IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.1112 of 2010 Sadanand Poddar Versus The Union of India & Ors ---------------------------------- 05. 04.08.2011 Heard Mr. Indu Bhushan Prasad, learned counsel appearing on behalf of the petitioner, Mr. Ravi Verma, Assisting counsel to G.P. 12 for the State and Mr. Arun Kumar Arun, learned Central Government counsel appearing on behalf of respondent nos. 1 to 4. With the consent of the parties, the matter has been taken up for disposal at the stage of admission itself. The writ petition has been filed for quashing the order dated 18.9.2009 as contained in Annexure-10 of the writ petition, whereby the Freedom Fighter Pension to the petitioner under the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as the Scheme), brought in force vide notification dated 15.8.1981 has been stopped, inter alia, on grounds of non-fulfilment of the conditions relating to submission of certificates in prescribed form by authorized persons, fully detailed in paragraph 4 of the impugned order. Brief facts of the matter is that the petitioner who claims to be a freedom fighter had applied for pension. The matter was scrutinized by the District Committee, Bhagalpur in the backdrop of the documents produced by him and thereafter was recommended for grant of Freedom Fighter 2 Pension before the State Advisory Committee, constituted for this purpose. The claim after being verified by the State Advisory Committee was duly recommended vide letter bearing Memo No. 524 dated 23.3.1990 of the Under Secretary, Government of Bihar in its Home (Special) Department. It has been specifically mentioned in the said letter that the case of the petitioner was considered by the District Committee constituted for this purpose and who after examining the case of the petitioner placed the same before the State Advisory Committee, who in its meeting held on 8/9th February, 1990, approved the case of the petitioner for grant of Freedom Fighter Pension under the Scheme in question. Pursuant to the said recommendation the Central Government in its Home Ministry vide Memo dated 5.9.1997 allowed Freedom Fighter pension to the petitioner with the only stipulation that if subsequently it is found out that there has been a suppression of any material fact by the petitioner or the information provided by him is found false, the grant of pension would be stopped without any prior notice. The grant of the pension came to be reconsidered, in the light of an order passed by this Court in a Public Interest Litigation arising from C.W.J.C. No. 10638 of 2001 after a lapse of almost 7 years. The Ministry of Home Affairs, Government of India was now of the opinion that as the petitioner was a minor at the relevant time, hence it was 3 unlikely that a person of 13 years would have participated and remained under ground fearing arrest during the freedom movement. On the said premise the pension granted to the petitioner in 1997, was withdrawn vide order passed on 19.5.2004 (Annexure-5). However, the respondent authorities of the Government of India waived the recovery of the pension already drawn. The petitioner moved this Court through C.W.J.C. No. 7136 of 2005 and which was heard and disposed of vide order passed on 2.2.2009 holding that age alone could not have been a factor for cancellation of the pension of the Freedom Fighter Pension of the petitioner unless there were other circumstances establishing non-fulfilment of any other terms and conditions. The order withdrawing pension was quashed and set aside. The respondent authorities of the Government of India in its Home Department taking cue of the liberty granted by this Court, passed the impugned order dated 18.9.2009 and on this occasion, the petitioner was held ineligible for grant of Swantantrata Sainik Samman Pension by reason of certain deficiency listed at paragraph-4 of the impugned order. The petitioner being aggrieved by the order cancelling pension as contained in Annexure-10 has filed the present writ petition. Learned counsel for the petitioner submits that 4 the grant of pension to the petitioner was after due scrutiny of his claim at the State level as also by the Government of India and upon verification of the entire documents. He submits that initially the case was considered by the District Level Committee who got the matter enquired by one Saryu Prasad Singh, a member of the Committee and thereafter the report so prepared was submitted for consideration by the State Level Advisory Committee for their satisfaction as to the claim set out by the petitioner for grant of the pension in question. He submits that it is thereafter that the claim of the petitioner together with all enclosures was forwarded to the Government of India for their sanction and which after due scrutiny was sanctioned under the order dated 5.9.1997 as contained in Annexure-3 with the only stipulation that if any information submitted by the petitioner was found to be false then his pension would be withdrawn. He submits that there was no other stipulation as to the grant of pension to the petitioner. He submits that initially the respondent authorities of the Government of India cancelled his pension by raising the ground of minority. The said objection having been set aside by this Court in its order dated 2.2.2009 passed in C.W.J.C. No. 7136 of 2005, the respondent authorities have now proceeded to cancel the pension of the petitioner on novel grounds not found either at the stage of consideration of the grant of pension in the year 1997 or at the stage when his 5 pension was cancelled on grounds of minority on 19.5.2004. It is submitted that the respondents cannot be allowed to cause undue continuous harassment to the petitioner by raising fresh issues each time. It is contended that the grounds for claiming the Freedom Fighter Pension was of underground suffering as found within the parameters of explanation 4(b) (3) of paragraph-4 of the Swatantrata Sainik Samman Pension Scheme. It is contended that the petitioner was required to substantiate his claim under the said provision by submitting documents as required under paragraph 9(b) (2) of the said Scheme and once this aspect stood satisfied then there was no reason to interfere with the pension granted to the petitioner. Learned counsel in this regard submits that the non- availability of records certificate as contained in Annexure-18 had already been forwarded by the State Government and it clearly mentioned that the records relating to the petitioner were not to be found in the record room of the district. He further submits that as the certificate granted by Late Dayanand Jha was not found to be in prescribed form, hence the certificate issued by Sri Bhola Gope, a freedom fighter as present at Annexure-2 was forwarded and which was sufficient certification of his underground suffering of six months and which has also been taken note of by the Under Secretary, Government of Bihar in its Home (Special) Department in his letter dated 15.4.2003 (Annexure-6), clearly 6 mentioning that the claim of the petitioner was based on underground suffering and that his claim was considered and verified by the State Level Advisory Committee held on 8/9th February, 1990 on the basis of the report submitted by one Saryu Prasad Singh and had been recommended for grant of pension vide letter dated 23.3.1990 of the Government of Bihar. It is also stated that although the State was requested to send the certificate granted by Shri Dayanand Jha, a freedom fighter in the prescribed form but as he had expired in the meanwhile, hence a certificate issued by the one Bhola Gope, another freedom fighter after verification was forwarded to the Government of India and which amply certified the underground suffering of the petitioner during the period 15.8.1942 to 15.7.1943 which was more than six months. The certificate so issued by Bhola Gope was forwarded to the District Magistrate for verification against the non-availability record certificate but it was reported that the said Bhola Gope had expired four years ago and the records had since been destroyed, hence, the same could not be confirmed. The Under Secretary has ultimately mentioned that it is after series of correspondence that the Government of India vide letter dated 5.9.1997 had sanctioned the pension to the petitioner under the Scheme and which may be allowed to continue. Learned counsel in these circumstances submits that the impugned order dated 18.9.2009 now raising fresh issues is 7 not sustainable once the claim of the petitioner has been considered and forwarded by the State Government and acted upon by the Union of India after consideration of the relevant documents. Mr. Arun Kumar Arun, learned counsel appearing for the Union of India placing reliance on the statement made in paragraph-17 of the counter affidavit filed on behalf of the Government of India, submits that in absence of the non-availability of records certificate in its prescribed form and the personal knowledge certificate furnished by the said Bhola Gope also not being in the prescribed form, there was no sufficient compliance of the requirement under the Scheme certifying the underground suffering of the petitioner. It is the case of the Government of India that neither the certifier had given any proof of his underground suffering of two years as prescribed under the Scheme nor the State Government had confirmed as such and thus the personal knowledge certificate given by Bhola Gope suffered from deficiency. Learned counsel for the State submits that the entire information as required by the Government of India was forwarded by them and it is after due consideration that the Government of India has decided to cancel the pension granted to the petitioner under the impugned order. I have heard learned counsel for the parties and 8 have perused the materials available on record of the proceedings. A perusal of the letter forwarded by the Under Secretary, Government of Bihar to the Under Secretary, Government of India as contained in Annexures 1 and 6, recommending the case of the petitioner for grant of sanction explains the entire case of the petitioner and demonstrates the satisfaction of the State authorities in supporting the claim made by the petitioner for grant of pension under the Scheme. In no uncertain terms the Under Secretary has stated that the case of the petitioner had been duly enquired into by the District Committee and put up for consideration by the State Level Advisory Committee. The State Level Advisory Committee upon consideration of the claim of the petitioner in the backdrop of the parameters set out under the Scheme for grant of pension and the relevant documents accompanying such claim, recommended the case of the petitioner for grant of pension and which was duly forwarded by the State authorities through the Under Secretary vide letter dated 23.3.1990 as contained in Annexure-1. The Government of India after satisfying themselves as to the claim put forth issued the order of sanction on 5.9.1997 with a singular stipulation that if any of the information submitted by the petitioner was found to be false, the benefit would be cancelled without giving any reason. The claim of the petitioner was re-examined seven years later on grounds of 9 minority and the pension cancelled and which action of the authorities of the Government of India was set aside by this Court vide order passed in the writ petition as contained in Annexure-7. The liberty so granted by this Court did not authorize the Government of India to start a de novo enquiry as a period of almost a decade had passed since the grant of pension to the petitioner by the Government of India. It is not the case of the respondent authorities of the Union of India that the petitioner had given any false declaration or had submitted papers which were not found to be genuine. The only ground I can find in the counter affidavit of the Government of India is of the certificate not being submitted in the prescribed form by the State Government. The procedural infirmity caused by the State Government, upon which the petitioner had no control, cannot be a ground for cancellation of his pension in the back drop of the recommendation dated 23.3.1990 (Annexure-1) and the letter dated 15.4.2003 as contained in Annexure-6 clarifying the entire aspect and certifying the underground suffering of the petitioner. In these circumstances, the requirement set out by the Government of India of submission of the documents in the prescribed form when the person who had certified the underground suffering of the petitioner had already expired, amounted to laying down of a condition which could never be fulfilled. In any view of the matter, there being no case on the 10 part of the Government of India that any information submitted by the petitioner was either found to be false or the documents submitted not found genuine, there vested no jurisdiction in the respondent authorities to re-open the case of the petitioner and to start a de novo enquiry. The impugned action cannot be sustained and consequently the order passed thereunder cannot be upheld. In the result, the writ petition is allowed. The order dated 18.9.2009 as contained in Annexure-10 is quashed and set aside. The respondent authorities of the Union of India and the State of Bihar are directed to restore the pension of the petitioner under the Swatantrata Senani Samman Pension Scheme, 1980 forthwith and also pay the arrears, within a period of three months from the date of receipt/production of a copy of this order. S.Sb/- (Jyoti Saran, J.)