Sh. Sukhai Thakur vs Union Of India & Ors.
2012 Latest Caselaw 6441 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 2nd November, 2012

+                               LPA No.372/2012

      SH. SUKHAI THAKUR                                  ..... Appellant
                   Through:            Mr. I.C. Mishra & Ms. Swati
                                       Chakraborty, Advs.

                                    Versus

      UNION OF INDIA & ORS.                               ..... Respondents

                   Through:            Mr. Neeraj Chaudhari & Mr. Ravjyot
                                       Singh, Advs. for UOI.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the judgment dated 11.04.2012 of the

learned Single Judge dismissing the W.P.(C) No.2022/2012 preferred by the

appellant. The said writ petition was filed seeking a direction for grant of

Swatantrata Sainik Samman Pension (SSS Pension) to the appellant by

quashing the rejection letter dated 14.12.2007 of the respondent No.1 UOI.

2. It is the case of the appellant that he had participated in The Quit India

Movement, 1942; that he and his colleagues Mr. Rama Nand Das and others

had captured the Railway Station, Post Office and Police Station and

disconnected the communication of the British Government from

Madhubani and District Headquarter Darbhanga as well as Patna; that in this

connection a criminal case was registered against the appellant and his

colleagues vide GR No.834 on 18.08.1942 in the name and style of Emperor

Vs. Rama Nand Das & Others, under Sections 307, 147 and 135 of the

Indian Penal Code, 1860 (IPC) read with Rule 38(4) of the Defence of India

( DI) Rules; that the appellant absconded due to apprehension of his arrest

and the Court had issued Non Bailable Warrant (NBW) of his arrest since

25.09.1942, though he was never arrested; consequently, coercive action

under Section 82/83 of the Criminal Procedure Code, 1973 (Cr.P.C.) was

also taken and the movable property of the appellant was attached on

22.06.1944 and he was declared a Proclaimed Offender (PO); that the said

case was finally withdrawn on 31.05.1946 when the appellant was

discharged; that though he was not eligible under the Freedom Fighters

Scheme, 1972 but upon introduction of the SSS Pension Scheme in the year

1981, being an absconder for more than six months in the said case, became

eligible for pension; that he applied for pension under the said Scheme on

24.07.1981 stating the said facts duly supported by documents but his

application was rejected vide letter dated 14.12.2007. It is further the case

of the appellant that though the State Government of Bihar had, after due

verification of records and local verification from the District Magistrate,

recommended grant of the said pension to him on 11.10.2004 and while

many of the persons still alive and mentioned in GR No.834/1942 were

receiving the said pension, he had been wrongly denied the same. The

appellant in this regard cited the instances of one Mr. Anandi Mahto son of

late Mr. Sukhdeo Mahto and of one Mr. Panak Lal Sahu, in whose favour

the said pension had been sanctioned.

3. The learned Single Judge dismissed the writ petition without even

inviting any counter affidavit from the respondents, observing that for a

person to be eligible for pension under the Scheme, he should have on

account of participation in the freedom struggle remained underground for

more than six months for the reason of being a PO or one on whom an award

for arrest or head was announced or one for whose detention, order was

issued but not served; that the Scheme further required documentary

evidence, by way of Court's / Government's order proclaiming the applicant

as an offender, announcing an award on his head or for his arrest or ordering

his detention, to be produced and in the absence of such primary evidence, a

Non-availability of Records Certificate (NARC) to be produced from the

concerned State Government/ Union Territory Administration along with a

Personal Knowledge Certificate (PKC) from a prominent freedom fighter

who has proven jail suffering of a minimum of two years and who happened

to be from the same administrative district; that without the said formalities

being complied, the Central Government could not consider a claim for such

pension; that the appellant had not furnished primary evidence duly verified

by the State Government in support of his claim; that though he had

submitted a copy of an extract of the order sheet of GR No.834/1942 but the

same had not been verified by the State Government from official records;

that the order sheet of GR No.834/1942 furnished by the appellant also did

not indicate the exact period of his underground suffering and did not

indicate whether the appellant absconded, on being a PO, or one on whom

an award for arrest /head was announced or one whose detention order was

issued but not served - the same also did not indicate the parentage of the

appellant; that the appellant had also not furnished a valid NARC from the

State Government; though the appellant had furnished a PKC but the issuer

of the said Certificate had also not furnished any record / evidence of his

own jail suffering of a minimum of two years. The learned Single Judge

also found the PKC furnished by the appellant to be doubtful because the

issuer thereof was certifying underground suffering of the appellant for the

period when the issuer himself claimed to be in jail. The learned Single

Judge thus held that the appellant had not satisfied the prescribed

requirements for being eligible for pension.

4. It being the case of the appellant that on the basis of the same

document of GR 834/1942, Mr. Anandi Mahto and Mr. Panak Lal Sahu had

been granted pension under the Scheme, notice of this appeal was issued and

the respondents directed to file counter affidavit. In compliance thereof, a

counter affidavit has been filed by the Director, Freedom Fighters and

Rehabilitation Division, Ministry of Home Affairs, Government of India. It

is pleaded therein (i) that the writ petition is highly belated - though the

application of the appellant for pension was rejected on 14.12.2007 but the

writ petition had been filed in the year 2012; (ii) that the appellant had only

produced a photocopy of the extract of the order sheet of GR No.834/1942;

(iii) that the verification of the said photocopy was sought from the State

Government of Bihar which reported that the records relating thereto had

been destroyed though the names of the persons on the photocopy of GR

No.834/1942 appeared to tally with the list of disposed off records; (iv) that

on subsequent inquiries, it was disclosed by the State Government of Bihar

that the records of GR No.834/1942 had been destroyed in 1987; (v) that the

said document thus could not be considered as verified; (vi) that though the

State Government of Bihar was requested to furnish the NARC but the same

was not furnished inspite of repeated demands; (vii) that production of

NARC is an essential requirement before pension on the basis of PKC can

be sanctioned; (viii) that the PKC submitted by the appellant was also not

valid since the issuer thereof himself was in jail between 18.08.1942 and

17.06.1946, though the period of underground suffering claimed by the

appellant is from 18.08.1942 to 30.09.1943; (ix) that the issuer of the

Certificate also could not provide any documentary evidence of his own jail

suffering for two years which is also essential to be an eligible certifier; and

(x) that the case of Mr. Raghubar Mehto and Mr. Sukhdeo Mehto were

based on a different document i.e. extract of Court record of GR

No.822/1942 and pension was not granted to them on the basis of PKCs and

therefore the comparison of the present case with the case of Mr. Raghubar

Mehto and Mr. Sukhdeo Mehto was not appropriate.

5. The State of Bihar though impleaded as the respondent No.3 has not

been served. The counsel for the appellant states that since the rejection is by

the Central Government and the Government of State of Bihar had in fact

recommended his case, the State of Bihar is not a contesting party and need

not be served.

6. The photocopy of document being an extract from the order sheet in

the case of Emperor Vs. Rama Nand Das & Others in the Court of Mr. S.S.

Prasad, Magistrate, 1st Class, Madhubani, District Darbhanga, GR

No.834/1942, on which the claim of the appellant hinges, shows that the 39

accused mentioned therein and in which Mr. Anandi Mahto, Mr. Panak Lal

Sahu and the appellant were included, were absconding and were discharged

on 31.05.1946.

7. The counsel for the appellant has argued that considering that the GR

is of the year 1942 and the 39 accused mentioned therein were said to be

absconding till 31.05.1946, the factum of the appellant having remained

absconding for more than six months as is required to be eligible for pension

under the Scheme is writ large. He has based his case on the appellant being

similarly situated as Mr. Anandi Mahto and Mr. Panak Lal Sahu who were

granted pension on the basis of the same document, photocopy of which has

been produced by the appellant.

8. The respondent Central Government, as would be apparent from a

narration of the contents of their counter affidavit, has not denied sanction of

pension to Mr. Anandi Mahto and Mr. Panak Lal Sahu. Rather there is no

reference to Mr. Panak Lal Sahu in the counter affidavit and with respect to

Mr. Anandi Mahto, it is stated that the sanction of pension was on different

documents.

9. The counsel for the Central Government has produced the original file

relating to Mr. Anandi Mahto before us and which has been scanned by us.

We find the said file to be also containing the same photocopy i.e. the

extract from the order sheet dated 07.12.1962 in GR No.834/1942 on which

the appellant basis his claim. The notings in the said file record that the

original GR No.834/1942 is on the file of Mr. Manohar Lal Yadav and on

the basis thereof pension was sanctioned with effect from the year 1998,

even though Mr. Anandi Mahto had also applied in the year 1981.

10. The counsel for the respondent has been unable to show as to why,

when on the basis of the same document and facts, pension was sanctioned

to Mr. Anandi Mahto, it should not be sanctioned to the appellant.

11. We accordingly set aside the order dated 11.04.2012 of the learned

Single Judge and allow W.P.(C) No.2022/2012 filed by the appellant by

quashing the letter dated 14.12.2007 of the respondents No.1&2 of rejection

of the claim for SSS Pension of the appellant. Though the appellant had

claimed pension from the year 1981 and though pension on similar facts was

sanctioned to Mr. Anandi Mahto with effect from 1998, but owing to the

delay, laches and acquiescence on the part of the appellant in preferring the

writ petition only in the year 2012 inspite of rejection of his claim on

14.12.2007, we direct payment of pension to the appellant with effect from

the date of filing of the writ petition i.e. 01.04.2012. We further direct that

subject to the appellant complying with the formalities if any required to be

complied with in this regard, the arrears of pension be released to the

appellant within six weeks from today and future pension be also disbursed

as per the Scheme. The respondents No.1&2 having rejected the claim of

the appellant inspite of the appellant being similarly placed as Mr. Anandi

Mahto, we also impose costs of `25,000/- payable by the respondents

No.1&2 to the appellant within six weeks from today.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE NOVEMBER 02, 2012 'gsr'