IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3497 of 2004 JAGDISH PRASAD Versus THE UNION OF INDIA & ORS ----------- 2 23.1.2009 Heard counsel for the petitioner and counsel for the Union of India and State of Bihar. The case of the petitioner in the first round was considered by this Court on merits by an order dated 18.11.2002 in CWJC No. 7862 of 2002. This Court after setting aside the earlier order had remitted the matter back to the Government of India with the following terms:- “-----The petitioner is hereby allowed to produce the documents before the Union of India to satisfy the concerned authority that he remained in jail for a particular period, the case was instituted for a particular incident at a particular number and was disposed of on a particular date. He shall also be entitled to submit his say before the Union of India and satisfy the authority that the petitioner is entitled to the pension. Within a period of four weeks from the date of submissions/receipt of a copy of this order the State Government shall refer all the original records to the Union of India in accordance with the demands already made by them. In the alternative, it is hereby ordered that if the State Government has not received any letter from the Union of India to submit the documents then too they would refer photo copies of all the documents which they have in their possession within four weeks from the date of submission of a 2 copy of this order. After giving proper opportunity of hearing to the petitioner, the Union of India shall decide the matter in accordance with law. It is not in doubt that the pursuant to the direction of this Court, the Government of India, by letter dated 17th February, 2003, had intimated the petitioner to produce documentary evidence especially those indicated in the order of the High Court and also appear for personal hearing on any working day within one month from the date of receipt of the letter. The petitioner on receipt of the said letter had sent his reply on 26.8.2003 in which he had merely given certain information as with regard to the period of his imprisonment but could not give any information with regard to the date of launching of the prosecution as would be evidenced from the relevant portion of the extract of his detailed reply. “ 1- tsy ;kruk dh vof/k & yxHkx 7 eghuk 2- dc ls dc rd tsy esa jgs & 15&9&42 ls 30&5&1943 rd 3- ds'k fdl frfFk dks gqvk & tkudkjh ugha gSA 4- ds'k fdl dkj.k ls ntZ gqvk & Lora=rk vkanksyu esa Hkkx ysus ds dkj.kA 5- ds'k dk fu"iknu fdl frfFk dks gqvk & tkudkjh ugha gSA** As a matter of fact, when the writ application was filed on 19.3.2004, the case of the petitioner was that 3 despite the order of this Court, no final decision had been taken. The respondent, Government of India and Government of Bihar however, had filed their counter affidavit sworn on 26.8.2004 wherein it has been stated that as a matter of fact, the case of the petitioner was considered on merit and further the petitioner was also afforded an opportunity of personal hearing. On 11.6.2003, it was found that the petitioner did not qualify for grant of pension. The relevant part of the order of the Government of India dated 6th August, 2003 (Annexure R-V) reads as follows:- ^^mi;qZDr fo"k; ij ekuuh; mPp U;k;ky; }kjk lh-MCY;w-ts-lh- la[;k 7862@2002 fnukad 18&11&2002 dks ikfjr vkns'kkuqlkj vkidks viuh tsy ;kruk ds leFkZu esa Hkkjr ljdkj dh leiqf’V ds fy;s viuh tsy ;kruk dh vof/k fd vki dc ls dc rd tsy esa jgs] dsl fdl frfFk dks vkSj fdl dkj.k ls ntZ gqvk vkSj dsl dk fu’iknu fdl frfFk dks gqvk bR;kfn izLrqr djus dk ,d volj iznku fd;k x;kA blds vfrfjDr vkidks ekuuh; mPp U;k;ky; ds vkns”kkuqlkj Hkkjr ljdkj ds le{k izLrqr gks dj vius nkos ds leFkZu esa lk{; vkSj izLrqr djus dk volj iznku fd;k x;kA bl ea=ky; ds lela[;d i= fnukad 11&6&2003 }kjk vkils Hkkjr ljdkj ds le{k gks dj viuh ;kruk ds leFkZu esa lk{; vkfn izLrqr djus dk volj fn;k x;k ysfdu fnukad 11&6&2003 dks mi lfpo ¼,Q-,Q-½ ls gqbZ vkidh O;fDrxr mi fLFkfr ds le; vki viuh tsy ;kruk ds leFkZu esa dksbZ Hkh lk{; tks fd ljdkjh lw=ksa ds vk/kkj ij izekf.kr gks izLrqr ugha dj 4 ldsA jkT; ljdkj ds i=kad x`-fo-fu- 121@02-01 fnukad 4&01&2003 vkSj vkidh O;fDrxr mifLFkfr ls izdV] vkids ekeys ij bl ea=ky; esa Lora=rk lSukuh lEeku isa”ku ;kstuk ds izok/kkuksa ds vUrxZr iqu% fopkj djus ds mijkUr bl ea=ky; ds lela[;d i= fnukad 19&6&2001 esa of.kZr rF;ksa ds dkj.kksa ls vkidks Lora=rk lSukuh lEeku isa”ku Lohd`r djuk laHko ugha gSA** This order, being the part of the counter affidavit, had also been served on the counsel for the petitioner way back on 24.8.2004 but, the petitioner has not in fact amended the writ application nor challenged the correctness thereof. In such a situation, the only inescapable conclusion is that the petitioner has accepted the facts mentioned in the impugned order whereas the petitioner did not file any document as directed by this Court in the earlier order and noted in the impugned order and there was no question of giving any further consideration inasmuch as the only purpose of remand of the case to the Government of India under the earlier order of this Court was to afford an opportunity to the petitioner to produce clinching document to show his being qualified for being granted pension under the freedom fighter scheme. Since, the petitioner did not avail this opportunity and did not produce any document as noted in the impugned order, 5 this Court would not find any error in the decision making process and consequently, this writ application, being wholly misconceived, must be and is hereby dismissed. Rsh (Mihir Kumar Jha, J.)