IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6488 of 2010 Madho Prasad Singh S/O Late Rajnath Singh R/O Vill.- Kosut, P.S.- Dhanarua, Distt.- Patna Versus 1. The Union of India, Through The Secretary, Department Of Home, New Delhi 2. The Under Secretary, Ministry of Home Affairs, (FRR) Division-CZ Section, Govt. of India, New Delhi 3. The State of Bihar, Through the Secretary, Home, Govt. of Bihar, Patna 4. The Deputy Secretary, Home (Special) Department, Govt. of Bihar, Patna ------------------------- 03. 19.10.2011 Heard Mr. Basant Kumar Chaudhary, learned Senior counsel appearing on behalf of the petitioner, Dr. Pankaj, learned Central Government counsel for the Union of India and Mr. Himanshu Kumar, Assisting counsel to G.A. 3 for the State. The petitioner questions the order dated 23.12.2009 passed by the Under Secretary, Ministry of Home Affairs, (FFR Division-CZ Section), Government of India, whereby the claim of the petitioner for grant of pension under the Swatantrata Sainik Samman Pension Scheme, 1980 (hereinafter referred to as the Scheme) has been rejected. Brief facts of the matter essential for disposal of the present proceedings is that the petitioner claims to be a freedom fighter having participated in the freedom struggle, having been arrested and made accused in a case arising out of Case No. 16S.C. /T.R. 88/42 for offences punishable under Sections 56(4) of the Defence of India Rules. The petitioner arrested on 3.11.1942, was 2 convicted and sentenced to imprisonment. The arrest of the petitioner on 3.11.1942 is admitted by the parties including the authorities of the Government of India who has passed the order impugned as well as the State Government and evidence whereof is placed at Annexure-1 series to the writ petition which includes a certified copy of the information of the matter arising out of Case No. 16S.C. /T.R. 88/42 certifying the disposal of the proceedings on 13.11.1942 and a certificate issued by the Superintendent, Central Jail, Patna. It is however further certified by the Assistant Record Keeper, District Record Room, Patna that as the records pertaining to the said case has been destroyed, hence further evidence in this regard is not available. Following the introduction of the Scheme in question in the year 1980, the petitioner filed his application for consideration of his case for the pension under the Scheme and which application of the petitioner after having been considered at the district level as also by the State Advisory Committee constituted in this regard, was forwarded by the concerned authorities of the State Government vide letter dated 14.8.1982 as contained in Annexure-3 for consideration by the Ministry of Home Affairs, Government of India. A perusal of the recommendation made by the Director-cum- Joint Secretary, Home (Special) Department, Government of Bihar placed at Annexure-3 manifests that the relevant documents required for consideration of the case of the petitioner for grant of pension, namely, the certificate of the Superintendent of Central Jail, Patna dated 12.1.1981, the Co-prisoner Certificate by Sri Shiv 3 Bhajan Singh, Member, Legislative Assembly, Bihar dated 13.5.1981 and the Non-Availability of Record Certificate were enclosed with the recommendations. The recommendation of the petitioner was considered by the Union of India in its Ministry of Home and by order dated 29.10.1992 as contained in Annexure-4, the claim of the petitioner was allowed and he was granted pension with effect from 1.8.1980 @ Rs. 300/- per month subject to the stipulation that if subsequently any of the information furnished by the petitioner was found to be false or there has been any suppression of fact by the petitioner, the grant of pension under the Scheme would be withdrawn without any notice. While the petitioner was enjoying the facility of the pension under the Scheme a Public Interest Litigation came to be filed at the behest of one Nawal Kishore Singh giving rise to C.W.J.C. No. 16525 of 2001 and a Division Bench of this Court vide order passed on 14.11.2002 required the re-examination of the cases of the freedom fighters. Thus after a lapse of almost 23 years since the grant of pension that a show cause notice was issued to the petitioner on 13.1.2005 requiring him to show cause as to why the pension granted to him be not cancelled and the amount be not recovered. Copy of the show cause notice dated 13.1.2005 has been placed at Annexure-6 to the writ petition. The only ground raised in the said show cause notice was that the Non-Availability of Record Certificate submitted by the petitioner did not bear the signature of the Superintendent of the Jail. The petitioner on his part filed his show cause reply on 7.2.2005 as contained in Annexure-7 and at the 4 same time two recommendations were issued by the State of Bihar supporting the case of the petitioner and for continuation of his freedom fighter pension. The first of such letter was issued by the Under Secretary, Home (Special) Department, Government of Bihar dated 4.7.2005 which was again followed by a second letter by the same officer on 31.12.2005 and which have been placed at Annexures- 8 & 8A to the writ petition. In no uncertain terms the case of the petitioner was recommended by the authorities of the State Government mentioning therein that a certificate issued by the Central Jail, Patna was correct. It was further mentioned that by reason of Non-Availability of the Record Certificate the petitioner has produced a certificate issued by the Co-Prisoner, namely, Sri Shiv Bhajan Singh and who supported the incarceration of the petitioner for a period of six months from 3.11.1942 to 3.5.1943. In the aforementioned circumstances, the Under Secretary, Government of Bihar recommended for continuation of the pension to the petitioner. Despite the aforesaid position, the Government of India by order dated 27.2.2007 as contained in Annexure-10 issued orders of cancellation of the freedom fighter pension to the petitioner with further orders of recovery. The petitioner filed a writ petition giving rise to C.W.J.C. No. 15424 of 2006 questioning the very issuance of the Show Cause Notice dated 13.1.2005 and while the matter was pending consideration, the order of cancellation of pension was passed on 27.2.2007 and which was also impugned in the said writ petition. A Bench of this Court upon consideration of the rival contentions was pleased to allow the writ 5 petition by order dated 24.2.2009 as contained in Annexure-11 with a liberty to the Government of India to re-consider the matter afresh. It is not in dispute that following the order dated 27.2.2007 the pension of the petitioner stands stopped. Following the liberty granted by the bench of this Court in its order dated 24.2.2009 as contained in Annexure-11 a fresh show cause notice was issued under the signature of Under Secretary, Ministry of Home Affairs on 28.5.2009, copy whereof is placed at Annexure-13 to the writ petition. Five issues were raised by the Under Secretary, Government of India raising doubt as to the authenticity of the claim made by the petitioner for freedom fighter pension of which charge nos. 4 and 5 were more ornamental in nature. The deficiencies pointed out by the Under Secretary have been set out in paragraph-2 of the impugned notice dated 28.5.2009. The Under Secretary while accepting the arrest of the petitioner on 3.11.1942 as per the jail certificate dated 12.1.1981, copy whereof has been placed at Annexure-1B to the present writ petition, has raised a doubt regarding his period of incarceration and mentions that the said certificate does not indicate the date of his release. The Under Secretary, Government of India has failed to appreciate that it is in this background that the petitioner had submitted a co-prisoner certificate in the light of the statutory provisions of Clause-9 of the Scheme, issued by Sri Shiv Bhajan Singh, who has certified his incarceration for the period of six months. In view of the aforesaid position there was no deficiency in the certificate submitted by the petitioner and to that extent the objection is completely misplaced. 6 The second objection raised by the Under Secretary is regarding the recommendation of the State Government dated 4.7.2005 and 31.12.2005 placed at Annexures-8 & 8A being not specific in recommending for restoration of the pension. The objection raised again is completely misplaced considering the specific recommendation made by the Under Secretary in his letter dated 4.7.2005 and reiterated in his letter dated 31.12.2005 placed at Annexures-8 & 8A respectively. In each of the two letters the Under Secretary, Government of Bihar while discussing the claim of the petitioner in the backdrop of the document appended and the relevant provisions of the Scheme, has concluded the matter by recommending the case of the petitioner. The relevant portion is being reproduced for the facility of the ready reference: “Annexure-8: vr,o mi;qZDr of.kZr rF;ksa ds vkyksd esa ekeys ds leh{kksijkUr ,oa isa”ku/kkjh ls izkIr dkj.k i`PNk dks larks’ktud ikrs gq, isa”ku/kkjh ds isa”ku dks pkyw djus dh vuq”kalk dh tkrh gSA d`i;k fy;s x;s fu.kZ; ls jkT; ljdkj dks Hkh “kh/kz voxr djkus dh d`ik dh tk;AÞ “Annexure-8A: vr,o Jh ek/kks izlkn flag dk ekeyk Hkh mlh vk/kkj ,oa fcUnw ij dsUnzhr gksus ds QyLo:i lh0 MCyw0 ts0 lh0 la0 6865@2005 esa fnukad 12-9-2005 dks ikfjr vkns”k dks Hkh /;ku esa j[krs gq, isa”ku/kkjh Jh ek/kks izlkn flag is0& Lo0 jktukFk flag] xzke + iks0 & dkWlwr] Fkkuk & elkS<+h ftyk & iVuk ds LFkfxr isa”ku dks pkyw djus ds laca/k esa ;Fkksfpr fu.kZ; ysus dh d`ik dh tk; ,oa d`Rr dkjZokbZ ls jkT; ljdkj dks Hkh voxr djk;k tk;AÞ Considering the aforesaid circumstances, it is more than manifest that the deficiencies so set out in the impugned show cause 7 notice was completely out of context and contrary to the documents available on the record of the proceedings. The deficiency no. 3 is in context with non furnishing of a Non-Availability of Record Certificate in the prescribed form. A copy of the Non-Availability of Record Certificate has been placed at Annexure-1 and which is certified copy issued by the court of Magistrate, Patna certifying the Non-Availability of Record pertaining to the criminal case instituted against the petitioner. Considering that the certificate of Non Availability of Records is an authentic document, the objection raised is purely technical and is rejected. The deficiencies as set out in paragraph 4 and 5 are more ornamental and do not refer to any deficiency in the claim of the petitioner rather is a reiteration of the provision of the Scheme as well as the judgment in the case of Sri Jai Govind Singh which according to the respondents do not fit into the case of the petitioner. A detailed reply was filed on behalf of the petitioner replying to each of the deficiency and which has been placed at Annexure-14 of the writ petition. Despite the circumstances aforesaid, the Under Secretary, Ministry of Home Affairs by the impugned order dated 23.12.2009 as contained in Annexure-17 has rejected the claim of the petitioner for grant of Swatantra Sainik Samman pension under the Scheme. A perusal of the order impugned as contained in Annexure-17 would manifest that the same is merely a reiteration of the deficiencies as set out in the show cause notice without dealing with the response of the petitioner placed at Annexure-14 to the writ petition. It is now well settled that where an authority seeks to withdraw the claim already 8 granted in favour of an individual he has to assign reasons for arriving at such a conclusion. In the present case the petitioner has made response to each and every deficiency pointed out in the show cause notice but the Under Secretary has proceeded to reject the same in a mechanical manner without dealing with either of them and without assigning any reason. That the issue raised against the petitioner which forms the basis of the show cause notice is not in tune with the provisions of the Scheme would be evident from the various Clauses of the Scheme which has been appended at Annexure-18 of the Writ petition. Clause 4 of the Scheme entitles a freedom fighter who has suffered a minimum imprisonment of six months in the mainland jails to claim pension. The term imprisonment has been explained in the said paragraph to include a person who has been arrested and suffered imprisonment as well as a person who has remained in incarceration by reason of orders being passed against him declaring him to be a proclaimed offender and the like. Clause 6 requires the freedom fighter to apply for grant of the pension under the Scheme enclosing the required documents in support of his claim of sufferings. Clause 9 is the all important clause by which a freedom fighter has to satisfy the imprisonment clause before he sets out his claim for pension, by producing a certificate from the concerned jail authority, a District Magistrate or State Government and in case of non-availability of any such certificate, the freedom fighter concerned is required to produce a co-prisoner certificate either from a sitting M.P./M.L.A. or Ex-M.P./M.L.A. 9 specifying the jail period. Once these conditions are satisfied and the certificates so produced by the freedom fighter is found to be genuine there is no stopping from either part of the State Government or the Union of India in denying him the justful claim. Annexure-1B of the writ petition in no uncertain terms certifies the arrest of the petitioner from 3.11.1942 but does not satisfy the period of incarceration. It is in these circumstances that following the provision of Clause 9 of the Scheme the petitioner had produced a co-prisoner certificate in the prescribed form placed at Annexure-2 to the writ petition issued by Sri Shiv Bhajan Singh, an Ex. M.L.A. who has duly certified the arrest of the petitioner from 3.11.1942 to 3.5.1943. The order for grant of pension as contained in Annexure-4 is conclusive and binding on the authorities of the Union of India and which only enables them to withdraw the pension of the petitioner in the circumstances that any of the documents submitted by him was found to be false or there was a suppression of material fact by him. The impugned order manifests that none of the conditions for withdrawal of pension as mentioned in Annexure-4 stands satisfied in the case of the petitioner inasmuch as neither the Non-Availability Record Certificate as contained in Annexure-A or the certificate of arrest as contained in Annexure 1B, or the co-prisoner certificate as contained in Annexure-2 or the recommendation of the State Government after having been scrutinized by the State Advisory Committee as contained in Annexures-8 and 8A has been doubted by the Union of India. That being the position the order impugned cannot be 10 sustained and is accordingly quashed and set aside. The petitioner would be entitled to his freedom fighter pension together with its arrears within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed. S.Sb/- (Jyoti Saran, J.)