Smt. Prajapati Mishra vs Union of India and Others

Sambuddha Chakrabarti, J.—The petitioner states that her deceased husband late Ratan Chandra Mishra was a freedom fighter and took active part in the movement. He remained underground for a period of more than six months as an Order of Proclamation was issued against him. Pursuant to the scheme framed by the Government of India the husband of the petitioner submitted an application on March 12, 1982 for the grant of freedom fighter''s pension.

That in terms of the provisions of the relevant Scheme in the case of a claim of an applicant who had remained underground documentary evidence by way of court''s/government''s orders proclaiming the applicant as a offender, announcing an award on his head etc. were required to be furnished. But if the official records were not forthcoming due to their non-availability certificates from veteran freedom fighters who had themselves undergone imprisonment for five years or more could also be furnished. The petitioner states that the District Magistrate, Midnapore had notified to the effect that there were no records commencing from 1930 to 1946 recording the sufferings of freedom fighters and since the period when the petitioner''s husband remained underground fell within the period he had to file the application along with the certificate of Sri Nitai Chandra Jana who himself was a freedom fighter.

In August, 1986 the Ministry of Home Affairs, Government of India, had intimated the petitioner that his application for Swatantrata Sainik Samman Pension (the said Pension, for short) could not be considered as the documentary/supportive evidence sent by him did not prove his claim of suffering.

Subsequently the Deputy Secretary, Home (Poll-PSP) Department, Government of West Bengal had intimated the petitioner by a communication dated May 23, 1990 that his case could not be recommended to the Government of India as the evidence furnished by him was not acceptable as he was unknown to the certifier during confirmation.

The petitioner''s husband by a letter dated November 24, 1993 had again submitted the certificate of Sachidananda Bera and an affidavit duly sworn before the Judicial Magistrate, First Class, Tamluk as evidence of his sufferings.

Subsequently after the death of her husband the petitioner by a letter dated August 22, 1994 submitted the claim to the Under Secretary to the Government of India, Ministry of Home Affairs, Freedom Fighters Division, New Delhi, to review the claim for the grant of the family pension in her favour.

The petitioner subsequently made yet another representation to the Deputy Secretary, Government of West Bengal, Home Political Department for reconsideration of the case and sent with the said representation a letter of confirmation from Netai Chandra Jana. The said certifier by a certificate dated December 5, 1994 had again certified that the deceased husband of the petitioner had taken part in the Quit India movement in 1942 and that he remained underground from October, 1942 to May, 1943. By this certificate Sri Jana once again confirmed the previous certified issued by him.

Since the petitioner has not heard anything for a long time she has filed the present writ petition inter alia praying for a writ in the nature of Mandamus commanding the respondents to consider her prayer for the grant of pension after setting aside the impugned memo which ahs been annexed to the writ petition as Annexure P-4.

The respondents Nos. 1 to 3 have contested this petition by filing an affidavit-in-opposition. It is their case that as per the provisions of the relevant Scheme the applicant is to furnish documents from the government authorities and in case the record is not available a certificate from the state government to that effect accompanying a certificate from two such freedom fighters of the same area were to be furnished. According to the respondents the petitioner had not produced the official records nor any certificate from the state government as to non-availability of the records. The certificate produced by the husband of the petitioner was basically a personal knowledge certificate from Sri Netai Chandra Jana. This certificate too was not acceptable as the certifier could not recognize the petitioner while enquiry was made to him. They have prayed for the dismissal of the writ petition as the applicant had failed to comply with the requirements under the provisions of the relevant Scheme.

It has already been seen that the relevant Pension Scheme of 1980 provided for the method of proving the claim and the nature of evidence required. In the case of remaining underground in the absence of the original records certificate from veteran freedom fighter who had himself undergone imprisonment for five years was an alternative document on which the state government could rely. It appears that after the state government had intimated the petitioner''s husband that his case could not be recommended the petitioner''s husband had furnished another certificate from Sachidananda Bera and subsequently the petitioner also produced a certificate of confirmation from Netai Chandra Jana.

The affidavit of the respondents Nos. 1 to 3 are silent about these documents. On the other hand it merely reiterates what was intimated to the petitioner by way of an official communication. But the fact of subsequent application has been mentioned in the writ petition and in spite of it the said respondents have not dealt with the same.

As such it cannot be ascertained what steps the respondents have taken with regard to those two certificates subsequently produced by the petitioner and her deceased husband.

Mr. Manna, the learned advocate for the petitioner, has referred to a number of decisions where the court directed the state government to recommend the case of the petitioner within a certain time. He has particularly drawn the attention of this court to the case of Union of India and Others Vs. Sri Sudhangshu Maity and Others wherein the division bench had held that in the absence of official records being available the certificate issued by the freedom fighter had to be accepted and directed the central government to consider the claim of the petitioner on the basis of the certificate submitted along with the application. Again in the case of Gajendranath Manna Vs. State of West Bengal and Others ( MAT 552 of 2010) the division bench of this court by an order dated May 17, 2010 had on the basis of the provisions of the concerned Scheme and because of the non-availability of the official records held that the certificate of a freedom fighter would be acceptable to substantiate the claim of abscondence, internment or externment of the appellant in that case. There is one obvious difficulty in applying the directions contained in these judgments to the facts of the present case inasmuch as here the certifier whose certificate was furnished by the applicant had not recognized him in the first instance. The petitioner''s deceased husband had, therefore, submitted a fresh certificate from another freedom fighter. Subsequently the present petitioner also made a fresh representation to the authority. The outcome of these applications is not on record. As such the direction passed in other cases cannot be applied to the present case.

In such view of it the respondents are directed to consider the case of the petitioner over again on the basis of the certificate produced by her deceased husband as well as by the petitioner. The respondents are directed to consider the case of the petitioner strictly according to the provisions contained in the Scheme and to decide the claim of the petitioner on the basis thereof. Since the first claim was made by the petitioner''s husband about 30 years ago and since the petitioner herself is an octogenarian lady I direct the respondents to reconsider the case within a period of six weeks from the date of the communication of the order and to communicate the same to the petitioner within a week thereafter. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.