IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11051 of 2005 KHILANAND SAH Versus THE UNION OF INDIA & ORS ----------- 2 03.02.2009 Heard counsel for the petitioner and counsel for the Union of India and the counsel for the State of Bihar. The reasons given in the impugned order dated 3rd of March, 2005 cancelling the sanction and grant of pension under the Freedom Fighter Pension Scheme, by itself is sufficient to show that the earlier order for grant of pension was given under some misconception of fact. It is so because there is an admitted document being in the form of admission register which was discovered subsequently by the respondents for establishing that the age of the petitioner was around six years in the 1942 movement in form of the self declaration of the date of birth of the petitioner being 10.1.1936 as is born out from the admission register of Jawahar High School which is Annexure-4/1 to this writ application. Counsel for the petitioner initially had tried to suggest that the name of the petitioner and that of the person having been entry at Serial No. 23 of Annexure-4/1, does not tally but then ultimately he had to concede, there cannot be such coincidence that even the father’s name of the two persons could be the same. That being so, this Court would hold that the Serial No. 23 of Annexure-4/1 showing the details of the petitioner in the admission register of the school is actually that of the petitioner. Once that position on fact becomes admitted, since it also bears the signature of - 2 - the father of the petitioner, the date of birth of the petitioner has to be 10.1.1936 as declared by the father of the petitioner with his signature thereon in the admission register of the school. Once the age of the petitioner is held to be 10.1.1936 as per the entry made in the declaration of his father in the admission register of school, he cannot be of more than six years in 1942 freedom movement. It will not be thus difficult for this Court to sustain the reasoning of the Government of India in the impugned order inasmuch as both under Sections 82 and 83 of the Indian Penal Code, it has been clearly mentioned that an offence committed by the person less than 12 years of age will not be punishable. Accordingly, the whole story of the petitioner participating in the Freedom struggle in 1942 and being made accused and convicted in a criminal case in 1942 has to be disbelieved on account of discovery of his age of six years. Thus the claim of petitioner of participating in Freedom Movement in 1942 remains shredded in mystery and has been rightly rejected for cancellation of his pension under Freedom Fighter Pension Scheme. Counsel for the petitioner had then tried to rely on a medical certificate for determination of age by a team of doctors which according to him was also brought into existence only at the request of the Central Government. This Court would find that such determination of age by Medical Board holding the petitioner to be aged about 75 to 78 years on the date of examination is only a tentative fixation of age and could have been a valid document to be looked into, had there been no original proof of the age of the - 3 - petitioner. In this case, there is a proof of the age of the petitioner, in view of the very old document being the admission register of the school and therefore no other secondary evidence was required to be looked into by the Government of India for determining this aspect. Therefore, the admitted entry of the petitioner in admission register of the year 1941-42 has to be accepted as a clinching material and in that view of the matter decision of the Govt. of India for cancellation of pension does not suffer from any infirmity. There is however, one aspect of the matter which would require for reconsideration by the Government of India inasmuch as while this Court would not find any fault or error in the decision making process of cancelling the grant of sanction of the pension, the other part of decision seeking recovery from the petitioner would definitely be required to be looked into from an angle as to whether there was any misrepresentation on the part of the petitioner in his first application. It is not in doubt that whatever declaration was given by the petitioner was duly verified by the State Government while recommending the case of the petitioner to the Central Government which had ultimately passed an order granting pension to the petitioner. Therefore, if both the authorities were not in a position to discover the factum of age of the petitioner, the petitioner cannot be held to be single handedly guilty for being subjected to recovery of amount of pension already paid to him. Accordingly, this Court would quash that part of the impugned order seeking to recover the amount of pension already paid to the petitioner and would direct the - 4 - Government of India to reconsider the issue only in relation to the recovery aspect from the angle as to whether there is any deliberate misrepresentation on the part of the petitioner so as to be saddled for being subjected to the recovery of the pension already paid to him. With the aforementioned observations and directions this application is disposed of. Bibhash (Mihir Kumar Jha, J.)