Ram Pratap Jaiswal vs Union of India

Heard learned counsel for the petitioner, learned Standing Counsel for the State, Sri K.K. Srivastava, holding brief of Sri I.H. Farooqui, Assistant Solicitor General of India for Union of India and perused the record.

With the consent of learned counsel for the parties, we proceed to decide the writ petition finally at admission stage.

The instant writ petition under Article 226 of the Constitution of India has been preferred against the impugned order dated 17.12.2009, passed by the opposite party No. 3 Deputy Secretary, Home, Anubhag II, Civil Secretariat, Lucknow, contained as Annexure 1 to the writ petition, by which the petitioner''s application for grant of pension under ''Swatantrata Sangram Senanio Aur Unke Pariwaro Ko Diye Jane Wala Anudan Tatha Pensiono Ko Viniyamit Karne Ke Samband Main Niyamawali'' (in short Rules), has been rejected.

The State of U.P. and Government of India have framed separate schemes to acknowledge the services rendered by the citizens during struggle for independence of country and one another scheme has been framed to compassionate such persons who have sacrificed their lives for the sake of country. The petitioner, who is aged about 84 years, claims to be one of them. He has moved an application for grant of pension under the aforesaid rules and the same has been rejected by the impugned order on the ground that he does not fulfil necessary conditions provided under the rules.

While assailing the impugned order, it has been submitted by Sri Onkar Nath Tiwari, learned counsel for the petitioner that the impugned order has been passed on unfounded grounds, that too without application of mind. The material evidence on record has not been considered by the State Government while rejecting the petitioner''s claim by the impugned order. The submission of the learned counsel for the petitioner is that the impugned order suffers from vice of arbitrariness and hence, hit by Article 14 of the Constitution of India.

Attention has been invited to the report dated 5.12.2008, sent by District Magistrate, Faizabad, based on the report of Senior Superintendent of Police, Faizabad dated 14.11.2008 preceded by the report sent by Deputy Superintendent of Police, Faizabad dated 19.10.2008. A perusal of the report dated 14.11.2008 submitted by the Senior Superintendent of Police, Faizabad to the District Magistrate, Faizabad, prepared by the Deputy Superintendent of Police, Faizabad reveals that the petitioner had participated in the Quit India Movement in the year 1942. He was actively involved in the freedom struggle and on account of participation in the Quit India Movement, the petitioner''s mother late. Dhanraji Devi and the petitioner were arrested and brought to the local police station. At the residence of the petitioner, there was a branch of Gandhi Ashram Meerut, which was managed and operated by the petitioner and his mother late. Dhanraji Devi. The branch of Gandhi Ashram and other property were confiscated and seized and in consequence thereof, the petitioner and his family lost their livelihood. Their act was also declared to be unlawful. The petitioner''s father, late. Ram Bharosey Jaiswal was an employee in the railway, working on the post of bricks man and his services were terminated by the Britrishers. In the year 1942, during Quit India Movement, the petitioner and his colleagues, namely, Jagmohan Yadav, resident of Bhadarsa Nimoli, Police Station Purakalandar, Faizabad and Sukhdev Lal, resident of Nariyawan, Police Station Purakalandar, Faizabad were actively involved alongwith others. Jagmohan Yadav is alive and Sukhdev Lal is no more alive. Jagmohan Yadav has been given honorarium under the aforesaid scheme.

It appears that the entire report dated 19.10.2008, prepared by the Deputy Superintendent of Police, Faizabad, forwarded to the Senior Superintendent of Police, Faizabad has been communicated to the State Government by the District Magistrate, Faizabad, which is reproduced as under :

On perusal of the aforesaid report, it is evident that from the investigation at local level, the Deputy Superintendent of Police, Faizabad found that the petitioner had actively participated in the Quit India Movement and fought for independence of the country. The aforesaid report was forwarded to the Senior Superintendent of Police, Faizabad and later on, the same was forwarded to the District Magistrate, Faizabad. The District Magistrate, Faizabad, vide latter dated 5.12.2008 had then forwarded it to the State Government. The entire letter dated 5.12.2008 of District Magistrate, Faizabad is reproduced as under :

It appears that during pendency of the proceedings before the State Government, an information was sought from the District Magistrate and in response thereof, District Magistrate, Faizabad had communicated again to the State Government, vide letter dated 5.11.2009, informing the State Government that the petitioner had actively involved in the Quit India Movement and fought for the country. However, District Magistrate as well as Senior Superintendent of Police could not collect any information to establish that the petitioner was in jail. The letter dated 5.11.2009 sent by District Magistrate to the State Government is on record, which is reproduced as under :

The payment of pension/honorarium to the freedom fighter is Governed by aforesaid rules (supra). Rule 2 contains the ground of which a person, who fought for the country, may be paid pension under the scheme. For Convenience, Rule 2 is reproduced as under:

From perusal of the aforesaid Rule 2 (supra), it is evident that a person shall be deemed to be a freedom fighter, who has been removed from service, which includes Civil Service. It further provides that all those persons shall also be entitled for pension, whose properties were confiscated or seized on account of participation in the struggle for the independence of the country. Obviously, the petitioner''s father was removed from service and his shop was confiscated. They were apprehended and lost their source of livelihood on account of involvement in the freedom struggle.

Hon''ble Supreme Court, while considering the identical provisions of the Central Scheme, in the case in R. Narayanan Vs. Union of India and another, , has interpreted the rule and held that scheme should be interpreted, keeping in view its background that there may not be direct evidence for those, who fought for the country.

Admittedly, in the present case, the petitioner''s colleague Jammohan Yadav had filed affidavit to establish that the petitioner had participated in the Quit India Movement and the branch of Gandhi Ashram opened in his house was sealed and confiscated. Sri Manoj Mehrotra, one another Freedom Fighter, Kalyan Parishad, Faizabad and Dharmraj Singh, Director, Freedom Fighter, Kalyan Parishad, U.P., Lucknow have also filed their affidavit to establish that the petitioner had participated in the Quit India Movement.

In the case of R. Narayanan (supra), their Lordships of Hon''ble Supreme Court has held in para-9-as under :

The interpretation given by the respondents to clause 3(e) of para 4 cannot be sustained because the words used in the clause are ''permanently incapacitated'' and not ''permanently totally incapacitated''. If the stand of the respondents is to be accepted, it would be opposed to the plain meaning of the words and result in addition of more conditions to the clause what the framers of the Scheme have laid down. It cannot be disputed, in view of the certificates issued to him by the Government doctors that the appellant has suffered permanent incapacitation of his left eye due to lathi blows received by him during the freedom struggle. The question would then be whether that incapacity would satisfy the requirement of clause (e) or not. As already stated, clause (e) refers only to permanent incapacitation and not total incapacitation of a permanent nature. It therefore follows that the measure of test laid down by the clause is the permanent nature of the incapacitation and not the total nature of the incapacitation. If clause (e) is to be interpreted in the manner set out in the counter-affidavit, it would follow that a freedom fighter who has lost a leg or an arm cannot claim payment of pension on the basis of permanent incapacitation inasmuch as the incapacitation suffered by him is not of both the legs or both the arms. It would be the height of injustice to freedom fighters, who are a diminishing lot, to construe clause (e) in the said manner. Highly inequitable therefore it would be for the appellant to be denied pension under the Scheme because he has suffered loss of vision only in one eye and not in both the eyes. The respondents have failed to see that under the Scheme if a freedom fighter had undergone imprisonment or had been underground for a minimum period of six months he can be granted pension. In such circumstances can it be contended that a person who has permanently lost his powers of vision in one eye due to firing or lathi charge cannot be granted pension unlike a person who has been in prison for six months or had remained underground for six months in order to evade arrest.

In view of above, there appears to be ample evidence on record to establish that the petitioner was involved in the Quit India Movement and scarified not only his life but other members of his family including mother and father while fighting for independence of India. At the face of record, the impugned order reveals that the aforesaid facts and circumstances, which are showing the petitioner''s involvement in the Quit India Movement, has not been considered by the State Government. The Deputy Secretary, who has issued impugned order, had adjudicated the controversy mechanically. The order is cryptic and unreasoned. It was incumbent upon the State Government to consider the aforesaid facts and circumstances and material on record duly forwarded by the District Magistrate, Faizabad on the basis of report sent by Senior Superintendent of Police, Faizabad. Non-considering the entire material on record makes the order bad in law.

Now, it is well settled proposition of law that even on administrative side, the decision of the Government must be speaking and reasoned. In a case in M/s Kranti Associates Put. Ltd and another v. Sh. Masood Ahmad Khan and others, JT 2010 (9) SC 590, their Lordship of Hon''ble Supreme Court held that the administrative authorities while taking decision in the matter have to pass speaking and reasoned order. Unreasoned order shall be violative of principle of natural justice and hit by Article 14 of the Constitution of India.

Unfortunate, the part of the present case is that the petitioner, who is aged about 84 years, is running from pillar to post for just cause. The District Magistrate and Senior Superintendent of Police repeatedly state that the petitioner was involved in the Quit India Movement and one of his colleague Jagmohan Yadav has already been given pension under the aforesaid Scheme. Why the petitioner is being deprived of his pension. There appears to be highly arbitrary exercise of powers by the State Government and its authorities while adjudicating the present controversy. The Government should have allowed the petitioner''s application and pension must have been granted to him in accordance with rules, instead of delaying the matter or rejecting the same on unfounded ground. It is a fit case, where the exemplary costs should be imposed and the pension should be ordered to be paid to the petitioner who suffered for no fault on his part. The person who fought for the independence of country, must be recognized by the State Government and its authorities. The Government should have sympathetically considered the petitioner''s application. It is not the question of only monetary gain but also the question of recognition of the services rendered by the person who fought for the independence of the country.

In view of above, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed.

A writ in the nature of certiorari is issued, quashing the impugned order dated 17.12.2009, contained as Annexure 1 to the writ petition with consequential benefits alongwith costs, which is quantified to Rs. 50,000/-(fifty thousand). The costs shall be deposited by the State Government within a period of one month and the petitioner shall be entitled to withdraw the same. A writ in the nature of mandamus is also issued, directing the State Government to adjudicate the controversy afresh with regard to the payment of pension and other benefits to the petitioner under the Scheme keeping in view the observation made in the body of present judgment expeditiously, say, within a period of two months from the date of receipt of certified copy of present judgment. It shall be open to the State Government to recover the costs from the person or authority concerned, who had rejected the petitioner''s application in such a careless manner on unfounded grounds.