Supreme Court of India

UNION OF INDIAversusM.S. MOHAMMED RAWTHER

Citation: 2007 INSC 836
Decided: 16 August 2007
Disposal: Disposed off
Bench: A K MATHURMARKANDEY KATJU

Holding

The Supreme Court held that the court must not substitute its own investigation for that of the executive and therefore set aside the Division Bench order, remitting the matter to the Union for fresh consideration under the SSS Pension Scheme.

Summary

The petitioner, Union of India, appealed against a Kerala High Court Division Bench order that directed it to grant Swatantrata Samman Sainik (SSS) pension to the deceased M.S. Mohammed Rawther with effect from 9 September 1989. The Division Bench had reversed a Single Judge’s direction to remand the matter to the Union for fresh consideration after quashing earlier rejections of the pension claim. The Supreme Court held that the Single Judge’s approach was correct because the grant of pension required factual investigation, which is within the executive’s domain, and the court cannot assume that role. Citing the principle of judicial restraint and the Wednesbury standard of review, the Court set aside the Division Bench order and remitted the matter to the Union to decide afresh within six months, with any arrears payable to the legal heirs if entitlement is established. The appeal was disposed of, and the Union was instructed to pass an appropriate order.

Issues considered

Whether a High Court Division Bench can direct the Union of India to grant SSS pension without conducting its own factual investigation.
Whether the court may substitute its own investigation for that of the executive in matters involving pension grants under the SSS Pension Scheme.
Scope of judicial review of executive decisions under the Wednesbury principle in the context of pension entitlement.

Subjects

Swatantrata Samman Sainik Pensionjudicial reviewWednesbury principleexecutive discretionseparation of powersjudicial restraintpension scheme

Judgment

                                 UNION OF INDIA                                   A
                                       v.
                           M.S. MOHAMMED RA WTHER

                                 AUGUST 16, 2007

                 [A.K. MATHUR AND MARKANDEY KA TJU, JJ.]                          B

          Swatantarata Sainik Samman Pension Scheme, I 980:

            Claim for pension-In writ petition Single Judge of High Court directing
     Union of India to consider and pass appropriate order on petitioner's C
     application-Division Bench in appeal directing Union of India to grant
     pension to petitioner w.ef 9.9.1989-Held: The Course adopted by Single
     Judge was correct as the matter required necessary investigation of facts-
     lt is the duty of the State and the Union of India to consider all material on
     the subject and whether it is a case worth granting pension under the D
     Scheme-Court cannot encroach into executive or legislative domain and
     assume the role of investigation offacts-It has only judicial power to review
     the executive order on Wednesbury principles, but cannot arrogate to itself
     power ofthe executive-Court must exercise judicial restraint in such matters-
     Order of Division Bench ofHigh Court is set aside-Judicial review-Judicial
     restraint.                                                                     E
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7336 of2002.

          From the final Judgment and order dated 29.06.2001 of the High Court
     ofKerala at Emakulam in Writ Appeal No. 2488 of2001.
                                                                                  F
           Paramjit Singh Patwalia, Amanpreet Singh Rahi, V. Mohana and Sushma
     Suri for the Appellant.

          Sanjay Parikh, A.N. Singh and Jitin Sahni for the Respondent.

          The Order of the Court was delivered by                                 G
                                        ORDER
-~
           Heard learned counsel for the parties.

                                         109                                      H
    110                    SUPREME COURT REPORTS                     (2007) 9 S.C.R. ·

A         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
B   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.

C         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 petitioner's 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
D   Union of India rejecting the petitioner's 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.
E
           We have heard learned counsel for the parties and perused the record.
    We are of the opinion that the course adopted by the learned s:ngle 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 fighter's pension
F   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
G   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 Unicn of India. The court must
    exercise judicial restraint in such matters. There is broad separation of powe!"s
H   under the Constitution, and one organ of the State should not ordinarily
                   U.0.1. v. M.S. MOHAMMED RAWTHER                         111
                                                                                  '
encroach into the domain of another. Montesquieu's theory broadly applies A
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.                                                            B
      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.                                     c
RP.                                                      Appeal disposed of.




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