Union of India Vs. M.S. Mohammed Rawther [2007] Insc 829 (16 August 2007)
A.K.
Mathur & Markandey Katju
O R D
E R Heard learned counsel for the parties.
This
appeal is directed against the order of the Division Bench of the High Court of
Kerala whereby the Division Bench of the Kerala High Court has directed the
Union of India to grant Swatentrata Samman Sainik Pension (for short `SSS
Pension) to the petitioner (respondent herein) as claimed by him in his
Original Petition with effect from 09.09.1989 and the amount should be paid
within a period of two months.
Aggrieved
against this order, the present appeal has been filed by the Union of India.
We
have heard learned counsel for the parties and perused the record.
The
Division Bench was hearing an appeal against the order passed by the learned
Single Judge whereby the learned Single Judge had given a direction to the
Union of India to consider and pass an appropriate order on the
petitioners application for grant of SSS Pension to the writ petitioner.
The
learned Single Judge quashed Exh.P-6 and Exh.P-8 (the orders passed by the
Union of India rejecting the petitioners prayer for pension) and remitted
the matter back to the Union of India to consider the matter afresh after
providing a necessary opportunity to the respondent for considering his prayer
for grant of the SSS pension. Aggrieved by this order, the matter was taken up
by the appellant before the Division Bench on which the Division Bench passed
the impugned order. Hence the present appeal by the Union of India.
We
have heard learned counsel for the parties and perused the record.
We are
of the opinion that the course adopted by the learned Single Judge was the
correct course and the matter should have been remitted back to the Union of
India to decide the question of grant of freedom fighters pension afresh.
It required necessary investigation of facts as to whether the incumbent was
entitled to SSS pension or not. The courts cannot encroach into the executive
or legislative domain, and cannot assume the role of investigation of facts. It
is the duty of the State and the Union of India to have considered all the
material on the subject and consider whether it is a case worth granting
pension as per the SSS Pension Scheme, 1980. The court has only judicial power
to review that executive order on Wednesbury principles, but it cannot arrogate
to itself the power of the executive. If the order passed by the Union of India
is not justifiable on Wednesbury principles the court can only set it aside and
remit the matter back to the executive for a fresh decision, but the court
cannot assume the power of the Union of India. The court must exercise judicial
restraint in such matters.
There
is broad separation of powers under the Constitution, and one organ of the
State should not ordinarily encroach into the domain of another.
Montesquieus
theory broadly applies in India too.
Accordingly,
we set aside the order of the Division Bench and remit the matter back to the
Union of India. The Union of India shall consider and pass an appropriate order
in accordance with law preferably within a period of six months from today.
We
have been informed that the respondent herein has already expired. In case it
is found that he was entitled to pension then all his arrears should be worked
out and shall be given to his legal heirs.
The
appeal is disposed of accordingly.
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