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Judgment
D.V. Shylendra Kumar
The Central Government, which has to take care of the entire country does not cease to amaze by its irresponsible, indifferent and inappropriate manner of functioning. There cannot be a better illustration of the careless manner in which the Central Government functions than what is revealed in the facts and circumstances presented in this writ appeal. Here is a writ appeal directed against the order dated. 15/02/2008 passed by the learned Single Judge of this Court on a Writ Petition No. 1722/2007, that had been filed by one Laxman S/o. Siddappa Naik, a Freedom Fighter, Ex-MLA, resident of Yaddalguda, Ankalagi post, Gokak taluk, Belgaum District.
The writ petitioner had approached the Court complaining that the payment of Freedom Fighters Pension was stopped with effect from 27/10/1977, which has been granted by the Central Government with effect from 25/01/1975 by the order of the Ministry of Home Affairs in NO. 24/2452/74-FFWZ.
Though the Central Government, based on the recommendation of the State Government, had employed as their agent for the purpose of ascertaining the eligibility or otherwise of the persons seeking for grant of pension under the Freedom Fighters Pension Scheme, 1972 and started paying the pension of Rs. 200/- per month as was originally envisaged under the scheme the payment ran into rough weathers, as it appears that the so called Intelligence Bureau of the Central Government submitted a report to the Central Government that the scheme was being misused by some ineligible persons, by producing false certificates issued by persons competent to issue such certificates and one such person identified by the Bureu was a MLA representing Saundatti Taluk, Belgaum District by name S.B. Padaki, who incidentally was also a freedom fighter himself and being a sitting MLA was competent to issue what is known as Co-Prisoner Certificates in favour of erstwhile freedom fighters, who had fought for the freedom of this country and on the basis of such Certificate issued by the said Mr. Padaki, the Central Government having sanctioned pension to a good number of freedom fighters, but the Bureau having reported that Mr. Padaki, was in the habit of issuing false certificates and even issuing such certificates in favour of not so genuine freedom fighters.
The Central Government purporting to act on the basis of such a report thought it proper to suspend the payment of pension in favour of the writ petitioner Mr. Laxman as well as some 48-49 other persons, who had also been granted pension on the strength of the Co-prisoner Certificate that had been issued by Mr. Padaki.
The Central Government became active on the report of the Intelligence Bureau and issued show cause notices to such persons, including the writ petitioner as well, as per show-cause notice dated 23/09/1977, a copy of which is produced as Annexure R-2, annexed to an application that has been filed along with the present writ appeal for the purpose of production of some additional documents in this appeal, on the receipt of a very definite convincing reply caused by the writ petitioner Mr. Laxman as per his reply dated 06/10/1977, copy of which is also produced as R-III which is as under:
From,
Shri Laxman Siddappa Naik, Ex. MLA., R/o Yaddalgudda Taluka Gokak [Dist. Belgaum]
To,
Shri S.S. Gupta Under Secretary to the Govt. of India Ministry of Home Affairs New Delhi- 110 001
Sir,
Sub: Grant of pension under the Freedom Fighters Pension Scheme, 1972, Ref: Your memorandum No. 24/2452/ 74-FF-WZ Dated 23.9.1977
With reference to the subject and the memo cited above, I beg to state as under for kind consideration and do justice:
I am a real and active Congress worker and Freedom fighter since many years. For taking part in the Congress movement, I was arrested by the Police and was kept in the Belgaum Prison. As such, I had applied to the Government for sanctioning me F.F. pension and it was sanctioned to me with due and full enquiry and consideration. The documents sent by me are all true and genuine.
I am an Ex. MLA and will never stoop so low as to get pension by false means.
All the papers sent by me are all true and quite genuine.
I am MLA, I have a right to issue co-prisoner''s certificate to others who were in jail with me. But how can I send my own certificate. Therefore, the co-prisoner''s certificate of Shri S.B. Padki was sent and it is quite true and genuine.
I am very sorry that my pension has been suspended on a very flimsy ground.
I, therefore, request your Honour to kindly continue my pension as before from the date from which it was suspended in the interest of justice.
Thanking you,
Yours faithfully,
Sd/- [Laxman Siddappa Naik]
to the very application and if this explanation should have been accepted, the matter necessarily should have been put to rest.
Instead, the Central Government abandoning its responsibility to take a decision by itself surrendered it in favour of the State Government, who were their agents for recommending the cases of applicants for grant of freedom fighters pension and conveniently washed off their hands at this stage to await the outcome of the action that may be taken by its Agent, the State Government.
The state Government, it appears, went about in its own manner and even thought it fit to launch prosecution against such poor hapless freedom fighters, who were subjected, not only to humiliation by the suspension of the pension already granted, but also to further harassment with the State Government even lodging criminal cases against them and in so far as writ petitioner is concerned, it was by filing criminal case in complaint No. 1954/1997 before the Court of Prl. Judicial Magistrate First Class, Gokak.
With the kind of lukewarm and indifferent manner with which the State Government prosecutions are conducted, it was no wonder, in a case of this nature the learned Magistrate acquitted the petitioner by an order dated 15/10/1980.
Though the accused person was acquitted, neither the State Government nor the Central Government appears to have taken any further steps to carry out the so called I.B. report to its logical conclusion, but it transpires that the matter was left at the stage of order of acquittal passed by the learned Magistrate.
It appears that the State Government became oblivious to the order passed by the learned Magistrate acquitting the accused/petitioner, but resorted to an alternative course of action by referring the matter further to the District Level Advisory committee, which would look into and conduct an enquiry in respect of the applications received for grant of freedom fighter pension from freedom fighters.
The version of appellant-Central Government as submitted by Sri. Rajendra, learned standing counsel for Central Government, if has to be accepted, is that the District Level Advisory Committee reported that the writ petitioner and other persons whose pension had been put on hold had not taken part in the freedom movement. A copy of the report of the District Level Advisory Committee of the State Government is produced as Annexure R-V to the same application reading as under:
Sub: Grant of Central Pension to Laxman Naik of Belgaum District
The Committee has gone through the file and in its opinion that the applicant has not taken part in the Freedom Movement Hence, the committee decided not to recommend his case for Central Pension.
Sd/-
[A.K. KULKARNI] Chairman, District Level Advisory Committee
and the letter dated 21/02/1987 addressed the State Government recommending not to restore pension, a copy of which is produced at Annexure R-IV to the application, and it appears that Central Government purporting to act on this recommendation emboldened itself to cancel the pension in favour of the writ petitioner on 23/09/1989 without even showing the basic courtesy of giving an opportunity of hearing to the freedom fighter of the proposal to cancel the pension, though the petitioner had very promptly responded to the earlier show cause notice dated 23/09/1977 as per his reply dated 06/10/1977 and thereafter the Central Government had not got back to the writ petitioner for further cause being shown or explanation being offered with any fresh proposals and having not indicated as to whether the reply of his freedom fighter given on 6.10.1977, was accepted or not!.
It is therefore the version of the Central Government that the payment of pension, which had been suspended in the year 1977, came to be cancelled as per its order dated 23/09/1989.
It appears that the writ petitioner, obviously being blissfully ignorant of this development, as there is nothing on record to indicate that either the petitioner had been given an opportunity or had been positively apprised cancellation of the pension, though Sri. Rajendra, learned Central Government Standing counsel would submit there is record with the Central Government to show that the order of cancellation had been sent by registered post which is not placed before the court and on the other hand the writ petitioner quite naturally being annoyed that the Central Government was not paying pension and had not paid the arrears of pension from 1977 onwards when the pension was suspended, came up before this Court presenting writ petition No. 1722/2007.
In this writ petition, Government of India, Ministry of Home Affairs has figured as 1st respondent, The Government of Karnataka Department of Personnel and Administrative Reforms has figured as 2nd respondent and Accountant General Office of the Accountant General has figured as 3rd respondent.
All the three respondents being served, the Central Government was represented by M/s. Diwakar Associates, State Government was represented by Shashidhar. S. Karmadi, who also appeared for the Accountant General.
Neither the State Government nor the Central Government had filed any counter to the writ petition and which fact is confirmed by Mr. Rajendra, learned Central Government Standing counsel, appearing for appellant Central Government and Sri C.S. Patil, Additional Government Advocate appearing for the 2nd respondent-State Government. The Learned Counsel appearing for Central Government as well as State Government in that writ petition not making much headway to answer the contentions raised in the writ petition, the learned Single Judge was left with no choice, but to allow the writ petition as indicated above, particularly with no counter having been filed and no worthwhile opposition having been presented before the Court by the Learned Counsel appearing for these two Governments.
It is against this order, the present writ appeal filed after expiry of 329 days from the date on which it should have been filed, to be within the period of limitation.
An application u/s 5 of the Limitation Act, is filed on behalf of the appellant seeking for condonation of delay, supported by an affidavit dated 06/01/2009 sworn to by one Paul Ekka S/o. T. Ekka, Deputy Secretary in the Ministry of Home Affairs, New Delhi.
Sri. Rajendra, learned Central Government Standing Counsel has taken us through the contents of this application and the affidavit, on a perusal of the same, we find even to say the least, it is nothing but miserably failed attempt at lacing together some blatant lies and not one word or one sentence is worthy of acceptance regarding the facts pleaded and as constituting a proper explanation for condoning the delay.
For a good measure, we have also perused the grounds raised in support of the writ appeal. It is submitted by Sri. Rajendra that one main ground on which the writ petition should have been dismissed was the delay in filing the writ petition. The writ petition was filed in the year 2007, whereas the cause of action had arisen way back in the year 1977 when the Central Government had suspended payment of pension and had taken follow up action by cancellation of pension in the year 1989 and therefore the writ petition filed in the year 2007, suppressing the cancellation of pension in the year 1989, was a writ petition woefully hit by delay and laches; that the learned Single Judge should have dismissed the writ petition only on this ground.
Before we consider the above submission we take notice of the fact and the development during the pendency of the writ petition which is that the poor writ petitioner who was a freedom fighter, who fought for the freedom of this country and who survived the tyranny of British Government, however could not survive the insult and the harassment heaped on him by the present Central and State Governments subsequent to our country attaining independence and may be perhaps unable to bear such pain and misery, breathed his last on 30/ 10/2008.
It is quite natural that the Central Government, the mighty and the big Government that it is cannot take note of the death of every citizen in this country, being oblivious of this factual position has presented the instant writ appeal against the order passed by the learned Single Judge by filing the appeal on 16/02/2009 before the Circuit Bench of the High Court at Dharwad.
One reason mentioned in the affidavit supporting the application for condonation of delay is that the Central Government was either misguided or could not make up its decision as to where the appeal should be preferred particularly in the wake of Circuit Bench of the High Court having been established at Dharwad in the month of July 2008 and its learned Standing counsel having opined and indicated to his client that the appeal may have to be filed before the Circuit Bench at Dharwad, which has the jurisdiction to entertain such appeals, particularly as the writ petitioner hailed from Belgaum District. An explanation of this nature to get over an inordinate delay of 329 days is nothing but an attempt to pass off an utter lie and a bad one at that to convince that there was some tenable explanation for the delay.
Irrespective of the factual position as to whether the Central Government was aware of the death of the writ petitioner as on 30/10/2008 or not, as quite naturally the Central Government could not be careless about such developments, the legal position is that the instant appeal filed against a dead person is a nullity in law, the appeal does not take off as the respondent had died at the very inception. It is in such an appeal all these documents relating to correspondence between Central Government and its agent the State Government and the opinion of its standing counsel etc., are all pressed into service as part of the explanation for the delay. We feel very sorry to record that the explanation is not worthy of acceptance.
Mr. Katageri, Learned Counsel, who had appeared for the writ petitioner had been directed to take notice for the legal heirs of the deceased 1st respondent, as Mr. Katageri was appearing in a related case viz., C.C.C. 2048/2009 before this Court filed by the legal representative of Sri. Laxman, complaining that notwithstanding the order passed by the learned Single Judge in W.P. No. 1722/2007, the Central Government was dragging its feet in not making payment of the arrears of pension and also in not making payment of pension upto the date of death of the writ petitioner and thereafter the family pension, in favour of his widow.
The show-cause notice dated 23/09/1977, a copy of which is produced as Annexure-RII to the application under Order 41 Rule 27 of CPC seeking for production of additional documents in the appeal reads as under:-
ANNEXURE-II REGISTERED POST
NO. 24/2452/74 FF. W2. GOVERNMENT OF INDIA Ministry of Home Affairs.
New Delhi, the 1977
MEMORANDUM
Subject -.Grant of pension under Freedom Fighter''s Pension Scheme, 1972.
*****
Shri/Smt./Km. Laxman. S. Naik had applied for grant of pension under the Scheme referred to above to this Ministry and was sanctioned provisionally a pension of Rs. 200/- per month (Rupees Two hundred only) vide 24/l/Genl/75 FFW2 dated 30/01/1975.
It has been brought to the notice of this Ministry that the applicant was not eligible for grant of pension under the said scheme for the reasons given below -
(i) Shri/Smt./Km...had not suffered 6 months imprisonment
(ii) The suffering of Shri./Smt./Km.... were not related to Freedom struggle.
(iii) The statement made by the applicant and the documents produced by the applicant mentioned below have been found to be false/ not genuine.
"Co-prisoner Certificate issued by Shri. S.B. Padaki, M.L.A."
(iv) The applicants annual income is more than Rs. 5,000/-.
(v) (Any other ground/grounds).
The pension of Rs. 200/- per month provisionally sanctioned to the applicant vide this Ministry''s latter No. 24/1/Genl/75 FF.W2 dated 30/01/1975 is hereby suspended pending enquiry.
The applicant Shri. Smt. L.S. Naik, is hereby given an opportunity to represent as to why the provisionally pension so granted to him/her should not be cancelled on the above mentioned ground/ grounds.
As regards the provisional pension already received by the applicant till date, he/she may show cause why the Government should not take appropriate steps for recovering the same.
The applicant is hereby required to reply to this show cause notice within a period of 21 days from the date of issue of this Memo filing which, the provisional pension already granted to him/her will be cancelled and further necessary legal action will be initiated for the recovery of the provisional pension amounts already received by him/her without prejudice to the Government''s right to take such other proceedings as are deemed necessary.
Sd/- (S.S. Gupta) Under Secretary to the Govt. of India.
We feel greatly pained and anguished to read the contents of this show cause notice and we cannot find words to express our dismay at the huge indifference, insensitivity and irresponsibility exhibited by the Central Government in issuing such a cause notice to an Hon''ble person who had fought for the freedom of this country and shudder to think, what an amount of pain and suffering the person should have undergone on receipt of the show cause notice.
This Country is ruled by politicians, who are insensitive and who are indifferent to the travails and needs of the citizens of this Country, with the present political leaders taking different routes than from what our leaders had taken before independence, no wonder a Freedom Fighter''s anguished pain and a genuine concerned reply got drowned in the bureaucratic quick sand of the manner of functioning of the Central Government thanks to its Secretaries ruled bureaucratic set up, supporting the system of Governance for its day to day functioning and lead by indifferent and even outright corrupt politicians such insult to a freedom fighter was only compounded by the greater insensitivity shown by the State Government.
Be that as it may, the net result of all these developments is that the Freedom fighter as of is now no more and his legal heirs are left with litigation to carry on the fight and continue to receive the harassment and humiliation heaped on them by the Central and State Governments. It is a very sorry state of affairs and we can only express our utmost concern and anguish and that the persons responsible in the two Governments at least now become a little sensitive and responsible and bestow their attention to our anguished expressions in this judgment and improve themselves and their performance for the benefit of the citizens of this Country.
This appeal has no merit, the application for condonation of delay is more meritless, there is absolutely no ground for entertaining this appeal to cause further harassment and humiliation to the legal heirs of a deceased freedom fighter. Appeal and application are both dismissed by levying exemplary cost on the Central Government which is quantified at a sum of Rs. 1,00,000/-. The cost shall be paid within six weeks from the date of receipt of a copy of this judgment and the cost shall be paid to the legal heirs of the original respondent within six weeks from today either by depositing before this Court or tendering it directly to them. The Central Government is also required to implement the order passed by the learned Single Judge. 32. If the amount is neither paid nor deposited before this Court within six weeks as indicated above, the Registry is directed to issue a Certificate in favour of the legal heirs of the writ petitioner to recover the amount as though it is a decree passed by a Civil Court.
Consequently, Misc. W. 60429/2009, 60430/2009 and Misc. W. 60654/2010 are dismissed, as the main appeal itself is being dismissed with cost.