Smt. Atul Bala Maity vs The Union of India and Others

Prabuddha Sankar Banerjee, J.—This appeal is at the instance of an unsuccessful writ-petitioner claiming freedom-fighter''s pension wherein he challenged the order dated 10th December, 2004 passed by the Under Secretary to the Government of India by which the claim for freedom fighter''s pension was turned down. The learned Single Judge decided not to interfere with the detailed reasons given by the respondent no. 2. Hence, the appeal. In the present case also, the original applicant claimed that he was neither imprisoned nor was he tried in any case nor awarded any sentence but went underground and absconded for more than one year from October, 1942 to November, 1943. In the body of the application, however, he neither claimed to be proclaimed offender nor did he assert himself to have fallen under the other two categories required for getting benefit of underground for more than six months. However, in the certificate attached to the application by a co-freedom fighter, namely, one Jyotish Chandra Bera, it was stated that he was a proclaimed offender and remained underground from October, 1942 to November, 1943. In another place of the same certificate, the period of underground was certified to be from November, 1942 to December, 1943. However, in this case also the certifier himself was arrested in May or June, 1942 and was detained up to the end of 1945. Therefore, the certifier, namely, Jyotish Chandra Bera could not certify that he was underground during the aforesaid period as indicated in the pervious case. Moreover, the certifier certified that the applicant was a proclaimed offender although in the body of the application the applicant did not claim to be a proclaimed offender. We have already pointed out that in order to be a proclaimed offender there must be a pending case, otherwise, the court cannot declare a person as a proclaimed offender; but in the body of the application no reference of any case number has been given.

Subsequently, the applicant relied upon another certificate given by one Jiban Krishna Chakraborty, another co-freedom fighter; he also certified that the applicant remained underground from November, 1942 to December, 1943 but in the said certificate all that was certified was that the applicant joined National Congress in 1942 and was involved in Quit India ovement and in many subversive activities, like, road-cutting and Government-office-burning etc. It is further stated in certificate that due of his work, the police tried to arrest him again and again but he fled away from his house to avoid arrest. The respondent no. 2 refused to take into account the said certificate as the same was not in conformity with the form prescribed in the scheme and the certifier himself did not give details of his suffering so as to enable him to give such certificate. The certificate does not contain any statement that the applicant never prayed for reprieve.

In course of investigation, a summons u/s 68 of the Code of Criminal Procedure was produced in support of his claim that he was involved in a criminal case. The said summons, however, disclosed that a case u/s 379 of the Indian Penal Code was initiated against him and for that reason, he was required to be present in court. The respondent no. 2 did not rely upon such summons as the same was in distorted condition. Subsequently, another certificate by another co-freedom-fighter was also relied upon certifying that he was a proclaimed offender. The third certifier also described the period of abscondence from November, 1942 to December, 1943 whereas the applicant claimed to have absconded from October, 1942 to November, 1943.

On taking into consideration all the aforesaid facts, for the selfsame reasons indicated in the earlier appeal, we are of the view that the case made out by the applicant cannot be believed as there is no explanation why he did not remain underground further from November, 1943 and nevertheless was not arrested.

Moreover, the certificates are also conflicting find not in terms of the scheme, as pointed out earlier. In the third certificate also, the certifier has not taken the responsibility of vouching that the applicant did not pray for reprieve.

In this appeal Mr. Bhattacharya, the learned advocate appearing on behalf of the appearing on behalf of the appellant relied upon three decisions; one in the case of Kalipada Das vs. Union of India & Ors., reported in (2004) 1WBLR (Cal) 256, the second one, an unreported one by a Division Bench in appeal from Original Order Tender No. 2823 of 1993 disposed of on 14th September, 1994 and the third one, in the case of Gurdial Singh Vs. Union of India and Others, .

In the case of Kalipada Das (supra), the applicant claimed that he was a proclaimed offender and went underground in October, 1942. Two certifiers had certified that the petitioner remained underground for over a year and the records revealed that the petitioner was convicted and sentenced from 29th March, 1943 to 28th December, 1943. In such circumstances, the learned judge was of the view that there might be minor discrepancies in dates in respect of the period during which the petitioner might have remained underground but such discrepancies were immaterial and could not defeat a claim for pension. In paragraph 41 of the judgment, the learned, judge held that a person convicted of an offence by a court of law is a proclaimed offender within the meaning of the scheme. With great respect to the learned judge, we are, however, unable to subscribe to the aforesaid view. The learned judge further found that the Government of India in the said case found on enquiry that there was an order of conviction against the petitioner from 29th March, 1943 but the petition did not surrender. In our view, the fact of the said case is quite different from the present one where there is no conviction against the applicant. We, thus, find that the said decision cannot help Mr. Bhattacharya''s client in any way.

In the unreported case of the Division Bench relied upon by Mr. Bhattacharya, the State Government recommended the case of the writ-petitioners but the Union of India did not accept the recommendation and it was contended that Union of India was bound by the recommendation of the State. The learned advocate appearing on behalf of the Union of India contended that such recommendation was not binding upon the Union of India. The Division Bench did not answer such question but held that assuming that the learned Judge wrongly remarked that the report was binding upon the Union of India, in the fact of the said case, the appellant proved their entitlement. In our view, in the said decision no law has been laid down which can help Mr. Bhattacharya''s client in any way.

In the case of Gurdial Singh vs. Union of India & Ors. (Supra), we have already pointed out that the Supreme Court merely stated that the standard of proof required for a criminal case or in a contested case adjudicated upon the rival contentions cannot be applicable to the fact of the case of the present nature. We have already pointed out in the earlier judgment that the principle laid down in Gurdial Singh''s case (supra) cannot be extended to such extent so as to accept an absurd case as genuine one or where the certificate did not confirm to the requirements of the scheme.

We, thus, find that the decisions cited by Mr. Bhattacharya are of no avail to his client. Therefore, in this case, respondent no. 2 rightly disbelieved the certificates of the certifiers which were not in conformity with the scheme and as such, there is no valid ground of interference. Moreover, we have already pointed out that the case made out by the applicant is an absurd case.

The appeal is, thus, devoid of any substance and is dismissed accordingly. In the facts and circumstances, there will be, however, no order as to costs.

Prabuddha Sankar Banerjee, J.

I agree.