Letters Patent Appeal No.790 OF 2000
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Against Judgment and order dated 23rd March, 2000 passed
by a learned single of this Court in C.W.J.C. No. 8065 of
1995.
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JAGANNATH PRASAD @ JAGANNATH LAL————–Appellant
Versus
THE UNDER SECRETARY, GOVT. OF INDIA———–Respondents
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For the appellant :M/S N.K. Agrawal, Senior Advocate and
Pramod Manbansh, Advocate.
For the respondent:Mr. S.N. Pathak, SCCG.
P R E S E N T
THE HON’BLE MR. JUSTICE BARIN GHOSH
THE HON’BLE MR. JUSTICE JAYANANDAN SINGH
Barin Ghosh
&
Jayanandan Sinh,JJ: During the pendency of the appeal, the
appellant has died. An application has been filed by
the widow of the appellant for recording the death of
the appellant and for substituting the appellant by
her. The application being not opposed, the same is
allowed.
2. We have heard learned counsel for the
parties. The original appellant applied for grant of
freedom fighters samman pension on 23rd July, 1981.
The said application was rejected by an order dated
25th June, 1986. On 9th September, 1992 the original
appellant filed a writ petition, being C.W.J.C. No.
9044 of 1992, challenging the said order of rejection
dated 25th June, 1986. The said writ petition was
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allowed by an order dated 22nd October, 1992 whereby
and under the order rejecting the application of the
original appellant for grant of such pension was
quashed and Central Government was directed to pass a
fresh order. In terms thereof the Central Government
passed a fresh order dated 14th January, 1994 and
thereby accorded such pension to the original
appellant with effect from 15th November, 1993.
3. In a writ petition registered as
C.W.J.C. No. 8065 of 1995 the original appellant
contended that he was entitle to such pension from 1st
of August, 1980, when the revised freedom fighters
samman pension became effective, and if not, at least
from 23rd July, 1981 i.e. the date when he had applied
for such pension.
4. This writ petition was contested by
the Union of India. In the supplementary counter
affidavit filed, the Union of India contended that
inasmuch as there was doubt as to six months
sufferance of the original appellant, such pension was
accorded in his favour giving benefit of doubt to him.
In order to establish that there was reason to express
such doubt, the Union of India in the form of
Annexure- B to the said supplementary counter
affidavit annexed the G.R. register in relation to
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Bariarpur P.S. Case No. 16.
5. The learned single judge who dealt
with the writ petition noted that the said case was
instituted in respect of an offence which took place
on 16th August, 1942 against one Ram Singh and 47
others. In connection with the said case on 29th
September, 1942 a charge sheet dated 28th September,
1942 was submitted against the said Ram Singh and 10
other accused persons. The learned single judge noted
that the name of the original appellant featured as
one of the accused persons and it was mentioned that
the original appellant was absconding. In the trial,
learned judge noted, all the accused persons were
finally acquitted on 17th December, 1942. The purpose
of annexing the G.R. register to the said
supplementary counter affidavit was to establish that
there was reason to doubt as to whether the appellant
remained an absconder for a period of six months in
asmuch as the trial pertaining to the incident, which
occurred on 16th August, 1942, was concluded by an
order of acquittal on 17th December, 1942. However,
the learned Judge found from the same register that
there was an order signed by the Sub-Divisional
Officer without a date, which records existence of a
note of the Deputy Superintendent of Police dated 10th
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March, 1944. The purpose of the said order was to
recall the warrant of arrest and processes against the
absconders and to direct the Sub Inspector to release
their attached properties. Although this order of the
Sub-Divisional Officer is not dated but the order
itself would suggest that the said order must have
been written after 10th March, 1944 i.e. after the
note of the Deputy Superintendent of Police dated 10th
March, 1944 was brought to the notice of the Sub-
Divisional Officer.
6. In such view of the matter the
learned judge while dealing with the writ petition
came to a finding that there was no reason to doubt
that the original appellant remained an absconder for
a period in excess of six months in asmuch as from the
records it appears that the warrant of arrest against
him was recalled only after 10th March, 1944 although
he was acquitted on 17th December, 1942.
7. Furthermore the acquittal on 17th
December, 1942 was of all those persons, who had been
tried and not of the absconders. The evidence on
record therefore clearly suggested that a warrant of
arrest was issued against the original appellant in
relation to an incident which occurred on 16th August,
1942 and the same was recalled only on or after 10th
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March, 1944 and during that period the original
appellant had been treated to be an absconder. On the
basis of such documentary evidence a decision was
ultimately taken by the Central Government to award
pension to the original appellant, which clearly
demonstrates sufferance by the original appellant for
a period in excess of six months and accordingly the
learned judge in no uncertain terms has held that it
is not a case of grant of benefit of doubt to accord
such pension.
8. The learned judge while dealing with
the writ petition noted the judgment of the Hon’ble
Supreme Court rendered in the case of Mukund Lal
Bhandari versus Union of India, reported in AIR 1993
SC 2127, and applying the ratio contained therein, has
held that the original appellant was not entitled to
pension from a date anterior to the date of the making
of application for grant of pension.
9. The learned judge also took note of
the judgment of the Hon,ble Supreme Court rendered by
three Hon’ble Judges in the case of Union of India
versus M.R. Chelliah Thevar decided on 30th April,
1996 in C.A. No. 7762 of 1996, where Hon’ble Supreme
Court while reconciling the conflict in the decisions
of the Supreme Court rendered by two Hon’ble Judges
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held that if it is a clear case, then freedom fighter
samman pension is payable from the date of
application, but if pension is granted on the basis of
benefit of doubt the same is payable from the date of
the order. Having considered such binding view of the
Hon’ble Supreme Court, there was no question of
holding that the pension was payable from the date of
the order granting the same. It was obligatory on the
part of the learned single judge to direct grant of
pension to the original appellant from the date of the
application made by the original appellant for grant
of pension, but that having been not granted, the
original appellant preferred the present appeal.
10. The learned judge by the judgment
and order under appeal held in clear terms that there
was no question of grant of benefit of doubt to the
original appellant as regards his right to get
pension, but held that since the original appellant
challenged the order rejecting his application only on
9th September, 1992 by filing the first writ petition,
the pension should be granted from the date of
presentation of the said writ petition.
11. The learned counsel appearing in
support of the appeal submitted that despite six years
delay, the first writ petition was not only
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entertained, but the same was allowed and as such
there can be no effect of such delay. The delay in
filing the said writ petition, if any, it was
submitted, was not taken note of by the court. He next
contented that the said writ petition was disposed of
on 22nd October, 1992 by which the order rejecting the
application dated 23rd July, 1981 was quashed, with a
direction upon the Central Government to pass a fresh
order. The Central Government, it was submitted, was
directed to pass a fresh order on the application of
the original appellant and ultimately the order dated
14th January, 1994 was passed by the Central
Government on the said application of the original
appellant dated 23rd July, 1981. The Counsel submitted
that in such circumstances, in view of the findings
recorded by the learned Single Judge, it was not just
to direct payment of pension from 19th September, 1992
and not from the date of the application i.e. 23rd
July, 1981.
12. The learned counsel for the Central
Government submitted that from the tenor of the
pleadings of the parties filed in the writ petition it
would be evidenced that the Central Government
ultimately accorded pension to the original appellant
by giving him a benefit of doubt on the basis of the
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records contained in the said G.R. register. It was
submitted that in such view of the matter there would
be no scope of getting pension from any date earlier
than the date from which the pension had been accorded
by the Central Government. The said submission is
fallacious in asmuch as not only there is a direct
pronouncement in the judgment and order under appeal
that the facts and circumstances of the case as borne
out from the records do not suggest any scope of grant
of benefit of doubt to the original appellant, but the
fact remains that by the judgment and order under
appeal the date of grant of pension has been made
effective from 9th September, 1992, i.e. much prior to
the date of the order granting pension,but the Central
Government has not preferred any appeal or a cross
objection against the judgment and order under appeal.
13. In the circumstances, we accept the
submission of the learned counsel for the petitioner
and find no reason for not granting pension from the
date of the application for pension but from the date
of filing of the writ petition by which the order
rejecting the prayer as was made in the said
application was challenged.
15. The appeal is accordingly allowed.
As a result the judgment and order under appeal is
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modified by directing payment of freedom fighter
samman pension to the original appellant for the
period from 23rd July, 1991 to 14th November, 1993
within a period of six months from today.
( Barin Ghosh, J.)
( Jayanandan Singh, J.)
Patna High Court
Dated 26th June, 2008
Arvind/ N.A.F.R.