Letters Patent Appeal No.790 OF 2000 ------- Against Judgment and order dated 23rd March, 2000 passed by a learned single of this Court in C.W.J.C. No. 8065 of 1995. ------- JAGANNATH PRASAD @ JAGANNATH LAL--------------Appellant Versus THE UNDER SECRETARY, GOVT. OF INDIA-----------Respondents ------- For the appellant :M/S N.K. Agrawal, Senior Advocate and Pramod Manbansh, Advocate. For the respondent:Mr. S.N. Pathak, SCCG. P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Barin Ghosh & Jayanandan Sinh,JJ: During the pendency of the appeal, the appellant has died. An application has been filed by the widow of the appellant for recording the death of the appellant and for substituting the appellant by her. The application being not opposed, the same is allowed. 2. We have heard learned counsel for the parties. The original appellant applied for grant of freedom fighters samman pension on 23rd July, 1981. The said application was rejected by an order dated 25th June, 1986. On 9th September, 1992 the original appellant filed a writ petition, being C.W.J.C. No. 9044 of 1992, challenging the said order of rejection dated 25th June, 1986. The said writ petition was - 2 - allowed by an order dated 22nd October, 1992 whereby and under the order rejecting the application of the original appellant for grant of such pension was quashed and Central Government was directed to pass a fresh order. In terms thereof the Central Government passed a fresh order dated 14th January, 1994 and thereby accorded such pension to the original appellant with effect from 15th November, 1993. 3. In a writ petition registered as C.W.J.C. No. 8065 of 1995 the original appellant contended that he was entitle to such pension from 1st of August, 1980, when the revised freedom fighters samman pension became effective, and if not, at least from 23rd July, 1981 i.e. the date when he had applied for such pension. 4. This writ petition was contested by the Union of India. In the supplementary counter affidavit filed, the Union of India contended that inasmuch as there was doubt as to six months sufferance of the original appellant, such pension was accorded in his favour giving benefit of doubt to him. In order to establish that there was reason to express such doubt, the Union of India in the form of Annexure- B to the said supplementary counter affidavit annexed the G.R. register in relation to - 3 - Bariarpur P.S. Case No. 16. 5. The learned single judge who dealt with the writ petition noted that the said case was instituted in respect of an offence which took place on 16th August, 1942 against one Ram Singh and 47 others. In connection with the said case on 29th September, 1942 a charge sheet dated 28th September, 1942 was submitted against the said Ram Singh and 10 other accused persons. The learned single judge noted that the name of the original appellant featured as one of the accused persons and it was mentioned that the original appellant was absconding. In the trial, learned judge noted, all the accused persons were finally acquitted on 17th December, 1942. The purpose of annexing the G.R. register to the said supplementary counter affidavit was to establish that there was reason to doubt as to whether the appellant remained an absconder for a period of six months in asmuch as the trial pertaining to the incident, which occurred on 16th August, 1942, was concluded by an order of acquittal on 17th December, 1942. However, the learned Judge found from the same register that there was an order signed by the Sub-Divisional Officer without a date, which records existence of a note of the Deputy Superintendent of Police dated 10th - 4 - March, 1944. The purpose of the said order was to recall the warrant of arrest and processes against the absconders and to direct the Sub Inspector to release their attached properties. Although this order of the Sub-Divisional Officer is not dated but the order itself would suggest that the said order must have been written after 10th March, 1944 i.e. after the note of the Deputy Superintendent of Police dated 10th March, 1944 was brought to the notice of the Sub- Divisional Officer. 6. In such view of the matter the learned judge while dealing with the writ petition came to a finding that there was no reason to doubt that the original appellant remained an absconder for a period in excess of six months in asmuch as from the records it appears that the warrant of arrest against him was recalled only after 10th March, 1944 although he was acquitted on 17th December, 1942. 7. Furthermore the acquittal on 17th December, 1942 was of all those persons, who had been tried and not of the absconders. The evidence on record therefore clearly suggested that a warrant of arrest was issued against the original appellant in relation to an incident which occurred on 16th August, 1942 and the same was recalled only on or after 10th - 5 - March, 1944 and during that period the original appellant had been treated to be an absconder. On the basis of such documentary evidence a decision was ultimately taken by the Central Government to award pension to the original appellant, which clearly demonstrates sufferance by the original appellant for a period in excess of six months and accordingly the learned judge in no uncertain terms has held that it is not a case of grant of benefit of doubt to accord such pension. 8. The learned judge while dealing with the writ petition noted the judgment of the Hon’ble Supreme Court rendered in the case of Mukund Lal Bhandari versus Union of India, reported in AIR 1993 SC 2127, and applying the ratio contained therein, has held that the original appellant was not entitled to pension from a date anterior to the date of the making of application for grant of pension. 9. The learned judge also took note of the judgment of the Hon,ble Supreme Court rendered by three Hon’ble Judges in the case of Union of India versus M.R. Chelliah Thevar decided on 30th April, 1996 in C.A. No. 7762 of 1996, where Hon’ble Supreme Court while reconciling the conflict in the decisions of the Supreme Court rendered by two Hon’ble Judges - 6 - held that if it is a clear case, then freedom fighter samman pension is payable from the date of application, but if pension is granted on the basis of benefit of doubt the same is payable from the date of the order. Having considered such binding view of the Hon’ble Supreme Court, there was no question of holding that the pension was payable from the date of the order granting the same. It was obligatory on the part of the learned single judge to direct grant of pension to the original appellant from the date of the application made by the original appellant for grant of pension, but that having been not granted, the original appellant preferred the present appeal. 10. The learned judge by the judgment and order under appeal held in clear terms that there was no question of grant of benefit of doubt to the original appellant as regards his right to get pension, but held that since the original appellant challenged the order rejecting his application only on 9th September, 1992 by filing the first writ petition, the pension should be granted from the date of presentation of the said writ petition. 11. The learned counsel appearing in support of the appeal submitted that despite six years delay, the first writ petition was not only - 7 - entertained, but the same was allowed and as such there can be no effect of such delay. The delay in filing the said writ petition, if any, it was submitted, was not taken note of by the court. He next contented that the said writ petition was disposed of on 22nd October, 1992 by which the order rejecting the application dated 23rd July, 1981 was quashed, with a direction upon the Central Government to pass a fresh order. The Central Government, it was submitted, was directed to pass a fresh order on the application of the original appellant and ultimately the order dated 14th January, 1994 was passed by the Central Government on the said application of the original appellant dated 23rd July, 1981. The Counsel submitted that in such circumstances, in view of the findings recorded by the learned Single Judge, it was not just to direct payment of pension from 19th September, 1992 and not from the date of the application i.e. 23rd July, 1981. 12. The learned counsel for the Central Government submitted that from the tenor of the pleadings of the parties filed in the writ petition it would be evidenced that the Central Government ultimately accorded pension to the original appellant by giving him a benefit of doubt on the basis of the - 8 - records contained in the said G.R. register. It was submitted that in such view of the matter there would be no scope of getting pension from any date earlier than the date from which the pension had been accorded by the Central Government. The said submission is fallacious in asmuch as not only there is a direct pronouncement in the judgment and order under appeal that the facts and circumstances of the case as borne out from the records do not suggest any scope of grant of benefit of doubt to the original appellant, but the fact remains that by the judgment and order under appeal the date of grant of pension has been made effective from 9th September, 1992, i.e. much prior to the date of the order granting pension,but the Central Government has not preferred any appeal or a cross objection against the judgment and order under appeal. 13. In the circumstances, we accept the submission of the learned counsel for the petitioner and find no reason for not granting pension from the date of the application for pension but from the date of filing of the writ petition by which the order rejecting the prayer as was made in the said application was challenged. 15. The appeal is accordingly allowed. As a result the judgment and order under appeal is - 9 - modified by directing payment of freedom fighter samman pension to the original appellant for the period from 23rd July, 1991 to 14th November, 1993 within a period of six months from today. ( Barin Ghosh, J.) ( Jayanandan Singh, J.) Patna High Court Dated 26th June, 2008 Arvind/ N.A.F.R.