Ganpatrao Chhotuji Gabhane & Ors vs The State Of Maharashtra Thr. Its ...
2017 Latest Caselaw 3135 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR

                  WRIT PETITION NO.1868 OF 2005


1. Shri Ganpatrao Chhotuji Gabhane,
   Aged about 86 years,
   Occupation - Retired,
   R/o Ganjipeth, Near Shitalamata
   Mandir, Nagpur.

2. Smt. Parvatibai Shankarrao Bawankar,
   Aged about 65 years,
   Occupation - Household,
   R/o Baji Mandi, Sitabuldi,
   Nagpur.

3. Shri Madanmohan s/o Multachand
   Acharya,
   Aged about 70 years,
   Occupation - Retired,
   R/o 126, Farmland,
   Ramdaspeth, Nagpur.

4. Shri Satyanarayan s/o Chandrabhushan 
   Shukla,
   Aged about 83 years,
   Occupation - Pensioner,
   R/o Dosar Bhawan,
   Opposite Police Station,
   Central Avenue Road,
   Nagpur.

5. Adv. Sitaram Vitthalrao Khadloya,
   Aged about 76 years,
   Freedom Fighter,




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    R/o 16, Bajoria Nagar,
    Yavatmal.

6. Shri Ganeshprasad Yogeshwarprasad
   Vajpayee,
   Aged about 74 years,
   Freedom Fighter,
   R/o Triveni Chhaya,
   Sanewadi, Wardha.

7. Shri Pralhad Krushnarao Rebhe,
   Aged about 77 years, 
   Freedom Fighter,
   R/o Gandhi Chowk,
   Wani, Dist. Yavatmal.

8. Shri Rangrao Shamrao Deshmukh,
   Aged about 76 years,
   Freedom Fighter,
   R/o Dhanora Sao, 
   Taluka Umarkhed,
   Dist. Yavatmal.

9. Shri Bhagwan s/o Shankar Gore,
   Aged about 75 years,
   Freedom Fighter,
   R/o at Palsi, Tah. Umarkhed,
   Dist. Yavatmal.

10. Shri Pundlik Daulatrao Khandagale,
    Aged about 72 years, 
    Freedom Fighter,
    R/o Ayodhya Nagar,
    C/o Raju Gaikwad,
    Nagpur.

11. Adv. Shri Rambhau Narayan Kolhe,
    Aged about 82 years,
    Freedom Fighter,




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     R/o 49, Ramkrishna Nagar,
     Wardha Road, Nagpur.

12. Shri Bhayyaji Parasrao Deshmukh,
    Aged about 72 years,
    Freedom Fighter,
    R/o Pratap Nagar, Rakesh Bhavan,
    C/o Pannase, Nagpur.

13. Shri Ramawatar Ramlal Awasthi,
    Aged about 73 years,
    Freedom Fighter,
    R/o Vivekanand Nagar,
    Kamptee, Dist. Nagpur.

14. Shri Vasantkumar Anantram Chourasiya,
    Aged about 70 years, 
    Freedom Fighter,
    R.o Tekdi Road, Sitabuldi, Nagpur.                   ... Petitioners


       Versus


1.     The State of Maharashtra,
       through its Secretary,
       Home Department,
       Mantralaya,
       Mumbai-400 032.

2.     The Collector,
       Freedom Fighter Cell,
       Nagpur.                                           ...  Respondents


Shri K.B. Ambilwade, Advocate for Petitioners.
Shri N.S. Rao, Assistant Government Pleader for Respondents.




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   CORAM : R.K. DESHPANDE & MRS. SWAPNA JOSHI, JJ.
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    DATE OF RESERVING THE JUDGMENT       :     7    June, 2017
                                                               

   DATE OF PRONOUNCING THE JUDGMENT : 14th June, 2017


   JUDGMENT (Per R.K. DESHPANDE, J.) :

1. This petition is filed by the freedom fighters or their

dependents challenging reduction in the amount of monthly

pension of Rs.3,000/- granted to them under the Scheme of

Swatantra Sainik Samman Pension, 1980 which is brought down to

Rs.500/- per month. The facts are as under :

2. By issuing the Government Resolution dated 22-1-1986,

the State of Maharashtra introduced a Scheme of Swatantra Sainik

Samman Pension, 1980 to the freedom fighters, who participated in

Goa Liberation Movement Phase-II (1954-55) and settled down in

Maharashtra. It was made effective from 1-5-1985 and was

extended to their dependents also. All such persons, who suffered

the punishment of imprisonment or were admitted in the hospital

for the treatment of injuries suffered by them in the movement,

were held entitled to it. In order to identify such persons, the

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criteria were prescribed by issuing the Government Resolution

dated 7-8-1986. The persons found eligible were held entitled to

monthly pension of Rs.150/- initially, with effect from 1-5-1985,

and this amount was gradually increased/enhanced, and ultimately

as per the notification dated 23-2-1987 issued by the State

Government, it was enhanced to Rs.3,000/- per month.

3. On persuasion of the State Government, the Central

Government also obtained the sanction from the President of India

to grant provisional pension of Rs.3,000/- per month plus dearness

relief at the rate admissible from time to time to the freedom

fighters of Goa Liberation Movement with effect from 20-6-2003. It

was also extended to the dependents of such freedom fighters. This

was informed by the letter dated 18-8-2003. The letter recites that

the pension will be for life-time of the recipient and would be in

addition to the pension, if any, sanctioned by the State

Government. It is made subject to further revision by the President

of India. The said letter states that the pension shall be liable to be

cancelled/modified without any notice if it is found that it was

sanctioned on the mistaken ground/false information, and the

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Government shall have full right to recover it.

4. The petitioners are the freedom fighters of Goa Liberation

Movement and they are entitled to the benefit of the aforestated

Pension Scheme introduced by the State Government as well as the

Central Government. They are actually getting the pension under

the Scheme of the State Government with effect from 1-5-1985 as

revised from time to time, and from the Central Government with

effect from 20-6-2003. There is no dispute about their entitlement

to such pension from the State Government as well as the Central

Government.

5. The challenge in this petition is to the circular/order

dated 16-11-2004 passed by the State Government reducing the

amount of pension from Rs.3,000/- per month to Rs.500/- per

month with effect from the date from which the Central

Government has started paying the pension to the petitioners. It

also proposes to recover the amount of pension over and above

Rs.500/- per month paid by the State Government up to 16-11-

2004. It is the ground of challenge raised in the petition that once

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the pension is granted under the Scheme for the freedom fighters, it

cannot be withdrawn or curtailed. The challenge is also to the

recovery of an amount over and above Rs.500/- per month with

retrospective effect. The apprehension of the petitioners is that for

the period from June, 2003 to January, 2004, an amount of

Rs.26,000/- + Rs.18,000/-, i.e. total Rs.44,000/- was paid to them

towards the pension, and after deducting the amount of Rs.9,000/-,

the balance amount of Rs.35,000/- is proposed to be recovered by

the State Government in ten equal installments. This Court, while

admitting the matter on 6-10-2006, has stayed the recovery of the

amount from the petitioners.

6. In response to the petition, it is the stand taken by the

State of Maharashtra that the Government of India has made

applicable the Scheme of Swatantra Sainik Samman Pension, 1980

to the freedom fighters, who have participated in Goa Liberation

Movement Phase-II (1954-55) from the month of June, 2003 and it

is payable to the persons to whom the State Government has

sanctioned the State freedom fighters pension. It is the stand taken

that the State Government has every right to make the changes in

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the policy or alter it or to stop it. According to it, a policy decision

is taken that the freedom fighters, who received Swatantra Sainik

Samman Pension from the Central revenue, will get the State

pension at the rate of 25% in addition to the Central Samman

Pension. Accordingly, a policy decision is taken, which was

communicated to the petitioners on 16-11-2004, i.e. by an

impugned circular/order. It states that the petitioners have

received the extra amount of Rs.2,500/- per month from the State,

whereas they were eligible only to receive an amount of Rs.500/-

per month and, therefore, the recovery is proposed.

7. The moot question is whether the State Government is

competent to reduce or stop the pension once granted to the

freedom fighters under the Scheme of Swatantra Sainik Samman

Pension, 1980 for their participation in Goa Liberation Movement

Phase-II (1954-55)? If it is answered in the positive, the next

question would be whether the proposed recovery with

retrospective effect is permissible?

8. In the case of State of Jharkhand & Ors. v. Jitendra Kumar

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Srivastava & Anr., reported in AIR 2013 SC 3383, the Apex Court

was dealing with the pension granted to the employees in public

employment where the pension is made available by way of

statutory provisions. In this context, it holds that the pension is

hard earned benefit which accrues to an employee and is in the

nature of "property", which cannot be taken away without the due

process of law as per the provision of Article 300A of the

Constitution of India. There was no provision in the statutory rules

for withholding of pension or gratuity in a particular situation, but

by issuing executive instructions, the pension was withheld on the

ground, which was not available under the statutory provisions.

The Court holds that the attempt on the part of the Government to

take away a part of pension without any statutory provision and

under the umbrage of administrative instruction cannot be

countenanced.

9. No doubt, where the pension is governed by the statutory

rules, its grant is not left to the discretion of the Government. It

becomes a matter of right to property, within the meaning of Article

300A of the Constitution of India. The antiquated notion of

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pension being a bounty a gratituous payment depending upon the

sweet will or grace of the employer not claimable as a right, which

is enforceable, has been swept under the carpet by the decision of

the Constitution Bench of the Apex Court in the case of Deoki

Nandan Prasad v. State of Bihar and Ors., reported in

(1971) 2 SCC 330, which has been taken into consideration by the

Apex Court in the case of Jitendra Kumar Srivastava, cited supra.

The Apex Court ultimately holds in para 14 of the decision in the

case of Jitendra Kumar Srivastava, as under :

"14. Article 300A of the Constitution of India reads as under :

"300A. Persons not to be deprived of property save by authority of law.-- No personal shall be deprived of his property save by authority of law."

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or

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gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."

10. The question is whether the pension granted to the

freedom fighters or their dependents for their life time in exercise

of the discretionary power of the State or the Central Government,

can be termed as a "right to property", within the meaning of

Article 300A of the Constitution of India, which cannot be taken

away either partly or fully without such reservation being contained

in the document granting pension?

11. The decision of the Apex Court in the case of Mukund Lal

Bhandari and others v. Union of India and others, reported in

AIR 1993 SC 2127, highlights the object of introducing such

Scheme in para 9 of its decision; the relevant portion of which, is

reproduced below :

"9. ... The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who

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had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The Scheme would retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependants. The preference in employment, allotment of accommodation and in admission to schools and colleges to their kith and kin etc. are also the other benefits which have been made available to them for quite sometime now."

12. In the subsequent decision of the Apex Court in the case of

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Gurdial Singh v. Union of India and others, reported in

(2001) 8 SCC 8, it is held in para 7 of the judgment as under :

"7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of 'beyond reasonable doubt'. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his

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favour unless the same is rebutted by cogent, reasonable and reliable evidence."

13. In the decision of the Apex Court in the case of Mukund

Lal Bhandari, cited supra, it is held that the object in granting

pension to the freedom fighters is not to reward or compensate the

sacrifices made in the freedom struggle but to honour and also to

mitigate the sufferings of those who had given their all for the

country in the hour of its need. It is also noted in the said decision

that many of those who do not have sufficient income to maintain

themselves refuse to take benefit of it, since they consider it as an

affront to the sense of patriotism with which they plunged in the

freedom struggle. It is the honour to acknowledge the valuable

sacrifice. The decision of the Apex Court in the case of Gurdial

Singh, cited supra, holds that it should not be forgotten that the

persons intended to be covered by the Scheme have suffered for the

country about half a century back and had not expected to be

rewarded for the imprisonment suffered by them. It further holds

that once the country had decided to honour such freedom fighters,

the bureaucrats are expected to keep in mind the purpose and

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object of the Scheme.

14. In our view, the aforesaid decisions recognize the

phenomenal spirit of patriotism with which the honour of granting

life time pension is conferred upon the freedom fighters for their

long struggle for the entire nation which emerges as the

beneficiary. A spirit of patriotism cannot be forgotten and burried

in the books of Indian history. The freedom fighters, who unitedly

fought for the freedom of the State or the nation irrespective of

their cast, creed, religion, etc., are the inspirators for the people in

India to remain secular and united. We cannot forget the culture

and traditions of the people in India to honour and respect the

freedom fighters. By permitting reduction in or stoppage of

pension payable to the freedom fighters, we would be losing our

own values, identity, principles and the importance of the days of

freedom struggle.

15. We are of the view that the freedom fighters stand on a

higher pedestal than the employees in public employment, though

the grant of pension to them is a discretionary exercise by the State

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or the Central Government. Pension to the freedom fighters would

certainly be a "property", within the meaning of Article 300A of the

Constitution of India. Once the State or the Central Government

grants such pension to the freedom fighters or their dependents for

their life time, it cannot be withdrawn partially or fully unless such

right is reserved in the instrument of granting pension for some

valid reasons.

16. After understanding the position of law, we proceed to

deal with the case in hand. Goa Liberation Movement was

launched to end 435 years' Portuguese rule in Goa. The revolt,

demonstration and agitation gained momentum in the entire

country. The large scale protest resulted in struggle, arrest and

detention of the participants in such movement. Ultimately, the

sacrifice and sufferings by the people, who invested themselves in

the freedom movement with the sense of patriotism, has paid the

freedom of Goa from Portuguese rule on 19th December, 1961. In

the recognition of it, the mitigating measures were taken to

introduce the Scheme of Swatantra Sainik Samman Pension, 1980

by the State Government and the Central Government, which is in

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the nature of honour conferred upon the freedom fighters. All such

persons, who suffered the punishment of imprisonment or were

admitted in the hospital for the treatment of injuries suffered by

them in the movement, were held entitled to it.

17. Unfortunately, the respondents have forgotten the spirit of

patriotism, struggle and sufferings by the freedom fighters for the

nation and the object with which the policy granting pension was

introduced. The power of the State Government to change or alter

the policy decision cannot be doubted, but it cannot be in ignorance

of culture and healthy traditions of the Indian People to honour and

respect the freedom fighters of the nation. The impugned action

can be described as abasing the freedom fighters and losing our

own values and importance of the days of freedom struggle. It is

ignored that at the time of filing of this petition, in the year 2005,

the petitioners were of the advanced age. Over and above this, to

direct retrospective recovery of the amount paid to them amounts

to adding an insult to injury. The amount of pension of the

freedom fighters as on this date in the entire State of Maharashtra

would hardly be of any financial burden upon the State exchequer.

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The action impugned cannot, therefore, be countenanced.

18. It is neither the stand taken by the State Government

before us nor any document is produced on record to indicate the

reservation of right, either to stop the pension completely or to

reduce it partly on certain grounds. It is also not the stand taken

that the pension granted by the State Government was to continue

only till the date when the Central Government grants such pension

to the petitioners. On the contrary, the sanction of the President of

India obtained by the Central Government, as it appears from the

communication dated 18-8-2003, clearly shows that the grant of

pension by the Central Government is in addition to the one which

is granted by the State Government. The unilateral sudden change

in the policy decision without the sanction from the President of

India cannot be sustained.

19. We, therefore, hold that once the pension was granted to

the freedom fighters, the State Government was not competent

either to stop the said pension fully or to withdraw or reduce it

partially for any reasons whatsoever unless a case is made out that

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such pension was obtained on mistaken grounds or false

information, as is contained in the order dated 22-7-2004 passed by

the Central Government. No such case is made out by the

respondents. Consequently, the alternate question of recovery with

retrospective effect does not survive.

20. In view of above, we allow this petition and quash and set

aside the impugned circular/order dated 16-11-2004, bearing

No.Misc-2004/CR-161/04/FFC-1, issued by the General

Administration Department of the State of Maharashtra and

restrain the respondents from reducing or recovering the amount of

pension payable or paid to the petitioners by the State Government.

We also direct the respondent Nos.1 and 2 to pay to the petitioners

all arrears of pension at the rate of Rs.3,000/- per month with

effect from 16-11-2004 after deducting the amount, if any, already

paid. This direction be complied with within a period of four

months from today.

21. Rule is made absolute in above terms. No order as to

costs.

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22. We do not want the petitioners to struggle for getting

arrears of pension by filing contempt petition. Hence, we direct

that the matter be listed on 30-10-2017 to see the compliance.

                      JUDGE.                                         JUDGE.  

  Lanjewar