IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12096 of 2004 CHHEDI SINGH @ CHHEDI CHOUDHARY Versus THE UNION OF INDIA & ORS ----------- 6 27.1.2009 Heard counsel for the petitioner and counsel for the Union of India and State of Bihar. In this writ application, the counsel for the petitioner has assailed the correctness of a decision dated 6th December, 1995 rejecting the claim of payment of pension under the Freedom Fighter Pension Scheme. Counsel for the petitioner with reference to the reasons indicated in the impugned order has submitted that all such reasons are based on an error of record and/or perverse and as such, this Court should re-examine the matter on merits and quash the impugned order. This Court on perusal of record would find that earlier the petitioner had moved this Court in CWJC No. 6999 of 1995 which was disposed of by an order dated 18.11.1995 with the following directions:- “In the facts and circumstances of the case I direct the State authorities that pursuant to Annexure-I the documents, which are required, be sent to the Union of India at earliest. The petitioner, if so desires, may also produce photocopies of the required documents alongwith the forwarding letter of the State Government before the authorities of the Central Government which shall pass appropriate order within a period of two months from the date of 2 receipt of the said document.” Pursuant to the aforementioned direction of this Court, the Government of India had re-considered the matter on the basis of all the materials available on record and had rejected the claim of the petitioner on all these five grounds. 1- vkius viuk vkosnu fnukad 31-3-1982 ds ckn izLrqr fd;k gS vkSj 6-2-32 esa 6-5-32 ,oa 16-9-33 ls 16-1-1944 rd tsy ;kruk Hkksxus dk nkok fd;k gS ijUrq vius nkos ds leFkZu esa ewy esa tsy izek.k i= izLrqr ugha fd;k gSA bl laca/k esa lHkh jkT;ksa dks fnukad 15-7-1983 ds i= }kjk lwfpr dj fn;k x;k Fkk fd fnukad 31-3-1982 ds ckn izkIr vkosnu ij rHkh fopkj fd;k tk;sxk ;fn mlds lkFk ewy tsy izek.k i=@dksVZ fjdkMZ layXu fd, x, gksaA 2- vkius vius nkos ds leFkZu esa th0vkj0 ls 1249@744 ,oa 125@35 dh fyLV vkQ fjdkMZ dh izfr;kW izLrqr dh gSA ijUrq buesa ;g rks irk pyrk gS fd 4 eghus ,oa 1 1@2 eghus dh ltk rFkk 50@& :0 twekZuk ftlds u fn, tkus ij 15 fnu dh vkSj ltk] gqbZ FkhA ijUrq ;g irk ugha pyrk fd mDr ltk okLro esa Hkksxh xbZ Hkh Fkh vFkok ughaA blds vfrfjDr th0vkj0 1249 esa Nsnh pkS/kjh fy[kk gS vkSj nwljs esa Nsnh flag fy[kk gSA firk dk uke ,oa irk u gksus dh otg esa ;g irk ugha pyrk fd buesa of.kZr uke vkidk gh gSA 3- vkius vkius nkos ds leFkZu esa eqaxsj tsy ls vuqiyfC/k izek.k i= izLrqr fd;k gSA ijUrq 31-3-1982 ds ckn izLrqr vkosnuksa dsvuqiyfC/k izek.k i= Lohdk;Z ugha gSA 4- vkius vius nkos ds leFkZu esa Jh cynso nkl ,oa Jh dkfrZd izlkn flag ds lgcUnh izek.k i= izLrqr i=ksa ds vk/kkj ij fopkj ugha fd;k tkrk gS vFkkZr fnukad 31-3- 3 1982 ds ckn lgcUnh izek.k i= Lohdk;Z ugha gSA oSls Hkh Jh cynso nkl dk lgcUnh izek.k i= blfy, Hkh ekU; ugha gS fd budh rFkkfir tsy ;kruk miyC/k vfHkys[k ds vuqlkj ,d o"kZ ls de gS vkSj eqaxsj tsy esa N eghus ls Hkh de gSA Jh dkfrZd izlkn flag dk lgcUnh izek.k i= blfy, ekU; ugha gS sfd miyC/k fjdkMZ ds vuqlkj bUgksaus 1932 esa tsy ;kruk dk nkok gh ugha fd;k gSA 5- jkT; ijke'kZnkr` lfefr ,oa jkT; ljdkj us vkids ekeys esa Lohd`r dh vuq'kalk ugha Hksth gSA** It has to be noted that such impugned order dated 6th December, 1995 was initially assailed in CWJC No. 5671 of 1996 but the same was also dismissed for default. The petitioner however, did not take any action for restoration of the said writ application and after more than eight years had filed this writ application on the ground that the impugned order dated 6th December, 1995 having been not tested and decided by this Court on merit, he had definitely a right to move this Court even by filing a fresh writ application. In the opinion of this Court, the writ application in fact is not maintainable because the remedy for the petitioner, when his writ application was dismissed for default, was to get that writ application restored on merit. However, keeping in view the prayer of the petitioner relating to grant of pension under freedom fighter pension scheme, this Court would also examine the matter on merit. The case of the petitioner is that he had 4 undergone imprisonment for the period 6.2.1932 to 6.5.1932 and from 16.9.1933 to 16.1.1944 and for establishing this fact, the petitioner had filed the original judgment of the both the cases which according to him made out a total period of his six months of jail custody and thus entitled for pension under the Freedom Fighter Pension Scheme. Unfortunately, this aspect of the matter is not born out from the connected records as is recorded in the impugned order. In the impugned order, it has been recorded in two judgments the name of the petitioner has been mentioned in two different manners. In one, he has been described as Chhedi Choudhary and in the other as Chhedi Singh. The explanation of the petitioner is that as a matter of fact, he had suppressed his correct name of Chhedi Choudhary in the earlier prosecution because there was a chance of harassment to his family members. Such explanation however, is immediately contradicted by the own conduct of the petitioner inasmuch as in the second case, his name has been described as Chhedi Choudhary. In the absence of parentage of such Chhedi Choudhary or Chhedi Singh in the two judgments, it was therefore difficult for the competent authority to decide as to whether the petitioner was one and same person. In that view of the matter, such reasons given in the impugned order does not suffer from any error. 5 The remaining part of the submission of the counsel for the petitioner that the Government of India Circular dated 15th July, 1983 did not put any time limit for producing the original documents is also to be noted only for its rejected. This Circular dated 15th July, 1983 as a matter of fact only seeks to extend the last date of filing of application for a certain category of persons up to 31st December, 1983. It is in relation to this explanation that the following explanation was given in the circular:- “3. In cases where Samman Pension is recommended on the basis of suffering of flogging/whipping/caning awarded by duly constituted courts, the evidence of such suffering should be based on official records such as court judgment and other records. In such cases it should be ensured that there was clear evidence that the punishment of flogging/whipping/caning awarded was actually carried out.” In the present case, the State Government itself did not find the case of the petitioner fit to be recommended and as a matter of fact had also come to a definite conclusion that its Deputy Secretary, without there being a specific recommendation of the State Advisory Committee, on his own had sent a letter favouring grant of pension to the petitioner cannot be equated with an authorized recommendation of the State Government. The plea of the petitioner in paragraph no.8 of the 6 writ application that there was a recommendation of the State Government in his favour in letter dated 17.2.1993 (Annexure-3) is also a plea of desperation inasmuch as this aspect of the matter has been explained by the respondent in paragraph no. 7.4 and 12 of the counter affidavit wherein it has been clearly mentioned that the letter dated 17.2.1993 and yet another letter dated 8.6.1994 under the signature of late P.N. Sahai, Under- Secretary were written without there being any authority vested in him and in fact was without recommendation of the State Advisory Committee. Such report of the State Government dated 8.12.1995 which has been annexed as Annexure-R-1 to the counter affidavit would therefore, leave nothing for speculation that the alleged recommendation of the State Government dated 17.2.1993, as referred to and relied by the petitioner, was not actually made by the State Government. As a matter of fact, this has also been somewhat admitted by the petitioner in a guarded manner in his rejoinder affidavit in paragraph no.8 wherein a new plea has been taken that there was no requirement of approval of State Advisory Committee in view of the fact that earlier the letter dated 17.2.1993 was sent with the approval of the State Advisory Committee. Such plea of the petitioner, however can be easily rejected in view of the wordings of the letter 7 dated 17.2.1993 (Annexure-3) which nowhere refers to the matter of the petitioner being placed before the State Advisory Committee though the petitioner himself has brought on record a document in relation to another freedom fighter namely Jagdish Chaudhary in whose case, the State Government, while making recommendation for grant of pension in favour of Jagdish Chaudhary, had clearly mentioned that the case of Jagdish Chaudhary was placed before the State Advisory Committee in the meeting held on 21.9.1984 and the Committee had recommended for grant of such pension to Jagdish Chaudhary. It is these aspects of the matter which can safely lead to an irresistible conclusion that neither the State Government nor its State Advisory Committee had recommended the case of the petitioner for grant of pension and accordingly, when the subsequent letter of the State Government dated 8th December, 1995 (Annexure-R1) had clarified that there was no recommendation of the State Government and/or State Advisory Committee in favour of the petitioner, there would be nothing more for this Court to dislodge or disturb the findings of fact as recorded in the impugned order. The Freedom Fighter Pension Scheme, being well circumscribed by the requirements of eligibility to be fulfilled by an individual, this Court can at best go into the 8 decision making process and not the merits of such decision. This Court on the basis of the analysis of the materials on record and after hearing the parties is fully satisfied that there is no error in the decision making process and the impugned order passed way back on 6th December, 1995 rejecting the claim of the petitioner for grant of such pension, does not suffer from any error. That apart, when this decision of the competent authority of the Central Government dated 6.2.1996 has been sought to be assailed after more than eight years of the passing of such order by filing this writ application on 28.9.2004, the delay itself would be fatal for maintaining this writ application inasmuch as no explanation has been given for such delay save and except that an earlier writ application filed by the petitioner being CWJC No. 5671 of 1996 was dismissed for default on 10.3.1997. Thus, for the reasons mentioned above, there is no merit in this writ application and consequently, the same is dismissed. Rsh (Mihir Kumar Jha, J.)