IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.816 of 2008 SMT. JAGDAMBA DEVI, WIDOW OF LATE HARI KANT JHA, RESIDENT OF VILLAGE GOPALPUR, POST OFFICE PINDARUCH, POLICE STATION KAVITAUL, DISTRICT DARBHANGA, BIHAR. Versus 1. THE UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI. 2. THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI. 3. THE ADDITIONAL SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI. 4. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, OLD SECRETARIAT BUILDING, PATNA. 5. THE SECRETARY, HOME DEPARTMENT, STATE OF BIHAR, OLD SECRETARIAT BUILDING, PATNA. 6. THE DIRECTOR-CUM-ADDITIONAL SECRETARY, HOME(SPECIAL) DEPARTMENT, GOVERNEMNT OF BIHAR, PATNA. 7. THE DISTRICT MAGISTRATE, DARBHANGA. 8. THE SUPERINTENDENT, DISTRICT JAIL, DARBHANGA. For the petitioner : M/s Kamal Nayan Choubey, Sr.Adv., Ambuj Nayan Choubey, Siddharth Harsh, Gopal Swaroop Dubey, Advocates. For the Union of India : Mr. Sanjay Kumar Pandey, CGC. For the State : Mr. Bijay Shankar Choubey, AC to SC-VIII. ----------- 04. 11.01.2011 Heard learned counsel for the petitioner and the Union of India. 2. Petitioner is aggrieved by the order dated 15.11.2006, Annexure-6 passed by the competent authority of the Union Government, Ministry of Home Affairs, whereunder claim of the petitioner for grant of dependents’ family pension under Swatantra Senani Samman Pension Scheme, 1980(hereinafter referred to as the Scheme) has been rejected holding that husband of the petitioner remained in jail custody for only 13 days, whereas minimum jail suffering required for being eligible for such pension is six months. Order dated - 2 - 15.11.2006, Annexure-6 is challenged by the petitioner on the ground that earlier she had questioned the order dated 26.7.2000 rejecting her claim for grant of dependents’ family pension by filing C.W.J.C. No.9903 of 2001, which was allowed under orders dated 25.8.2006, Annexure-5 setting aside order dated 26.7.2000 holding as follows:- “Furthermore, it is quite apparent from the certified copy of the record (Annexure-2), the recommendation of the State Government (Annexure-4), Enquiry Report of the Deputy Collector (Annexure-6/1) and the letter of the District Magistrate, Darbhanga (Annexure- 6/2) that the husband of the petitioner, namely Hari Kant Jha was an accused in a criminal case lodged with respect to freedom struggle of 9th August, 1942 and remained absconding from 16.8.1942 to 14.10.1944 and hence the said period was more than six months as provided in clause 4(b) of the Swantrata Sainik Samman Pension Scheme, 1980 and was arrested immediately thereafter on 14.10.1944 and hence the period for which he remained in jail was quite insignificant even if he remained in jail for less than six months in accordance with the provisions of the Scheme, as remaining underground for more than six months was sufficient under the provision of the Scheme to make the person entitled for the pension.” 3. Learned counsel for the petitioner submitted that the impugned order in the instant case, though quoted the aforesaid findings but in effect has not relied over the same and again refused the request for grant of dependents’ family pension under the Scheme to the petitioner. It is submitted that such approach of the competent authority of the Union Government not to rely on the findings of the High Court is - 3 - contrary to the settled norms as the authorities are duty bound to rely on the finding of this Court that husband of the petitioner remained absconding from 16.8.1942 to 14.10.1944 which is more than six months and petitioner is qualified for being granted dependents’ family pension under the Scheme. Learned counsel further submitted that if the authorities were of the view that findings of the High Court are not based on the documents referred to in the order of the High Court, they ought to have challenged the said findings by filing appeal against the order of the learned Single Judge, but the authorities could not have sat in judgment over the findings of the learned Single Judge so as to dispel the same by recording different reasons. Learned counsel also submitted that such approach on the part of the authorities infracts the principles of resjudicata and constructive resjudicata, which is attracted even in administrative matters. In support of the aforesaid contention learned counsel for the petitioner relied on the following judgments of the Hon’ble Supreme Court in the case of Satyadhyan Ghosal and others Versus Smt. Deorajin Debi and another, reported in AIR 1960, Supreme Court 941, State of West Bengal Versus Hemant Kumar Bhattacharjee and others, reported in AIR 1966 Supreme Court 1061 and P.K. Vijayan Versus Kamalakshi Amma and others, reported in AIR 1994 Supreme Court 2145. 4. Counsel for the Union of India with reference to the averments made in the counter affidavit as also the contents of the documents relied upon by this Court while - 4 - passing order dated 25.8.2006, Annexure-5 submitted that very perusal of the documents, Annexures-2, 4, 6 series would indicate that there is no material to suggest that husband of the petitioner remained absconding from 16.8.1942 to 14.10.1944. In this connection, he pointed out from the records of C.W.J.C. No.9903 of 2001 that Annexure-2 is the list of disposed of records of the court of Mr. H.C. Chakerbertey, Magistrate Ist Class, Darbhanga for the month of January, 1945, wherefrom it appears that husband of the petitioner Hari Kant Jha was an accused in 606 G.R./ 40 T.R. for the offence under Sections-147, 149 IPC and that he was discharged under Section 253 Cr.P.C. on 25.1.1945. Further records of the said case were destroyed on 4.8.1947. It is submitted that from Annexure-2, it does not appear that husband of the petitioner remained absconder for the period between 16.8.1942 to 14.10.1944. As regards Annexure-4 the recommendation of the State Government bearing Memo No.449 dated 6.4.1993, learned counsel for the Union submitted that from the said recommendation it does appear that husband of the petitioner absconded from 16.8.1942 to 14.10.1944 but Annexure-4 does not indicate any material for such recommendation/conclusion of the State Government as records of G.R. No.609 of 1942 stood destroyed on 4.8.1947, as such, the authorities of the State Government could not have concluded under report dated 6.4.1993, Annexure-4 that the husband of the petitioner absconded for the period between 16.8.1942 to 14.10.1944. Similarly with regard to - 5 - report of the Deputy Collector, Incharge Record Room, Darbhanga dated 19.7.1999 and the recommendation of the District Magistrate, Darbhanga dated 27.12.1999 addressed to the Under Secretary, Government of India, Ministry of Home Affairs, Annexures-6/1 and 6/2, learned counsel for the Union submitted that from close perusal of the two documents, it does not appear that husband of the petitioner remained absconding for the period between 16.8.1942 to 14.10.1944. In this connection, he also relied on the submissions made in paragraph-18 of the counter affidavit filed in the present writ case. 5. Learned counsel for the petitioner in rejoinder submitted that the submission which the counsel for the Union is making in the present writ petition should have been made by filing appeal against the order dated 25.8.2006, Annexure-5 but the authorities of the Union Government could not have sat in judgment over the findings recorded by the High Court. As the authorities of the Union disputed the findings recorded by the High Court that husband of the petitioner absconded in connection with G.R. No.609 of 1942 for the period between 16.8.1942 to 14.10.1944 the authorities would have been well advised to challenge the order of the High Court dated 25.8.2006, Annexure-5. Having not challenged the said order the authorities of the Union Government are bound by the findings of the High Court that husband of the petitioner absconded in connection with G.R. No.609 of 1942 for the period between 16.8.1942 to - 6 - 14.10.1944 and petitioner being the widow of absconder is entitled for grant of dependents’ pension under the Scheme. 6. Having heard counsel for the parties and having perused the impugned order dated 15.11.2006, Annexure-6, I am of the view that thereunder the Under Secretary of the Union has overreached the findings recorded by the High Court that husband of the petitioner remained absconding for the period between 16.8.1942 to 14.10.1944 and on this ground alone the order impugned dated 15.11.2006, Annexure-6 is set aside with direction to the authorities of the Union to either abide by such finding and grant dependents’ pension to the petitioner within two months from the date of receipt of a copy of this order or to challenge the order dated 25.8.2006, Annexure-5 in accordance with law. 7. The writ application is, accordingly, disposed of. AFR Rajesh/ (V.N. Sinha, J.)