Gajjela Komaraiah v. Delhi

Order

Petitioner Gajjela Komaraiah was granted pension under Swatantrata Sainik Samman Pension Scheme, 1980 vide proceedings No.112/3480/84-FF(HC), dated 15.05.1986. But, pension granted to him came to be cancelled provisionally from the date of sanction under letter No.F.112/3480/84-FF(HC),

dated 09.04.2001. The petitioner challenged the communication dated 09.04.2001 by filing W.P.No.27420 of 2003. In the said writ petition an interim direction came to be given to the respondents on 10.10.2006, which reads as hereunder: “In this petition, the petitioner has challenged the communication dated 9.4.2001 by which the Government of India suspended payment of freedom fighter pension to the petitioner which was sanctioned to him on 15.05.1986. From the counter-affidavit filed on behalf of Government of India and the documents annexed thereto, it is clearly established that the officers dealing with the petitioner’s case are guilty of callous negligence inasmuch as the issue enumerated in the show cause notice has not been decided even though as on today a period of 5 years and 6 months has elapsed. I would have quashed show cause notice only on the ground that there is no material to support the reason enumerated therein, but, in the interest of justice, I refrain from adopting that course and adjourn the matter to December 5, 2006 with direction that the concerned authority of the Government of India must positively pass final order in furtherance of show cause notice impugned in the writ petition, failing which the court may have to summon all the concerned officers to be present in the Court to explain their conduct in not deciding the petitioner’s case for more than 5 years and 6 months.” The 1st respondent under letter No.52/CC/24/2004-FF(HC), dated

25.10.2006 requested the 2nd respondent to send the relevant documents. Thereupon, the Principal Secretary to Government, Revenue (FF.II) Department, A.P. Secretariat, Hyderabad, requested the 1st respondent to furnish the copies of the following letters for taking necessary action if any as they are not readily traceable in the Department: (1) State Govt., Lr.No.24178/FF.II/A1/2001-2002, dt.15.10.2004 – based on which it is now stated that pension was suspended by the Government of India; (2) Copy of letter dt.23.12.2000 wherein State of A.P., sent report based on which the Government of India, have suspended the Pension to Sri Gajjala Komuraiah, vide letter No.F.112/3480/84-FF(HC), dt.9.4.2001. Later, the 2nd respondent requested the District Collector, Karimnagar, to furnish particulars as to proof of age of the petitioner. The District Collector, Karimnagar, in turn, called report Mandal Revenue Officer, Bheemadevarapally. The Mandal Revenue Officer, Bheemadevarapally conducted enquiry and submitted a report on

30.11.2006 along with relevant documents vide letter No.C/1214/2005. The District Collector, Karimnagar, in turn addressed a letter dated 30.11.2006 to the Principal Secretary to Government, Revenue (FF.II) Department, A.P., Hyderabad, recommending for restoration of pension to the petitioner. The relevant portion of the said letter reads as hereunder: “It is further submitted, that in response to the Govt. Memo.No.3037/FF.II/A1/2004-1, dt.3.6.2004, a further report on the basis of Mandal Revenue Officer, Bheemadevarapalli ref. No.C/1214/2005, dt.7.3.2005 was submitted to the Govt. vide this office ref. No.C5/5950/2004, dt.31.5.2005 requesting the Govt. for restoration of the pension to Sri G.Komraiah. In order to conform the age proof of Sri Gajjela Komraiah, the Mandal Revenue Officer has enquired into the matter and submitted the date of birth certificate of Gajavelli Kalavathi Daughter of Komraiah R/o.Mulkanoor. According to the said certificate, the Date of Birth of daughter of G.Komraiah is 04.05.1950. He further reported that, on verification of the school admission register, the entry made in the dae of birth certificate issued vide Admission No.178, dt.15.6.1967 by the in-charge Head Master, Z.P.H.S., Mulkanoor, on 27.11.2006 respect of Smt.G.Kalavathi is found correct. He also submitted a Xerox copy of S.S.C. Certificate bearing no.073712 pertaining to Sri Gajjala Ravinder S/o.Komraiah (Duly attested with Original) where in the date of birth of the son of Sri Komraiah is found as 08.08.1960. The Mandal Revenue Officer has further reported that the Surname Gajjala and Gajavelli, both are one and same, as is enquired locally.” In view of the above, it is requested for restoration of the pension in respect of the petitioner Sri Gajjala Komraiah. The Xerox copy of ref. 5 th cited of Mandal Revenue Officer, Bheemadevarapalli along with Date of Birth Certificate of Smt.Gajjala Kalavathi D/o.Komraiah (In original) and SSS certificate of Gajjala Ravinder son of G.Komraiah (Attested by the Mandal Revenue Officer, Bheemadevarapalli) are submitted herewith. This is for favour of kind information.” The Principal Secretary to Government, Revenue (FF.II) Department, A.P. Secretariat, Hyderabad, under letter No.3037/FF.II/A21/2004-5, dated 01.12.2006, recommended the case of the petitioner for restoration of pension from the date of stoppage. The relevant portion of the said letter reads as hereunder: “The District Collector, Karimnagar, has also reported that Sri Gajjala Komuraiah, S/o.late Rama Durgaiah, has participated in Freedom Fighter struggle and worked at Thiruvuru camp under the leadership of Sri Vutukuri Satyanarayana, Camp-in-charge and his age was 63 years as per Voter List of 1988 of 269-Warangal Assembly Constituency as on 1.1.1988, and the present MRO., Bhimadevarapalli, conducted enquiry in the village and two freedom fighters who are receiving the pension deposed that the age of the applicant is above 15 years as on 1.4.1947 and that he participated in Freedom Struggle. However, it may be pertinent to mention that as a reply to the Govt. of India Lr.No.F/112/3480/84-FF(HC), dt.9.4.2001, Sri Gajjala Komuraiah, in his explanation dt.29.4.2001, has submitted that there is a discrepancy in the age shown by the Revenue authorities in the Identity Card and Voters’ List pertaining to Huzurabad Assembly Constituency, and the Voters list of Warangal Assembly Constituency and that the later document shows his age correctly, and that he is ready to undergo medical test to ascertain his age. His contention was that when his eldest daughter is 50 years old now i.e., by the year 2001, how can he be 60 years of age by the year 2001 as was made out by Revenue Authorities basing on Huzurabad Assembly Constituency Voters’ List. Under the above circumstances, I am directed to request you to restore the Pension to the petitioner from the date of stoppage as recommended by the District Collector, Karimnagar vide his letter dt.31.5.2005 & 30.11.2006.” The Principal Secretary to Government, Revenue (FF.II) Department, A.P., Secretariat, Hyderabad, under letter dated

06.12.2006, requested the 1st respondent for restoration of the pension to the petitioner from the date of stoppage as recommended by the District Collect, Karimnagar, vide letters dated 31.05.2005 and 30.11.2006. The 1st respondent under letter dated 12.12.2006 cancelled the pension granted to the petitioner with effect from the date it was initially granted and ordered for recovery of the pension drawn by him till date. The said proceedings are under challenge in this writ petition.

2. It is stated in the affidavit filed in support of the petition that the petitioner is presently aged 80 years and cancellation pension granted to him at this age is arbitrary and illegal. It is further stated in the writ affidavit that the 1 st respondent cancelled the pension granted to him without adverting to the recommendations made by the State Government alongwith necessary documents as proof of his age as on the date of the Police Action. For better appreciation, I may refer para.5 of the writ affidavit, which reads as hereunder: “5. I submit that the impugned order of the Respondents is arbitrary, illegal, non-application of mind, in violation of Article 14 of the Constitution of India and in violation the Swatantra Sainik Samman Pension Scheme. I submit that in fact my case was considered by the members of the Hyderabad Special Screening Committee in the year 1984 and the same was recommended my case for granting pension under the Scheme and accordingly granted the same. When there are complaints regarding several freedom fighters, an enquiry was conducted and the then Revenue Divisional officer, without considering my case in proper perspective, on presumptions and assumptions reported that there are discrepancy in my age. I submit that I have categorically represented the respondents regarding my age and my sons and daughters age and the 2nd respondent also considered the same and requested 1s t respondent to restore my pension but the 1s t and 3rd respondents without considering the reports submitted by the 2nd respondent in a mechanical way cancelled my pension and ordered recovery of pension already paid to me, and the impugned order is nothing but non application of mind and contrary to the scheme. I submit that it was mentioned in the impugned order that the file relating to granting of pension to me was missing in the office and the same was not traceable and further observed that there are contradictions in the reports submitted by the Government of Andhra Pradesh and in view of that the pension was cancelled. I submit that the above fact would clearly show that the respondents without going into my original file came to a conclusion that I have submitted false age certificates, and the same is nothing but arbitrary, and perverse. Without there being any original records the respondents cannot come to conclusion to cancel my pension and the same is nothing but for extraneous considerations. I submit that I am reserving my right to raise all other grounds at the time of arguments. I submit that the respondent failed to consider the fact that the pension was granted to me on 15.05.1986 w.e.f. the date of my application, but in the impugned order it was mentioned that in the year 1980 there is no committee and hence my case cannot be treated as recommended by the committee. The above observation of the 1s t and 3rd respondents shows nothing but their ignorance and crystal clear their intention to cancel my pension by hook or crook. I submit that in view of above facts and circumstances it is crystal clear that the Respondents without going into the facts and to avoid the appearance before this Hon’ble Court in a hurry manner after a long lapse of more than five years cancelled my pension. I submit that the Respondents 1 and 3 failed to consider the subsequent reports submitted by the 2nd respondent while canceling pension to me. I submit that the respondents put a stigma on me at the age of 80 years without there being any truth and unless this Hon’ble Court set right the illegal action of the 1s t and 3rd respondents, I will be put to irreparable loss and grave hardships.”

3. Rule Nisi came to be issued on 30.03.2007. An interim order also came to be passed directing the respondents not to recover the pension drawn by the petitioner.

4. The respondents 1 and 3 filed counter-affidavit. S.D.Kaushik, Under Secretary in the Ministry of Home Affairs, Govt. of India, New Delhi, has sworn to the counter-affidavit. It is stated in the counter-affidavit that the claim of the petitioner was reviewed in the light of the fresh verification report and on the basis of available records/documents and the applicable provisions of the Swatantrata Sainik Smman Pension Scheme,

1980. As the petitioner failed to establish the eligibility criteria and evidentiary requirements of the Scheme, the pension granted to the petitioner came to be cancelled w.e.f. the date on which it was initially granted and ordered for recovery of the pension drawn by him. Para.19 of the counter- affidavit needs to be noted and it is thus: “19. In reply to Para 4-5, it is submitted that as per direction of the Hon’ble Court, in the interim order dated 10.10.2006, the claim of the petitioner was reviewed in the light of the fresh verification report and on the basis of available records/documents and the applicable provisions of the Swatantrata Sainik Samman Pension Scheme, 1980 and it was observed that: (i) The petitioner has not furnished acceptable record-based primary evidence in support of his claimed underground suffering. (ii) He has not furnished a valid Non-Availability of Records Certificate (iii) (iv) (NARC) from the State Government. It has been observed that there was an inherent contradiction in the State Government’s reports of 23.12.2000, 17.12.2002 and 1.12.2006 (Exhibit R-6 to R-8). The reports lack in consistency. Further, the reports highlight only the age factor of Shri Kommaraiah. Hyderabad Special Screening Committee (HSSC) under Shri G.M.Shroff was constituted on 5.10.1983 (Exhibit R-9) and pension to the claimant was sanctioned w.e.f. the date of the meeting of the HSSC. Meanwhile, this Ministry’s order dated 09.04.2001 (Exhibit R- 10)indicates that Pension was provisionally sanctioned to the petitioner w.e.f. 01.08.1980. In 1980, the HSSC was not even constituted and hence this case cannot be treated to be an HSSC- recommended case. (v) State Government has not forwarded a copy of the application (as the original file is missing), or State report or evidence etc. or any other document to show that the case was duly recommended by the HSSC under Shri Shroff. As the petitioner failed to establish the eligibility criteria and evidentiary requirements of the Scheme and State reports dated 23.12.2000, 17.12.2002 and 1.12.2006 lack in consistency, the pension of Shri Kommaraiah was cancelled w.e.f. the date it was initially sanctioned and full recovery of the pension drawn by him. (Exhibit R-11). It is submitted that the pension of the petitioner has been rightly cancelled as per law, as continued payment of pension to an ineligible person besides causing loss to the public exchequer, amounts to disrespect to the genuine freedom fighters.”

5. Heard learned counsel appearing for the petitioner and learned Asst. Solicitor General appearing for the respondents 1 and 3 and learned Government Pleader for Revenue appearing for the 2nd respondent.

6. Learned counsel appearing for the petitioner submits that the 1st respondent having lost the file at its end cannot suspend the pension granted to the petitioner on the ground of non- furnishing of the necessary documents. He further submits that the 1st respondent has not bestowed its attention to the recommendations made by the State Government for restoration of the pension to the petitioner and therefore, it is a fit case to issue writ of Mandamus to the respondents to restore the pension to the petitioner granted under under Swatantratas Sainik Samman Pension Scheme.

7. Per contra, learned Assistant Solicitor General appearing for the respondents 1 and 3 submits that the case of the petitioner came to be reviewed pursuant to the directions given by this Court in W.P.No.5335 of 1999 and the pension granted to the petitioner came to be cancelled since the petitioner failed to place on record the requisite documents detailed in para.19 of the counter-affidavit.

8. Indisputably, the petitioner was granted pension in the year 1985 based on the recommendations made by the Hyderabad Special Screening Committee and the State Government. The pension granted to him came to be kept under suspension on the ground of fresh enquiry pursuant to the directions given in W.P.No.5335 of 1999. The only discrepancy pointed out in the re-verification is with regard to the age of the petitioner. The District Collector, Karimnagar got the enquiry conducted through Mandal Revenue Officer, Bheemadevarapalli with regard to the age of the petitioner. The Mandal Revenue Officer, Bheemadevarapalli conducted enquiry and submitted a report to the District Collector, Karimnagar. The District Collector, Karimnagar, based on the report of the Mandal Revenue Officer, recommended to the State Government for restoration of the pension to the petitioner. The State Government in turn recommended the case of the petitioner to the 1st respondent for restoration of the pension. The discrepancy with regard to the age of the petitioner has been clarified by the State Government. The text of the letter of the State Government recommending the case of the petitioner for restoration of the pension has been extracted supra. Whatever doubt the 1st respondent entertained with regard to the age of the petitioner has been clarified by the State Government after due verification of the records and conducting local enquiry. Such is the situation, the 1st respondent cannot brush aside the State Government’s report on mere conjunctures and surmises. With regard to the non-furnishing of the documents, the petitioner has already furnished the documents and the same were subjected scrutiny by the Hyderabad Special Screening Committee, which recommended the case of the petitioner to the 1st respondent and the 1st respondent granted pension earlier. The 1st respondent having lost the file cannot through the blame on the petitioner that he has not furnished the necessary documents to consider his case. The pension granted to the petitioner kept under suspension as there was some discrepancy with regard to the age of the petitioner. The discrepancy has been clarified by the State Government after conducting due enquiry. Such is the situation, cancellation of the pension granted to the petitioner earlier cannot be sustained.

9. Accordingly, the writ petition is allowed directing the 1st respondent to restore the pension granted to the petitioner under Swatantrata Sainik Samman Pension Scheme, 1980. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:29t h October, 2008. Note: Issue C.C. within three days B/O // TRUE COPY // ..... REGISTRAR SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR}