Inderjeet Pathak vs Under Secretary (Freedom ...
2009 Latest Caselaw 2998 Del

*                  HIGH COURT OF DELHI : NEW DELHI
               Judgment reserved on: July 29, 2009
        Judgment pronounced on: August 04, 2009
+                   W.P. (C ) No.     22697 of 2005

%       Inderjeet Pathak                   .... Petitioner
                   Through: Mr. K.B. Rohatagi, Ms. Aparna
                            Rohtagi & Mr. Mahesh Kasana
                            Advocates
                           versus

   Under Secretary (Freedom Fighters Division) &
   Others                       ... Respondents
            Through: Mr. Anurag Kumar, Ms. Shilpa
                       Singh & Mr. Chandra Shekhar,
                       Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

1.    Whether the Reporters of local
papers may be allowed to see
the judgment?

2.      To be referred to Reporter or not?

3.   Whether the judgment should be
reported in the Digest?

SUNIL GAUR, J.

(1) This is second round of litigation for the petitioner-

Inderjeet Pathak, who claims to be wife of a freedom

fighter and the relief sought by the petitioner in this

petition is pension under the "Swatantra Sainik

Samman Pension Scheme, 1980" (hereinafter referred

to as the "Pension Scheme"), Annexure- E. Petitioner

W.P.(C ) No. 22697 of 2005 Page 1 was denied pension vide order of 26th September, 2001,

which she had challenged in W.P. (C) No. 437 of 2002,

which was decided on 22nd November, 2004, while

holding as under:-

"It is not necessary for the purpose of disposal of this writ petition to decide the above pleas on merits. For the purpose of this petition, it is sufficient to notice that the impugned order is liable to be set aside on the short ground that the show cause notice issued to the petitioner questioned the validity of her marriage while the impugned order is based on the ground that the petitioner is ineligible for grant of pension on account of not satisfying the eligibility condition, having independent income and not being dependent upon the pensioner. Petitioner was not afforded any opportunity of showing cause against this ground. Following the dictum in Motilal Lal Chand Shah (Supra) the impugned order is not sustainable and is hereby set aside. The quashing of the above would not come in the way of respondents issuing a fresh show cause notice on the grounds on which they seek to deny pension to the petitioner and after giving an opportunity to the petitioner to urge its claim in support of its entitlement to pension and passing an order in accordance with law.

The writ petition stands allowed in the above terms."

(2) In the face of the aforesaid order, the respondents

have passed a fresh order, Annexure-B, denying

pension to the petitioner, by observing as under:-

"It is evident that you were married to the late freedom fighter in the year 1967 when his first wife Smt. Sushila Pathak was alive. As such, your marriage is ab-initio-void and illegal. Besides, you have also admitted the fact of your employment with the State Bank of India. As such, the charges cited against you in the show cause notice stand established. Therefore, the family pension transferred in your name and subsequently suspended vide letter dated 4.10.1996 deserves to be cancelled.

Accordingly the competent authority has decided to cancel your dependent family pension from the date it was

W.P.(C ) No. 22697 of 2005 Page 2 sanctioned and to effect the recovery of pension already illegally drawn as revenue realization ".

(3) The aforesaid impugned order, Annexure-B, is

questioned in this writ petition on the ground that the

financial dependency is not the criteria for grant of

pension and that the petitioner had been receiving the

pension because she is the legally wedded wife of late

Sh. Shailendra Kumar Pathak.

(4) According to the petitioner, she is the nominee of

her late husband and, therefore, she is entitled to the

pension in question and denial of the same, vide

impugned order, is bad in law.

(5) In the counter affidavit, it has not been denied by

the official respondents that the petitioner was the

nominee in the application form for the pension made

by late Sh. Shailendra Kumar Pathak. However, it is

stated that on the complaint of respondent No.3, in the

Enquiry it was revealed that the petitioner could not

establish that she was the legally wedded wife of late

Sh. Shailendra Kumar Pathak, whereas, respondent

no.3 could prove it. According to the respondents, the

twin conditions for eligibility to the grant of pension in

question, is (i) relationship and (ii) should not have any

independent means of livelihood. Respondents assert

W.P.(C ) No. 22697 of 2005 Page 3 that the petitioner is an employee of a nationalised

bank and is not dependent of the late freedom fighter

and is not entitled to the pension.

(6) After having heard learned counsel for the parties

and upon perusal of the material on record, I find that

the Pension Scheme, Annexure -E, needs to be first

looked into. Clause-3 of the "Swatantra Sainik Samman

Pension Scheme, 1980" read as under:-

" 3. WHO ARE ELIGIBLE DEPENDENTS

For the purpose of grant of Samman pension, family includes (if the freedom fighter is not alive) mother, father, widower/ widow if he/she has not since remarried, unmarried daughters.

Not more than one eligible dependent can be granted pension and in the event of availability of more than one dependent the sequence of eligibility will be widow/widower, unmarried daughters, mother and father."

(7) It is evident from the Pension Scheme, Annexure-

E, that financial independence is not the criteria for

grant of this pension, which is an honour conferred

upon the freedom fighters or their dependents. This

aspect stands clarified from the Pension Scheme,

Annexure-E, itself. Introductory part of this Scheme

clearly states that the earlier Scheme was for the

benefit of the freedom fighters or their dependents who

were in need of financial assistance, whereas, under

this Scheme, benefit of pension has been extended to

W.P.(C ) No. 22697 of 2005 Page 4 all freedom fighters as a token of "Samman" to them.

In this background, the petitioner had to establish that

she was the legally wedded wife of late Sh. Shailendra

Kumar Pathak. It deserves notice that in the counter

affidavit filed by the respondent, it has been stated that

an enquiry was conducted and in that enquiry,

respondent No.3 was able to establish that she was the

legally wedded wife of late Sh. Shailendra Kumar

Pathak. In the rejoinder/replication, the petitioner has

not averred that the enquiry conducted by the official -

respondent was suffering from any material or

procedural defect. Since respondent No.3 has been

found to be the legally wedded wife of late Sh.

Shailendra Kumar Pathak, therefore, nomination in the

favour of the petitioner by itself is not sufficient to

dislodge the impugned order.

(8) This petition is without any merit and is

accordingly dismissed.

(9)     No costs.

                                                     Sunil Gaur, J.
August 04, 2009
rs




W.P.(C ) No. 22697 of 2005                                      Page 5