husband of the writ petitioner was never arrested. It means there is no warrant of arrest nor any valid order of proclamation against the husband of the petitioner. Neither any case was dropped either because the husband of the writ petitioner was wrongly impleaded or due to tender of apology by the husband of the writ petitioner the case was dropped.
It is settled principle of law that the person is declared as proclaimed offender by Court in accordance with the provisions contained in the Code of Criminal Procedure and is preceded by issue of warrant and is consequent to abscondance or concealment of such person with an intention that such warrant cannot be executed. Such proclamation continues so long such person is not arrested. Such proclamation may, however, ceased to have any effect if the criminal case in which such warrant was issued is ultimately dropped in the absence of any material against such person or reprieve is given to such person after acceptance of apology.
It appears from the certificate that the husband of the petitioner went underground exclusively under guidance of said R.N. Giri. There was no proclamation against the husband of the petitioner. There is no particulars in that regard. If someone went underground under guidance of R. N. Giri, he cannot be a proclaimed offender nor it fulfills the conditions of the scheme "Swatantra Sainik Samman Pension".
In this case as it appears from the certificate it was certified that the husband of the writ petitioner remained absconding for a period starting from October, 1942 to 25th July, 1944 as a 'proclaimed offender'. Thus it appears that he did not abscond any further period from August, 1944 nor he was ever arrested, even if it is accepted that such case to be true for the sake of argument the only conclusion that emerges out that from August, 1944 there was neither any warrant nor any valid order of proclamation against him as the said case was dropped either because he was wrongly impleaded or due to tender of apology by the husband of the writ petitioner, he was given reprieve.
In such circumstances, the applicant was not entitled to get the pension. However, in a Division Bench judgement of this Court delivered in case of Union of India Vs. Prahlad Kumar Roy (supra) it was held that these types of certificate issued by the certifier do not conform requirement of the scheme and therefore on that basis liberalized pension cannot be granted to the husband of the writ petitioner and therefore, the writ petitioner is also not entitled to get the benefit.
In that judgement it was held that although the writ petitioner has been described as proclaimed offender yet the certifier deleted two clauses in the printed certificate that "(II) he was one on whom an award of arrest was announced; (III) one for whose detention orders were issued, but he evaded arrest". The certifier was not prepared to vouch for the writ petitioner as true to his knowledge and he did not secure reprieve by tendering any apology and such assertion "to the best of his knowledge and belief" is in the eye of law no certificate in support of such case. In the present case also the two clauses (II & III) as mentioned hereinabove and also (b) was struck down and the certificate was issued to best of the knowledge and belief of the certifier and therefore, the certificate does not conform to the requirement of the scheme. On that score the claim of the husband of the writ petitioner fails and he does not deserve "Swatantra Sainik Samman Pension" and "Tamrapatra" as per the scheme. Thus the claim on the ground of secondary evidence in case of non-availability of records fails and the writ petition should be rejected.
Although the plea of acceptance of secondary evidence was not accepted by this Court on any occasion, this Hon'ble Court on all occasions directed to consider the records, the primary evidence and to find out if the name of the husband of the writ petitioner is featuring there. It appears from the available records which was produced before the Court that the name of the husband of the writ petitioner is not there and therefore, his claim could not be entertained even on the ground of the availability of primary evidence.
In my opinion, the husband of the writ petitioner does not fulfil any of the criteria for granting "Swatantra Sainik Samman Pension" and therefore the concerned respondents have rightly rejected his claim. It would be worth mentioning the issue settled in case of West Bengal Freedom Fighters' Organisation Vs. Union of India & ors. wherein the Supreme Court held that it is not for the Court to scrutinise documents, it is for the Government to scrutinise the documents and pronounced upon their genuineness. The Hon'ble Supreme Court also pleased to dismiss the writ petition which is based upon simply on personal knowledge certificate.
In my opinion, if a person coming forward with an absurd case supported by an evasive certificate not in conformity with the scheme authorising the ground of pension and such defect in the application or the certificate escaped the notice of the Government on an earlier occasion, the applicant cannot take advantage of the mistake of the Government by raising a plea that earlier occasion the decision was taken in favour of the claimant. In my opinion, the Government and or the concerned respondents have their authority to change their decision on valid ground. However, in the instant case, nothing is on record nor anything was produced before this Court from which this Court can come to a conclusion that there was a decision earlier in favour of the husband of the writ petitioner by the Central Government wherein the husband of the writ petitioner was declared as a freedom fighter or he is entitled to get freedom fighter pension and therefore, the question of changing such decision and/or giving an opportunity of hearing, as claimed by Mr. Mukherjee do not find any justification either.
In my view, the alleged plea of violation of principle of natural justice is not at all attracted nor there is any question of unilaterally withdrawal of any decision of any authority is involved. In my view, the judgement cited by Mr. Mukherjee is not at all attracted and therefore, the plea of violation of principle of natural justice is also rejected by this Court.
I do not accept the submission of Mr. Mukherjee that no record was produced before this Court but I find some records which are available was produced by the State respondent and inspection was given to the parties. From the available records the name of the husband of the writ petitioner is not written. Therefore, question of drawing any adverse presumption also do not arise in the instant case. It was claimed by Mr. Mukherjee that the certificate given by the freedom fighter concerned, R.N. Giri, is in prescribed form. I do not agree with that submission. The prescribed form do not stipulate that if the applicant went underground on his own or on the advice of the certifier, he is entitled to be a proclaimed offender as certified by the certifier. It appears from the certificate that the husband of the petitioner went underground under guidance of R.N. Giri :-
".... But exclusively for continuance of his service to the country under my guidance", which is not there in the prescribed form.
In my view, this type of certificate should never be accepted in granting "Swatantra Sainik Samman Pension" and "Tamrapatra".
On the aforesaid ground, I do not find any merit in the instant writ petition.
This writ petition is rejected. There would be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
(Ashoke Kumar Dasadhikari, J.)