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G. Ramasubbu Pillai and ors. Vs. the Government of India, by the Under Secretary, Ministry of Home Affairs and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ80
AppellantG. Ramasubbu Pillai and ors.
RespondentThe Government of India, by the Under Secretary, Ministry of Home Affairs and ors.
Cases ReferredIndia and Schmidt v. Secretary of State
Excerpt:
- .....substance. the said scheme formulated by the government of india is known as the freedom fighters' pension scheme of 1972. the said scheme laid down the class of such freedom fighters who will be covered by the scheme and also prescribed certain conditions and procedure for the applications to be made and for the grant of pension thereunder. for a person to become eligible for the grant of pension under the said scheme, he should have suffered imprisonment of not less than six months prior to 15th august, 1947 the date on which the country attained independence. a person claiming the benefit of pension under the scheme has to produce the records of the jail or the criminal courts to prove that he has in fact suffered imprisonment during the relevant period. but if such records are not.....
Judgment:
ORDER

G. Ramanujam, J.

1. As the point involved in all the above writ petitions is the same, they are dealt with together. The facts involved in all the matter are also substantially the same and as such it is sufficient to deal with the facts in the first case, i.e., W.P. No. 197 of 1978.

2. The first respondent herein had proposed a scheme for rehabilitation of those persons who participated in the National Freedom Struggle and sacrificed the prospects of all livelihood and who were actually without any means of substance. The said Scheme formulated by the Government of India is known as the Freedom Fighters' Pension Scheme of 1972. The said Scheme laid down the class of such freedom fighters who will be covered by the Scheme and also prescribed certain conditions and procedure for the applications to be made and for the grant of pension thereunder. For a person to become eligible for the grant of pension under the said Scheme, he should have suffered imprisonment of not less than six months prior to 15th August, 1947 the date on which the country attained Independence. A person claiming the benefit of pension under the Scheme has to produce the records of the jail or the criminal Courts to prove that he has in fact suffered imprisonment during the relevant period. But if such records are not available, a certificate from a co-prisoner who is either a sitting M.L.A. or M.P. or former M.L.A. or M.P. has to be produced in evidence of such imprisonment.

3. All the petitioners herein applied for the grant of pension under the said Scheme on production of co-prisoner's certificate as required under the Scheme. Their applications were considered and pension under the said Scheme was actually sanctioned by the President of India for life on various dates in 1972 and they were being paid pension from the date of sanction by the President of India. All on a sudden, without any prior notice the petitioners received a communication, dated 30th November, 1976 from the Government of India, the first respondent herein, stating that the pension given to them may be treated as cancelled and that the amounts already paid to them as pension will be recovered by taking necessary action by the State Government. Subsequently, proceedings under the Revenue Recovery Act have been initiated against the petitioners for recovery of the amounts of pension paid to them before the said order of cancellation of pension was issued. It is at that stage the petitioners have come before this Court seeking the issue of a writ of certiorari from this Court to quash the order of the first respondent dated 30th November, 1976 under which the pension granted to the petitioners and others had been cancelled and a direction has been given to the State Government to recover the pension already paid by taking necessary action.

4. The contentions advanced on behalf of the petitioners are two-fold. One is that the pension to freedom fighters having been sanctioned in pursuance of the provisions of the Freedom Fighters' Pension Scheme of 1972 after scrutiny and local enquiry as regards the factum of the petitioners suffering an imprisonment for a period of six months, there is no question of the first respondent going back on the findings given at that stage and withdrawing the pension earlier granted. The second point urged is that in any event, the impugned order, dated 30th November, 1976 cancelling the pension granted to the petitioners and directing recovery of the amounts already paid is clearly violative of the principles of natural justice, in that all the petitioners herein have in fact been condemned unheard and that no show-cause notices have been given to them before the benefit of pension granted to them is withdrawn.

5. As against these contentions, the learned Central Government Standing Counsel, Mr. U.N.R. Rao, appearing for the first respondent contends that the conferment of benefit under the Scheme to the petitioners is purely ex gratia and, therefore, the first respondent is entitled to withdraw the benefit at any time it likes if they felt that the petitioners had been wrongly granted the benefit under the Scheme, and that the grant of pension, to all of them was only provisional subject to cancellation on further scrutiny of materials. If is next pointed out by the learned Counsel for the first respondent that the impugned order is only administrative in nature and, therefore, there is no question of following the principles of natural justice before passing the same.

6. In this case to appreciate the rival contentions the provisions of the Freedom Fighters' Pension Scheme, 1972, under which the petitioners have been granted pension have to be looked into. The said Scheme came into force on 15th August, 1972. That Scheme provided for the grant of pension to living freedom fighters, their families if they are no more alive, and to the families of martyrs. The minimum pension Under the scheme is Rs. 200 per month if the freedom fighter is alive. In the case of families, it will vary from Rs. 100 to Rs. 200 per month, but not more than one member of the family can be granted pension under the said Scheme. That Scheme also covers persons who took part in the freedom struggle in the former French and Portugese territories in India and also the persons who participated in the I.N.A. movement and in the Independence League. For eligibility of this pension under the Scheme, a person should have suffered a minimum imprisonment of six months in the mainland jails before independence. However, ex-I.N.A. or ex-Military persons will be eligible for pension if the imprisonment or detention suffered by them was outside India. For the purpose of determining the minimum period of imprisonment of six months, the broken periods of imprisonment will have to be totalled up and counted as one. The procedure for claiming the benefit under the Scheme is also set out therein. As per the procedure set out, an applicant should furnish the following documents along with his application. (1) Certificates from the concerned jail authorities, District Magistrates or the State Government to the effect that the applicant has suffered imprisonment as required under the Scheme; (2) In case of non-availability of such certificates, co-prisoner certificate from a sitting M.P. or M.L.A. or from an ex.M.P. or an ex.M.L.A. specifying the jail period; (3) In the case of persons remaining underground or ex-I.N.A. person, a different certificate is required. On production of such certificates along with the applications, the applications will be scrutinised by the Government and sanction will be issued if the applications are found to be in order and the applicants are found to be entitled to the benefit of the Scheme. The Scheme also deals with the mode of payment and duration etc.

7. The petitioners in all these cases applied for pension under the said Scheme and they produced along with their applications certificates from their co-prisoners. After scrutiny of the petitioners' applications and co-prisoner certificates produced by them, the pension has been sanctioned to them after 15th August, 1972. Subsequently by the impugned order, the first respondent has chosen to cancel the order granting pension and to direct the State Government to recover the pension amounts already paid to the petitioners. No reason for cancellation has been given in the impugned order and it merely says that in view of the State Government's recommendation the pension already granted to the petitioners will stand cancelled. The impugned order does not indicate as to what is the nature of the recommendation of the State Government and what are the reasons for cancelling the pension which had already been granted to the petitioners. However, in the counter-affidavit filed on behalf of the respondents, it has been stated that the co-prisoner certificates produced by the pensioners along with their applications are found to be false and that apart from those false certificate there is no material or records to indicate that the petitioners were in fact in jail for a period of six months as contemplated by the Scheme. Though the first respondent has set out the grounds for cancellation of the pension granted to the petitioners in the counter-affidavit the petitioners were not told as to what are the materials on which the respondents came to the conclusion that the co-prisoner certificates given by them were false or that the petitioners were not in jail for the required period of six months. In these circumstances, the petitioners complain that the impugned order is vitiated for the two reasons set out above.

8. There cannot be any doubt that the grant of pension under the said scheme is not statutory. Though the petitioners have alleged in the affidavits filed in support of their writ petitions that the grant of pension is statutory, in fact no statutory basis has been suggested and no statute has been referred to by the learned Counsel for the petitioners as forming the basis for the grant of pension in these cases. Therefore, the Court has necessarily to proceed on the basis that it is a non-statutory Scheme under which the petitioners have been granted pension. Learned Counsel for the respondents would say that the grant of pension is riot only non-statutory, but purely ex gratia and, therefore, the petitioners cannot claim a right to get the pension especially when the Scheme itself contemplates the payment of pension being provisional subject to verification of the fact whether the petitioners have in fact suffered imprisonment for the, relevant period. A perusal of the provisions of the Scheme indicates that the pension is sanctioned under the Scheme on scrutiny of the applications and the certificates produced by the petitioners. In these cases, the petitioners were granted pension only after scrutiny of the applications and co-prisoner certificates produced by them. Though the payment of pension is referred to as provisional, the Scheme does not set out the circumstances under which the pension could be cancelled. But the actual orders of sanction of pension by the President clearly retain the power of cancellation if it is found that the petitioners are not entitled to the grant of pension under the Scheme on a further enquiry and scrutiny of the records. Therefore, the actual orders granting pension to the petitioners and others under the said Scheme actually contain a power of revocation or cancellation.

9. The question then is whether the power of cancellation referred to in the orders sanctioning the pension has properly been invoked. It is in this connection, the contention advanced by the learned Counsel for the respondents that the order of cancellation, which has been impugned in these writ petitions, is an administrative order and, therefore, the first respondent need not follow the principles of natural justice, has to be considered.

10. Mr. Pattabhiraman learned Counsel for the petitioners contends that the distinction between an administrative order and a quasi-judicial order no longer exists with reference to the requirement or necessity to follow the principles of natural justice and that in fact with reference to the application of the principles of natural justice, the judicial opinion is uniform that there is practically no difference as on date between the administrative orders and quasi-judicial orders. Learned Counsel in support of his submission that even in respect of administrative orders, the principles of natural justice have to be followed if the order is likely to affect the interests of the person concerned, referred to the various decisions of the Supreme Court. After considering the observations of the Supreme Court in the said decisions, I am clearly of the view that even treating the impugned order as an administrative order, the principles of natural justice should have been followed. In Union of India v. Anglo-Afghan Agencies : [1968]2SCR366 dealing with the provisions of the Export Promotion Scheme for woollen textiles and woollen goods promulgated by Central Government, the Supreme Court, after holding the Scheme to be non-statutory, expressed its view that the Court can grant relief to the person affected even though the relief is based on a non-statutory Scheme. In A.K. Kraipak v. Union of India : [1970]1SCR457 the Supreme Court had specifically pointed out that even an administrative authority is bound to follow the rules of natural justice. In that case, the Supreme Court pointed out that the dividing line between an administrative order and a quasi-judicial order is quite thin and is being gradually obliterated and that the concept of rule of law would lose its vitality if the administrative authorities are not charged with the duty of discharging their functions in a fair and just manner. In Keshav Mills Limited v. Union : [1973]3SCR22 the Supreme Court observed that the concept of natural justice cannot be put into a straight jacket, that it is futile to look for definitions for standards of natural justice, that the only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. In D. F. O., South Kheri v. Ram Sanehi : AIR1973SC205 it was pointed out that an administrative order affecting the rights of a party has to be made in a manner consonant with the rules of natural justice. In that case, a contract awarded to a forest contractor by the Forest Officer was cancelled by a higher authority without any notice. When a complaint of violation of the principles of natural justice was made, the Supreme Court held that the cancellation order is in violation of the principles of natural justice. The Supreme Court referred to the arguments advanced on behalf of the State that the order of cancellation of the contract was an administrative order and, therefore, the principles of natural justice need not be followed. Rejecting that contention, the Supreme Court observed:

Granting that the order was administrative and not quasi-judicial, the order had still to be made in a manner consonant with the rules of natural justice when it affected the respondent's rights to property. This Court in the case of State of Orissa v. Dr. (Miss) Dinapani Dei : (1967)IILLJ266SC held in dealing with an administrative order that 'the rule that a party to whose prejudice the order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers'. The Divisional Forest Officer in the present case set aside the proceeding of a subordinate authority and passed an order which involved the respondent in considerable loss. The order involved civil consequences. Without considering whether the order of the Divisional Forest Officer was vitiated because of irrelevant considerations, the order must be set aside on the simple ground that it was passed contrary to the basic rules of natural justice.

In a recent decision in Mohinder Singh v. Chief Election Commissioner : [1978]2SCR272 the matter has been put beyond any doubt. In that case, it has been stated as follows:

The dichotomy between administrative, quasi judicial functions vis-a-vis the doctrine of natural justice is presumably obsolescent after A.K. Kraipak's case : [1970]1SCR457 India and Schmidt v. Secretary of State for Home Affairs (1969) 2 C.H. 149 : (1969) 1 All E.R. 904 in England.

The aim of the rules of natural justice is to secure justice or to put if negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.

Dealing with, the recent and fresh thinking on the subject of principles of natural justice, the Court observed that though natural justice involves the irritating inconvenience for men in authority, of having to hear both sides, since notice and opportunity are its very marrow and this principle is so integral to good Government, the onus is on him who urges exclusion to make out why. Their Lordships of the Supreme Court also referred to the following observation of Lord Denning in an earlier case:

Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking 'the Judge was biased'. Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'no-confidence' will be heard to say, 'that man had no chance to defend his stance'.

11. The above decisions of the Supreme Court clearly lay down that even administrative tribunals are bound to follow the principles of natural justice if the ultimate order to be passed by them is likely to affect the property and personal rights of the individuals. In this case, rightly or wrongly, a benefit has been conferred on the petitioners under the said Pension Scheme. On the basis of the materials produced by them, the petitioners were able to satisfy the authorities in the first instance that they are entitled to the benefit of the Scheme, and it is only after such satisfaction, they got the benefit of the scheme. Before the pension so granted to the petitioners under the Scheme is withdrawn, the petitioners are entitled to know as to what are the grounds on the basis of which the pension is sought to be cancelled and the benefit given to them earlier is being withdrawn, and they are also entitled to be put on notice of the materials on the basis of which the pension earlier granted to them is being withdrawn. They are also entitled to make their representations: In this case, admittedly, no notice has been given to toe petitioners prior to the impugned order of cancellation and the petitioners were not even made aware of the reasons why the pensions given to them are being withdrawn. Admittedly, the petitioners are in receipt of the benefit under the Scheme and before that benefit is withdrawn, they must be given notice of the intention to withdraw the same and they must also be given an opportunity to put forward objections before the proposed withdrawal of the benefit is given effect to. Since no show-cause notice has been issued to the petitioners and the petitioners are not aware of the basis on which the first respondent has proceeded to cancel the pension, the order of cancellation is violative of the principles of natural justice. Those rules clearly require that the petitioners should be given show-cause notice and their objections should be heard before a decision to cancel the pension already granted is taken by the first respondents. As a matter of fact, from fee records produced by the learned Senior Central Government Standing Counsel, it appears that since 1976 show-cause notices are uniformly given to persons whose pensions are sought to be withdrawn and in the said show-cause notices reasons for such cancellation have been set out in detail and the persons concerned are being given opportunity to make their representations. There is no reason as to why such show-cause notices have not been given to the petitioners in this case. I therefore, feel that the impugned order is defective, in that, the cancellation of the pension granted to the petitioners had been made without any prior notice to the petitioners and without giving any opportunity to them to put forward their objections for such withdrawal or cancellation of the pension.

12. Learned Counsel for the respondents submits that the pension granted to the petitioners being an ex gratia payment, it can be withdrawn at any time. But so long as the payment of pension is in pursuance of the provisions of a Scheme, the cancellation cannot be arbitrary and without reference to the provisions of the Scheme. Even if the pension granted to fee petitioners under the Scheme is taken to be ex gratia, still the first respondent is under duty to give notice to the petitioners and consider their representations before the benefit granted to them even it be ex gratia, is withdrawn. In fact in a case arising out of a refusal of a pension to a Canadian Police Officer obliged to resign, the Court held that the power to refuse pension could be validly exercised only after a fair hearing of the party adversely affected. Dealing with a case of ex gratia payment, Wade in his Administrative Law, Fourth Edition, at page 540 points out that even in cases of ex gratia payments, certiorari will lie to quash a decision of the Board refusing ex gratia payments if such a decision is not in accordance with the rules. It is thus clear that even if fee payment of pension is considered to be ex gratia, still the authority, before it stops ex gratia payments already sanctioned or recovers the amounts paid earlier as ex gratia, must give notice to the persons affected and consider their representations. In any view of the matter, the respondent cannot avoid following the basic principles of natural justice before the benefits conferred on the petitioners are withdrawn. The impugned orders in so far as they have been passed without following the principles of natural justice, should be held to be bad. The writ petitions are therefore, allowed and the impugned orders, so far as they relate to fee petitioners, are set aside.

13. The first respondent is, however, at liberty to issue show-cause notices to each of the petitioners and hear the petitioners' before taking decision to cancel the pension granted to them earlier and seeking recovery of the amounts already paid. No costs.


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