Dhirendra Ch. Roy vs Union of India (UOI) and Another

P.C. Phukan, J.—Only last year we concluded celebration of the Golden Jubilee of Indian Independence. This writ petition takes us back to the Silver Jubilee year of our independence when to mark the occasion the Government of India introduced a scheme called Freedom Fighter''s Pension Scheme, 1972 commencing on the 15th August, 1972 to grant pension to the freedom fighters as a token of honour from a grateful nation.

Under the above Scheme, the Petitioner was granted freedom fighter''s pension by the Central Government letter dated 11.3.75 (Annexure-5), the relevant portion of which reads as under:

I am directed to refer to your application on the above subject and to say that the President of India has been pleased to sanction pension of Rs. 200/- (Rupees two hundred only) per month to you, on provisional basis with effect from 15th August, 1972. The pension of Rs. 200/- (Rupees two hundred only) per month will be for your life time. This pension will be subject to review by the President. In particular, it is liable to cancellation or modification without any notice if it is found that it was sanctioned on mistaken grounds of on false information.

The Petitioner was drawing his monthly pension granted to him with effect from 15th August, 1972 till he received the following letter dated 3.3.1976 (Annexure-8) from the Government of Tripura:

You are hereby asked to produce jail certificate or co-prisoner''s certificate from M.P., Ex-M.P., M.L.A. or Ex-M.L.A. for the imprisonment undergone with him for a period of not less than six months. Pending production of the relevant documents by you, your pension is suspended with immediate effect until further orders.

In his reply dated 26.4.76 (Annexure-11), the Petitioner said that at that belated stage it was not possible to procure a certificate from Dacca Jail in Bangladesh where he was imprisoned and that he did not remember whether any of his political co-prisoners subsequently became MLA or MP.

The Petitioner thai received the Central Govt. letter dated 20.7.1978 (Annexure-9), the relevant portion of which is extracted below:

Relevant documents were not produced by the applicant as such the pension has been suspended on State Government''s report.

The pension of Rs. 200/- p.m. provisionally sanctioned to the applicant vide this Ministry''s letter No. 30/1/Genl/75.EZ I dated 25.2.75 is hereby suspended, pending inquiiy.

The applicant Shri Dhirendra Chandra Roy is hereby given an opportunity to represent as to why the provisional pension so granted to him should not be cancelled on the above mentioned grounds....

XXXXXXXXXXXX 6. The application is hereby required to reply to this show cause notice within a period of 21 days....

Within eight days the Petitioner sent his reply dated 28.7.1976 (Annexure-11) enclosing therewith copies of all the documents he sent with his origmal application to the Central Government for pension and referred to his affidavit, the Certificate of Tripura Administration and the certificate of the former Finance Minister, Tripura that he was imprisoned in Dacca Jail in 1941 for 10 months for his participation in the freedom movement (for offering Satyagraha before excise shops and shops of foreign goods). In that letter, he further requested the Central Government to restore his pension without any break.

Then came the letter dated 1.12.1977 (Anexure-10) from the Central Government informing the Petitioner that:

On review the President is pleased to cancel the pension of Rs. 200/- (Rupees two hundred only) p.m. with retrospective effect.

Being aggrieved, the Petitioner has come up before this Court with the instant writ petition paying that State Government''s order dated 3.3.76 (Annexure-8) and Central Government''s order dated 20.7.76 (Annexure-9) suspending his pension and Central Government''s letter dated 1.12.77 (Annexure-10) cancelling his pension be set aside and his pension be restored without any break.

The Respondent No. 2 State of Tripura filed an affidavit-in-opposition. The Respondent No. 1 Government of India filed no affidavit-in-opposition.

I have heard Mr. A.L. Saha, learned Counsel for the Petitioner, Mr. K.N. Bhattacharjee, learned Sr. Central Govt. Standing Counsel for the Respondent No. 1 and Mr. P. Deb Roy, learned Govt. Advocate, appearing for the Respondent No. 2 the State of Tripura.

The first question on which elaborate arguments have been addressed by Mr. Saha, learned Counsel for the Petitioner, is the long delay in filing this writ petition. There being no law of limitation to fetter the writ jurisdiction of this Court under Article 226 of the Constitution, mere delay cannot be a ground for refusing a writ where such delay is satisfactorily explained. In paragraph 14 of the writ pettion, it is stated that "the delay, if any, in moving this petition is due to the fact that he has always legitimately expected that as per the decision of the Hon''ble Supreme Court of India in Writ petition (Civil) No. 413 of 1987 the Respondents would restore the pension of the Petitioner. The Petitioner has also persuedthe matter but could not approach this Hon''ble court owing to his heart stroke, partial paralysis and financial weakness." SignificanUy, both the Respondents have not denied these averments of the Petitioner. In fact, the Respondent No. 2 the State of Tripura have expressly said that they do not deny these averments of the Petitioner vide paragraph 15 of their affidavit-in-opposition. Doctor''s prescriptions and discharge ceitifiatt from hospital have been furnished to show that the Petitioner was at relevant time suffering from heart stroke and partial paralysis. There is also a State Government''s letter dated 11.4.91 (Annexure-R-9) showing that as late as April 1991 the Tripura Govt. Advised the Petitioner to approach the Government of India to take any decision m the matter. It has been held in P.C. Sethi and Others Vs. Union of India (UOI) and Others, that the delay cannot be a bar where the Government have been holding out hopes to the Petitioner from time to time. In this case this Court first issued a Notice of Motion calling upon the Respondents to show-cause as to why a writ should not be issued,and then after hearing the learned Counsels for the Petitioner and the Respondents, this Court issued a Rule and now at the hearing stage I would not throw out this petition on the ground of delay in the facts and circumstances of this case as stated above.

Now, I come to the merit of this writ petition. In paragraph I of the petition, it is stated, "the Petitioner, presently aged about 74 (seventy four) years and Ex-Freedom Fighter, was sanctioned pension under Freedom Figihters'' Paision Scheme, 1972. The Petitioner files this writ petition challenging the orders by die Respondents suspending and cancelling his pension without first telling him the reasons and without hearing his defence or explanation." "The Respondent No. 2 State of Tripura in Paragraph 6 of their affidavit-in-opposition says that "the averments made in paragraph 1 of the writ petition are substantially true." The Respondent No. 2 thus admits that the Petitioner was a freedom fighter and that his pisnsion was cancelled without hearing his defence or explanation. It is true that the Petitioner was served with a show-cause notice and he sent reply showing causes. But the notice to show cause and the reply showing causes constitute, the pleadings ,and only after such pleadings are complete, the actual enquiry starts. In this case after receiving the reply of the Petitioner showing causes, the Respondents No. 1 the Central Government does not appear to have made any enquiry. Despite several chances given, the Respondent No. 1 did not file any affdavit-in-opposition or produce any record to show that did make sudienquiiy. Thus the impugned order dated 1.12.1977 (Annexure-10) passed by the Respondent No. 1 cancelling the pension, once granted, without any inquiry worth the name is bad in law. On this score alone, this order along withthe State Government''s order datcid 3.3.1976 (Annexure-8) and the Central Govt''s order dated 20.7.1976 (Annexure-9) suspending the pension are liable to be set aside.

There are other grounds also. The Pension Scheme of 1972 does not provide for cancellation of poision, once granted. Howevor, the Presidential Order dated 11.3.1975 (Annexure-5) itself says that "it is liable to cancellation or modification with any notice if it is found that it was sanctioned on mistaken grounds or on false information." Here it is no body''s case that the Petitioner''s pension was cancelled on either of these two grounds. As a matter of fact the impugned order dated 1.12.1977 (Annexure-10) does not disclose any ground whatsoever.

There is not whisper anywhere that the information furnished by the Petitioner that he was imprisoned in Dacca Jail in 1941 for 10 months for his participation in freedom movements is false. The only plea of the Respondents is that the Petitioner could not furnish "jail certificate or co-prisoner''s certificate from MP, Ex-MP, MLA or Ex-MLA" in support of the information he furnished. But production of any of these certificates is not compulsory under the Freedom Fighter''s Pension Scheme, 1972 (Annexure-R/1) (modified Scheme of 1980 is not applicable in instant case), the relevant portion of which is extracted below:

Persons eligible for pension under this scheme should apply, in duplicate....One from duly filled in supported by an affidavit duly sworn in should be sent to the Secretary,

Ministry of Home Affairs, New Delhi and the second copy to Chief Secretary to the State Govt./UT concerned.

It will lead to expeditious finalisation of the cases if the application also furnish the documents shown against each category detailed below:

Certificates from Jail authorises or State Government or the District Magistrate.

Where certificate of imprisonment are not available due to records being destroyed etc. an affidavit by the applicant about his imprisonment supported by a certificate from an MP or an Ex-MLA who had been in Jail with him specifying the period of imprisonment would be accepted.

It a freedom fighter who suffered imprisonment in areas now forming part of the Pakistan and Bangladesh is unable to furnish certificate, he may send an affidavit in support of his imprisonment along with a certificate from an MP or Member of State Legislature or an Ex-MP or an Ex-MLA who had been in Jail with him.

(Emphasis supplied).

It is absolutely clear from the above that fiunishing a duly filled m form and a supporting affidavit are the only requirements for granting pension. Other documents referred to above, if furnished, could have led to expeditious finalisation of such pension cases. Hence the Petitioner''s pension, once granted, could not have been cancelled on the gromd of non-production of such documents, viz. "Jail certificate or co-prisoners certificate from MP or Ex-MP or MLA or EX MLA" especially in view of the fact that the Petitioner furnished the duly fill in form with supporting affidavit and certificates from the SDO (Civil) or Tripura Government, former, Finance Minister of Tripura and non-MLA/MP co-prisoners specifically stating that he was imprisoned in Dacca Jail in 1941 for 10 months for his participation in Freedom Movement. In this regard, Mr. Saha, learned Counsel for the Petitioner refers to the decision in Birendra Ch. Saha and Ors. v. Union of India and Ors. writ petition (Original) No. 413/87 (Annexuie-12) where in it has been held:

Under 1972 pension Scheme for Freedom Fighters the 7 Petitioners before were granted pension, but after a couple of years that pension was stopped on the ground that they did not produce co-prisoner certificate from Member of Pariiament or Member of Legislative Assenbly or from Ex-MPs or Ex- MLAs specifying the jail period. The Petitioners certificate however have been produce in this case collectively under Annexure-11. All the Certificate indicates duit they have suffered imprisonment for the required period in connection with the C.D. Movement. There is no counter affidavit filed in Ms writ petition inspite of repeated opportunity afforded to the Respondents and despite last opportunity granted order dated 10th September, 1990 ...we have heard counsels on both sides and also perused relevant certificates produced by the Petitioners. In the absence of the specific countar-affidavit, we are inclined to believe the averments of the Petitioners. However the Petitioners were allowed to draw pensoin for a couple of years under die 1972 Scheme'' and we fail to see why they should be deprived of the benfits subsequoatly. In the result we allow the writ petition and direct the Respondents to continue to pay to the Petitioners the pension that they are legitimately entitled to form the date on which it was interrupted. Arrears to be paid within three months. (Emphasis Supplied)

In this case also, under 1972 Pension Scheme for Freedom Fighters'' the Petitioner was granted pension with effect from 15.8.1972 and was allowed to draw such pension till the State Government by letter dated 3.3.76 (Annexure-8) suspended the said pension on the ground that he did not produce the co-prisonor''s certificate from sitting or Ex-MP or MLAs. In this case also the Petitioner has produced affidavit and other documents as stated above indicating that the had suffered imprisonment for the required period in connection with file C.D. (Civil Disobedience) Movement. Respondent No. 1 Central Government did not file any counter affidavit deqnte repeated opportumties afforded to them vide this Court''s order dated 10.3.98, 22.4.98, 25.5.98, 13.7.98 and 22.7.98. In view of what has been stated above, I find no reason to disbelieve the averments of the Petitioner.

In the result, the impugned orders dated 3.3.1976 (Annexure-8) and order dated 20.7.76 (Annexure-9) suspending the Petitioner''s pension and Central Govt''s letter dated 1.12.1977 (Annexure-10) cancelling file Petitioner''s pension are hereby set aside. The Respondent are directed to restore the pension to the Petitioner with effect from the date of suspension. The Respondents are further directed to pay the arrear within three months.

This petition is allowed accordingly. No costs.