IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13004 of 2004 CHANDRAJEET SINGH Versus THE UNION OF INDIA & ORS ----------- 7 30.01.2009 Heard counsel for the petitioner and counsel for the Union of India and the State of Bihar. In this writ application, the petitioner has assailed the correctness of the order dated 5th May, 2004 (Annexure-1) whereby and whereunder the pension already sanctioned to the petitioner on 30.3.1983 under the Freedom Fighter Pension Scheme has been cancelled with effect from 1.8.1980 with a further direction to make recovery of pension already drawn by him. Counsel for the petitioner would submit that the impugned order is one which would only reflect the harassing attitude of the Government of India inasmuch as when in a criminal case filed by the officials of the State of Bihar it was already found that the allegation of making declaration of false age of the petitioner was incorrect and in fact the Civil Surgeon had ascertained his age to be 63 years as in the year 1985, it has to be now accepted by the Government of India that the so called allegation against the petitioner of suppression/giving wrong information of his age was incorrect. He has therefore sought the review of the said - 2 - impugned order passed by the authority of the Government of India, canceling the pension of the petitioner on merit. On the other hand, the respondents have filed their counter affidavit and have relied on the documents on record to contend that when a definite allegation was confronted to the petitioner and he was given an opportunity to file a show cause, if the petitioner did not choose to deny such allegation and had filed a vague show cause reply, the resultant order leading to cancellation of pension cannot be said to be either bad much less be made subject matter of review of merit within the limited jurisdiction of this Court under Article 226 of the Constitution of India. This Court would find that the petitioner was granted pension on 30.3.1983 under the Freedom Fighter Pension Scheme and the same was suspended by order dated 8th of August 1985 as contained in Annexure-4 to this writ application. The said show cause notice had also elicited a reply of the petitioner dated 23.8.1985 which however, has not been filed by the petitioner along with this writ application. Suffice to say that the Government of India also did not act upon the show cause notice dated 8.8.1985 (Annexure-4) and had issued a fresh show cause notice to the petitioner on 17.5.2000 - 3 - as contained in Annexure-R-IV of the counter affidavit. Such show cause notice asking the petitioner to file his reply, if any, was based on the following seven grounds:- (i) “He himself indicated his age as 52 years in his application filed in 1981, thus he on his own admission was born in 1929/30 and was thus 12/13 years of age when he claimed to have participated in freedom struggle and undergone imprisonment. Before the age of 16 years, a child is not imprisoned in the jail meant for young people. (ii) Medical reports furnished by the applicant are on plain paper and not on official stationer. Further the age determined by the Medical Board does not tally with the age given by the applicant himself. (iii) Applicant did not indicate the details of the case in which he claimed to be imprisoned, so it is not clear whether the case was indeed related to freedom struggle. (iv) Superintendent, Sasaram Jail in his certificate has indicated that the name of applicant is not available in the available records. (v) Signature of the certifier Shri Guthuli Singh on the certificate and its verification differs. (vi) The case against applicant was disposed off in 1996 not on merits but due to non presence of the informant (BDO). But, the Court order is silent whether the applicant underwent six months or more jail suffering - 4 - or not. (vii) State Government has not furnished their specific recommendation to restore the pension of the applicant.” It is not in doubt that the said show cause notice dated 17th of May, 2000 was served on the petitioner and he had also filed his reply on 4.9.2000 which is Annexure -11 to this writ application. From a perusal of this show cause notice it would be clear that not a single word has been said regarding any of ground mentioned in the show cause notice much less were controverted by the petitioner. Petitioner even did not muster courage to say that in original application filed in the year 1989 claiming pension under the Freedom Fighter Pension Scheme, he had not declared his age to be 52 years in the year 1981. The show cause reply, to say the least was only by way of retaliation as to why the petitioner was being subjected to repeated show cause notice when he had already filed his reply on 23.8.1985. While the matter was under consideration, the petitioner came to this court assailing the correctness of the show cause notice as also the indifferent attitude of the respondents in not taking a final decision and this Court by an order dated 12.3.2003 had remitted the matter back to the Government of India and this Court in C.W.J.C. No. 7256 of 2002 dated 12.3.2003 had - 5 - disposed of the writ application with the following direction :- “It is hereby directed that within eight weeks from today, the State Government through the authorized/designated officer shall submit its report/comments/recommendation to the Union of India. Within ten weeks of the receipt of those recommendations, the Union of India through designated officer shall pass others on annexure-R/1, taking into consideration the reply submitted by the petitioner and the report/recommendations made by the State Government. If the petitioner is held entitled to the pension then the pension shall immediately be revived in his favour and in case the decision goes against the petitioner then the reasons persuading the Central Government to reject the application should be communicated to the petitioner. Let a copy of this order be given to the State. The petition is disposed of.” It is only in compliance of the said order that the impugned order dated 5.5.2004 as contained in Annexure-1 to this writ application has been filed. From the entire reading of the documents on record as also after appreciating the submissions of the parties this much is clear that there is no flaw in the decision making process leading to cancellation of the pension already given to the petitioner. That is because when any person - 6 - is confronted with any allegation in a show cause notice, the least that is expected of him is that he would come out with his defence and would explain the circumstances which may really weigh upon the authority to reconsider the matter and enable it to pass a reasoned order. In the present case when the show cause reply dated 23.8.1985 has not been produced by the petitioner, it would be difficult for this Court to say as to whether the aforesaid show cause reply could have answered to the aforementioned seven grounds and subsequent allegations in the show cause notice dated 17.5.2000. As a matter of fact, that could not have done so because in the show cause notice dated 8th of August, 2005 (Annexure-4) all that was put to the petitioner was that there was earlier a recommendation in his favour leading to grant of pension and since that recommendation had been withdrawn by the Government of Bihar, why his pension should be not cancelled? In that view of the matter and specially when the medical certificate relied by the petitioner dated 18.6.1985 pertaining to his age was not even given, its original conclusion inasmuch as the said medical certificate was the part of the investigation of the criminal case which had been concluded only on 24.2.1996. It would be thus difficult to believe that the petitioner had earlier taken - 7 - such plea of his being exonerated pertaining to suppression/concealment of his age in the show cause reply dated 23.8.1985. It is therefore, to be held that the show cause reply dated 23.8.1985 could not have been an effective answer to the show cause notice dated 4.9.2000. Once this position becomes clear that the petitioner had not controverted the specific allegations against him as noticed above in the show cause notice dated 4.9.2000 there can be no escape from the one and only one conclusion that the petitioner did not choose to controvert the specific allegation against him in fact had admitted. The submission of the counsel for the petitioner that the finding of the criminal case was pending and the Government of India and its authority should have waited for deciding the matter in hand, has to be only noticed for its being rejected. The Government of India was not a party to such a criminal case and therefore, a finding of a criminal case cannot bind a party and on that basis if the Government of India had held that the medical certificate so relied by the petitioner as issued by the Civil Surgeon could not have been preferred to the own declaration of the petitioner in his application setting out his age of 52 years as in the year 1981, the age of the petitioner was definitely 12-13 years during his - 8 - alleged participation in the freedom struggle in the year 1942. There is no flaw in the decision making process and as such the scope of Article 226 of the constitution of India cannot be extended for examining the matter relating to claim of the petitioner for grant of pension on merit. That being so, there is no merit in this writ application and the same is accordingly dismissed. Bibhash (Mihir Kumar Jha, J.)