The Union of India (UOI) vs Shyamanand Pathak and Others The State of Bihar and Others Vs The Union of India (UOI)

These two appeals have been filed, one on behalf of the Union of India and the other on behalf of the State of Bihar.

The impugned order is on writ petition being C.W.J.C. No. 5075 of 1997 dated 2nd July, 98, which carries a direction to the Respondents to provide the Petitioner, namely, Shyamanand Pathak with a freedom fighter pension to which he is entitled and to pay arrears as well as current pension immediately.

The earlier writ petition was numbered as C.W.J.C. No. 9177/96 Shyamanand Pathak v. The Union of India and Ors. On the earlier petition the circumstances had come that the payment of pension of the Petitioner had been stopped as the record on which the Petitioner relied was forged. However, as the Counsel appearing for the Union of India had submitted that the matter has been sent to the State Government for verification the writ petition was disposed of with a direction to the State and its authorities to complete the verification and send the report to the Government of India.

In writ petition being C.W.J.C. No. 5075/97 the Union of India had filed a counter affidavit. This counter affidavit had been served upon learned Counsel for the Petitioner on 8th August, 1997. In paragraph-7 of that counter affidavit the situation has been explained that the Petitioner''s basis is the record alongwith other persons, who were processed for freedom fighter pension. It is indicated in that counter affidavit that the record on which the Petitioner relies basing his claim for pension is forged. The Petitioner ought to have refuted this allegation. The Petitioner did not do so. He permitted that counter affidavit to remain on the record. This leads one to a presumption that what the Union of India had contended is correct as the Petitioner is unable to refute the allegation made against him.

In arguments it has been submitted that the Petitioner had filed a supplementary affidavit to give certain additional facts. The contention was that in the similar circumstances on the same record about fifty other freedom fighters are receiving pension. This aspect can be of no assistance to the Petitioner that if the others may be getting pension irregularly, on which aspect the Union of India has had no occasion to verify, the pension be continued for the Petitioner.

The balance which remains is the record, which is disputed by the Union of India. On these disputed questions of facts the Court cannot direct that the Petitioner should continue to receive the freedom fighter pension.

In the circumstances, and regard being had to the totality of the record, this Court is of the opinion that the order, which directs the Union of India or the State of Bihar, to continue to pay the pension to the Petitioner cannot be sustained. The learned single judge has erred in delivering the order dated 11th April, 1997. Thus, this order is set aside.

In the result, these appeals are allowed. There shall be no order as to cost.