IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14970 of 2005 Shambhu Nath Pandey(since dead and substituted by his legal heirs), son of Late Suba Pandey, resident of Village-Pandeypur, P.O.-Upadhya Pandeypur, P.S.- Buxar, District-Buxar. ....................................... Petitioner Versus 1. The State of Bihar. 2. The Union of India through Home Department, Home Affairs, Lok Nayak Bhawan, Khan Market, New Delhi. 3. Under Secretary to the Government of India Minister, Home Affairs, Lok Nayak Bhawan, Khan Market, New Delhi. 4. The Chief Controller of Accounts, Pay and Accounts Officer (Pension and Miscellaneous), Ministry of Home Affairs, 10/2, Jamnagar House, New Delhi- 110011. 5. Collector, Buxar, District-Buxar. 6. Additional Collector, Buxar, District-Buxar. ................................... Respondents ----------- 6 21/4/2009 Heard Mr. Shashi Shekhar Dwivedi, learned counsel appearing on behalf of the petitioner as also counsel for the Government of India and counsel for the State of Bihar. As was expected the petitioner awaiting restoration of the pension under Freedom Fighter Scheme has died and an application seeking substitution i.e, I.A. No. 5233 of 2007 has been filed stating about the death of the original petitioner on 2.6.2007 during pendency of this writ application. For the reasons mentioned in this application especially in view of the fact that the lis as involved in this writ application would still survive even after death of the writ petitioner Shambhu Nath Pandey, prayer of substitution made in paragraph no.2 is hereby allowed. Let the name of original writ 2 petitioner be deleted and in his place name of his heirs as mentioned in paragraph no.2 of the application be substituted. Coming to the merits of this case, this Court would find that the required affidavit by the Government of India in terms of the order dated 5.2.2009 has not been filed. By the order dated 5.2.2009 this Court had directed the Government of India to file a specific counter affidavit for the following reasons:- “In this writ application, a question has arisen as to when a freedom fighter who had already been granted pension is subjected o a show-cause notice as to whey his such pension should not be cancelled and he also files his show-cause reply, can his pension be cancelled without confronting him the materials which are collected behind his back after filing of his show cause reply. In the present case, it would be found that the petitioner was subjected to such a show- cause notice dated 30.9.2004 whereafter the petitioner had filed his reply on 15.10.2004 (Annexure-8) and thereafter, the Central Government had sent such reply for the comments of the State Government and the State Government is said to have sent certain comment with recommendation dated 29.3.2005 which had weighed upon the Central Government to ultimately cancel the pension of the petitioner on the ground that the petitioner failed to produce any acceptable evidence and the documents produced by him in his support of his claim could not be verified. This Court however would only like to know as to whether any opportunity was given to the petitioner after he had filed his show-cause reply on 15.10.2004 and further as to whether the report of the State Government dated 29.3.2005 was even confronted to the petitioner in any manner, before passing of the impugned order. Since, this aspect of the matter has not at all been dealt with in the counter affidavit of the Respondents this Court would direct the competent authority of the Government of India to file a further supplementary counter affidavit 3 for explaining the aforesaid aspect. At the same time in such supplementary counter affidavit, it must be also clarified as to how long a pensioner in expected to remain the documents and/or keep track of such documents filed by them some thirty years back for getting them verified as and when they are called upon to do so.” Today learned counsel for the Government of India has produced a letter of Under Secretary of the Government of India in the ministry of Home Affairs wherein it has been stated that the show cause notice issued to the original writ petitioner dated 13.9.2004 was not accompanied with the letter of the Government of Bihar dated 9.12.2003. Thus, it would be clear that the Government of India had issued show cause notice for cancellation of pension of the original writ petitioner by placing reliance on the Government of Bihar but without supplying a copy thereof. In this context the content of the show-cause becomes important and needs to be extracted hereinbelow:- “ekuuh; mPp U;k;ky; esa izkjEHk lh0 MCY;w0 ts0 lh0 10638@2001 ds vUrxZr ^lqvks eksVks ,D”u^ ;kfpdk ls lacaf/kr jkT; ljdkj ds i=kad 432 fnukad 9-12-2003 esa tkWp mijkUr bl ea=ky; ds /;ku esa ;g ckr ykbZ xbZ gS fd vkj{kh v/kh{kd @Mh0@ vijk/k vuqla/kku foHkkx fcgkj iVuk ds i=kad 2711 fnukad 5-11- 2003 ,oa v/kh{kd dsUnzh; dkjk Hkkxyiqj ds i=kad 1190 fnukad 10-5-2003 }kjk izkIr lR;kiu izfrosnu }kjk jktuSfrd foHkkx }kjk fuxZr izek.k dh lEiq"Vh ugha gks ldk Jh olkou flag HkwriwoZ lkaln }kjk fn;k x;k izek.k i= dh lEiq"Vh ugha gks ldh gS A blds vfrfjDr ftyk inkf/kdkjh Hkkstiqj us viuh fjikVZ esa dgk gS fd budh isa”u ikus dh oS/krk izekf.kr ugha gksrh gS D;ksafd budk Hkkxyiqj tsy esa jgus dk dksbZ izek.k i= miyC/k ugha gS A Lora=rk lSukuh lEeku isa”u ;kstuk ds izok/kkuksa ds varxZr tkyh 4 izek.k i=ksa ds vk/kkj ij izkIr isa”u jnn djus dk vf/kdkj gS A vr%bl ea=ky; ds lela[;d i= fnukad 31-1-84 }kjk vkidks eatwaj dh xbZ isa”u fuyafor djus dk fu.kZ; fy;k x;k gS A” When this show cause was based on some reports of the Collector as also Superintendent of police of the Crime Investigation Department (C.I.D.) and the Superintendent of Central Jail as forwarded by the State Government in its report dated 9.12.2003 to the Central Government, it was absolutely necessary to enclose those documents so as to enable the original writ petitioner to file an effective show cause reply. Mere formalities of asking a show cause without making the person concerned aware of the materials against him would be only giving lip service to the principles of natural justice. As a matter of fact the original writ petitioner had replied the said show cause notice wherein he had dealt the tentative opinion of the Central Government in its show cause notice by producing the material and evidence especially TAMBRA PATRA given to him by the Prime Minister of this country on 15 August, 1972 and the order of the Government of Bihar issued from the Political Department in the special section dated 5th March, 1945 conveying detail of detention of the petitioner from 3rd April, 1944 to at least 5th March, 1945. The petitioner had further placed reliance on the certificate of co- prisoner Late Basawan Singh and therefore by at least in all these three documents the petitioner had sought to reinforce his 5 submission that the earlier decision taken by the Government of India for grant of pension under the Freedom Fighter Scheme was not fit to be reviewed and as such his suspended pension should be restored. The Government of India in the impugned order, however, has disclosed only the following reason for cancellation of the pension granted to the original petitioner:- “The reply to the show-cause notice received from the applicant has been examined by the State Government, who have recommended, vide their letter dated 29.3.2005 for cancellation of his pension, since the applicant has not been able to produce any acceptable evidence and the documents produced by him in support of his claim could not be verified. In view of the above, the President is pleasure to cancel the pension sanctioned to Shri Shamboo Nath Pandey S/o Late Souba Pandey with effect from the date it was initially sanctioned and to order recovery of pension drawn by him till date.” The question would arise as to whether the show cause reply filed by the petitioner was really considered or again another lip service was given by only referring to filing of such show cause reply. In the show cause reply the petitioner as indicated above has relied on three specific documents including one TAMRA PATRA of the year 1972 given at that point of time when the scheme was not in vogue or at least the Freedom Fighter of this country even were not aware that they were to be given pension by the Central Government. It was thus absolutely necessary for the Government of India to look into the file for 6 finding out as to whether recognition of the original writ petitioner by conferring him with TAMRA PATRA by way his recognition as Freedom Fighter on the eve of Silver Jubilee of independence of this country by the Prime Minister himself was also based on fake and frivolous materials. In fact, this case would be having special feature because detention order issued under Restriction and Detention Ordinance, 1944 on 5th March, 1945 against the original writ petitioner in continuance of the earlier orders against him on 3rd April, 1944 and 28th September, 1944 was by itself sufficient towards fulfilment of requirement under the scheme of having suffered jail custody for the period over six months. Yet, no finding has been given on this document by the Government of India in the impugned order and the so called opinion of the State Government against the petitioner has been accepted without considering the effect of such detention order. Merely because copy of this detention order sent to the Superintendent of Bhagalpur Jail could not be traced out in such jail or the fact with regard to the petitioner undergoing jail custody in Bhagalpur Central jail could not be supported from the jail records by itself could not have been a reason to review the order of grant of pension to the petitioner especially when the alternative mode of confirmation of such jail custody by the petitioner had stood supported before the Government of India in the form of certificate of co-prisoners, namely, Late Basawan Singh and/or 7 Late Jag Narain Koeri. Therefore, there could have been no difficulty for the Government of India to find out as to whether the two co-prisoner’s certificate had the effect of fulfilment of six month incarceration in jail custody of the original writ petitioner. The show cause reply, containing these documents, therefore, required an objective consideration of the case of the petitioner but no reasons whatsoever has been disclosed as with regard to such documents in the impugned order and an object surrender of the authority of the Government of India by placing reliance on an uncommunicated report of the State Government dated 9.12.2003 would only go to show that the person or the authority who had to apply his mind for considering to grant pension under the Freedom Fighter Scheme has failed to consider the matter objectively by leaving the matter in hands of such authority i.e. State Government who had at best only the role of making a recommendation. This Court has, in fact, gone also into report of the State Government dated 29.3.2005 referred to in the impugned order canceling pension of the petitioner which reads as follows:- “funs”kuqlkj mi;qZDr fo"k;d vkids i=kad lh0 tsM@114@,l0 ,l0@5313@72- ,Q0 ,Q0 @fcgkj@ fnukad 3-11-2004 ds lanHkZ esa dguk gS fd isa”u/kkjh ds ekeys dh leh{kk dh xbZ leh{kksijkUr ;g ik;k x;k fd isa”u/kkjh }kjk vius dkj.k i`PNk took esa dksbZ ubZ ckr ugha dgh x;h gSA lkFk gh buds }kjk vius nkos ds leFkZu esa lefirZ vfHkys[kks dk fuxZr Jzksr }kjk lEiq"V Hkh ugha fd;k x;k gS A” The report of the State Government is therefore based 8 on the report of the Collector of the district. The report of the Collector of the district is also on the records by way of Annexure- A to the counter affidavit filed by respondent nos. 6 and 7. As a matter of fact, the said report of the Collector is dated 24th June, 2002 which only refers to an earlier enquiry conducted by the four officers of the district, namely, the Additional Collector, Subdivisional Officer, Buxar, Subdivisional Officer, Dumraon and the Incharge Officer of the General section of Collectorate. In the case of the petitioner the said committee in its fact finding report dated 12.6.2002 had dealt with the case of the petitioner in the following words:- “Jh ”aHkqukFk ikaMs firk Lo0 ”qdq ikaMs] lk%-ikaMsiqj iks- mik/;k;iqj ftyk ”kgkckn ds uoEcj 1944 ls fnlEcj 1945 rd tsy esa jgus dk izek.ki= lkaln Jh clkou flag us izek.ki= fn;k gS lkFk gh Jherh bfUnjk xka/kkh }kjk rkez-i= izkIr djus dh Nk;k izfr izkIr gS A ijUrq buds Hkkxyiqj tsy esa jgus dk dkbZ lEiqf"V ugha gS A vr% buds isa”u ikus dh cS/krk izekf.kr ugha gksrh gS A “ “““ As a matter of fact this report of the aforesaid four men committee was merely forwarded by the Collector in his forwarding letter dated 24 June, 2002 (Annexure-B to the counter affidavit of respondent nos 6 and 7) with his mere endorsement “ tkWp ny ds earO; ls lgefr nh tkrh gS “ The question, therefore, would be who had actually considered the case of the petitioner and at what stage. Infact one 9 line observation of the four men committee that there is no confirmation of the petitioner being detained in Bhagalpur Jail has been the only reason for doubting the eligibility of the petitioner for grant of pension. Neither the four men committee appears to have been even informed nor it has taken into consideration the case of the petitioner in the light of detention order, TAMRA PATRA and two certificates of the co-prisoners, both of whom had held high office, being Minister in the State Government and therefore none of them could not have been brushed out so easily. From the aforesaid analysis of facts it thus becomes clear that the Government of India has not considered the show cause reply of the petitioner in an effective and objective manner and has merely acted on the dotted line of the State Government, which also virtually is based on subjective opinion of the four men committee because the Collector or the State Government have merely endorsed the view of the said four men committee. All these aspect, therefore, would go to show that the case of the original writ petitioner was never considered objectively by the authorities who had earlier granted pension to the petitioner. In that view of the matter, the impugned order is hereby set aside and the matter is remitted back to the Government of India, who would now consider the case of the original petitioner (since dead) in the light of the show-cause filed by the original writ petitioner and if for any reason it would need any 10 clarification either from the substituted petitioner or from the State Government, it may call upon for any further information from them, but a final decision must be taken by passing a speaking order after considering the documents specially those annexed with the show cause reply within a period of six months from the date of receipt/production of a copy of this order. It has to be now also kept into account that there will be no issue for payment of further amount of pension as the original writ petitioner has already died and his widow is also not surviving. That being so, it will only the question of payment of arrears of pension. Thus, in the event the Government of India will find that the pension granted to the original writ petitioner was in order and required no interference, his heirs already substituted would be paid the aforementioned amount within a period of one month from passing of the final order. The application in the light of the aforesaid observations and directions is allowed to the extent indicated above. Abhay Kumar (Mihir Kumar Jha, J.)