Bombay High Court
Shaikh Jamir Sayed Saifoddin vs The Chief Officer, The Municipal ... on 15 October, 2015
Bench: R.V. Ghuge
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kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7729 OF 2013
Shaikh Jamir Sayed Saifoddin,
Age : 34 years, Occ : Service,
R/o Tattu Pura, Old Jalna,
Jalna, Taluka and District Jalna.
...PETITIONER
-VERSUS-
The Chief Officer,
The Municipal Council,
Jalna, Taluka & District Jalna.
...RESPONDENT
.............
Mrs.A.N.Ansari, Advocate for the Petitioner.
Shri Amit S. Deshpande, Advocate for the Respondent.
............
CORAM : RAVINDRA V. GHUGE, J.
Reserved on 08th October, 2015.
Pronounced on 15th October, 2015.
JUDGMENT:
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner challenges the judgment and order dated
31.07.2012 delivered by the Labour Court thereby, dismissing Complaint
(ULP) No.13/2011 and the judgment dated 24.06.2013 delivered by the
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Industrial Court thereby, rejecting Revision (ULP) No.52/2012.
3 One Shri Sayed Saifoddin Yusufoddin was working as a
Fireman in the Fire Brigade Division of the Respondent. Since he was
suffering from Tuberculosis, he stood medically retired on account of
being unfit due to health reasons from 19.10.1999. An application dated
01.12.1999 was filed by the Petitioner along with a notarized adoption
deed dated 20.05.1999, thereby projecting that the Petitioner was
adopted by Sayed Saifoddin.
4 The Petitioner was appointed on compassionate ground on
25.02.2011 subject to the approval from the Directorate of Municipal
Council, Mumbai. As the approval was not received and the appointment
of the Petitioner was found to be against the provisions of law, his
appointment came to be cancelled and he stood terminated by order
dated 27.09.2011, which is about 07 months after his appointment.
5 The Petitioner challenged his termination before the Labour
Court by filing Complaint (ULP) No.13/2011 under Section 28(1) of the
MRTU & PULP Act, 1971. Item 1(a, b, d, f & g) of Schedule IV of the said
Act were invoked by the Petitioner.
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6 The Respondent filed it's Written Statement and contended
that the adoption of the Petitioner was not in accordance with law and
was not in tune with clause 3 of the Government Resolution dated
26.10.1994.
7 Considering the rival contentions and the oral and
documentary evidence, the Labour Court dismissed the complaint by the
impugned judgment dated 31.07.2012.
8 The Petitioner preferred Revision (ULP) No.52/2012 which
was dismissed by the Industrial Court vide judgment dated 24.06.2013.
9 Mrs.Ansari, learned Advocate for the Petitioner, submits that
the Government Resolution dated 26.10.1994 enables the appointment of
an adopted son or daughter on compassionate ground. The Petitioner was
adopted by Sayed Saifoddin on the basis of a notarized adoption deed.
Subsequently, a registered adoption deed dated 07.06.2001 was filed with
the Respondent and the Petitioner was, therefore, appointed on
compassionate ground on 25.02.2011. The termination of the Petitioner is
on account of false reasons.
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10 She further submits that the stand taken by the Respondent is
unsustainable. The Petitioner was legally adopted by Sayed Saifoddin and
hence, the Respondent could not have terminated the service of the
Petitioner. She submits that the Labour Court as well as the Industrial
Court have committed a patent error in concluding that the Petitioner
does not deserve to be continued in employment.
She has relied upon the judgment of the Apex Court in the
matter of Shabnam Hashmi v/s Union of India and others, AIR 2014 SCW
1329 and the judgment of this Court in the matter of Sundar Shaekhar
v/s Shamshad Abdul Wahid Supariwala, 2014 (1) Mh.L.J. 738.
12 Shri Amit Deshpande, learned Advocate has appeared on
behalf of the Respondent. On 03.08.2015, it was intimated to the Court
that he had quit the panel of Advocates of the Respondent on 02.08.2015.
It is now submitted that the Respondent/ Council has insisted that Shri
Deshpande should conduct the matter and hence, he has appeared on
behalf of the Respondent/ Council.
13 Shri Deshpande draws my attention to the Written Statement
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filed by the Respondent. It is categorically stated that the Respondent has
not retrenched or terminated the services of the Petitioner. The
Directorate of Municipal Council, Maharashtra State, has not granted it's
assent to the appointment of the Petitioner on compassionate ground. The
Respondent noticed that clause 3 of the Government Resolution dated
26.10.1994 was not complied with by Sayed Saifoddin and hence, the
appointment of the Petitioner was cancelled.
He further submits that clause 3 of the Government
Resolution mandates that the adoption should be strictly in accordance
with the law applicable. The adoption should be legal and the document
indicating the adoption should be executed prior to the employee retiring
from service on medical grounds. In the instant case, Sayed Saifoddin
cannot adopt the Petitioner as Section 347 of the Mahomedan Law does
not permit adoption and does not recognize adoption.
15 He further points out that a notarized adoption deed has no
sanctity in the eyes of law. The Petitioner had submitted a notarized
document dated 20.05.1999 along with his application dated 01.12.1999.
Without scrutinizing the papers properly, the Respondent had issued the
appointment order to the Petitioner under a bona-fide belief that his
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application would be accepted by the competent authorities.
16 He further submits that Sayed Saifoddin retired from
employment on 19.10.1999 and the Petitioner submitted the registered
adoption deed dated 07.06.2001 which is after the retirement of Sayed
Saifoddin.
17 He relies upon the judgment of the Patna High Court in the
matter of Mohammad Amin v/s State of Bihar, 2012 (7) Laws (Pat) 54 :
2012 TLPAT 540. He submits that when the adoption in the Muslim
religion is impermissible and not recognized by law, the Petitioner could
not have been continued in employment on the basis of Sayed Saifoddin
having adopted him. In the light of these circumstances, the competent
authority refused to accord approval and hence, the appointment of the
Petitioner has to be cancelled.
18 I have considered the submissions of the learned Advocates
as have been recorded herein above.
19 Section 347 of the Mahomedan Law reads as under:-
"347. Adoption not recognized. The Mahomedan Law does
not recognize adoption as a mode of filiation."
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20 There is no dispute that the Mahomedan Law does not
recognize adoption as a mode of filiation. The condition of being a child
of a specified parent is not recognized by the Mahomedan Law in the
form of an adoption. In the case of Muhammad Allahdad Khan V/s
Muhammad Ismail Khan, (1888) ILR 10 All 290, the Full Bench of the
Allahabad High Court held that, in the Muslim religion, the doctrine of
acknowledging paternity is available, but adoption is not recognised.
21 The Government Resolution dated 26.10.1994 mandated that
a legal adoption deed should be placed on record before the incumbent
employee retires from employment on medical ground. The Petitioner had
filed a notarized adoption deed dated 20.05.1999 which was hardly five
months prior to the retirement of Sayed Saifoddin on 19.10.1999. He was
suffering from Tuberculosis and was quite unwell, is not disputed. It,
therefore, appears that the notarized document was prepared just five
months prior to the retirement of Sayed Saifoddin for facilitating a
compassionate appointment to the Petitioner.
22 It is not disputed that the registered adoption deed dated
07.06.2001 is subsequent to the retirement of Sayed Saifoddin. It is also
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not in dispute that the Mahomedan Law does not recognize an adoption.
23 The ratio laid down by the Apex Court in the Shabnam
Hashmi case (supra) is that the right to adopt and be adopted cannot be
declared as a fundamental right covered under Article 21 of the
Constitution of India.
24 This Court in the matter of Sundar Shaekhar (supra) dealt
with the issue of adoption under the Mahomedan Law and concluded that
when the adopted person was not claiming property of the deceased on
the basis of oral adoption as a son, the temporary restraining order
against the person portraying himself as an adopted son of the deceased is
not justified and deserves to be set aside. It was also concluded that any
order even if passed by the Court, must be executable and enforceable. In
the Mahomedan Law the adopted son is not recognized unless proved in
view of certain customs, if any.
25 In the instant case, there is no contention by the Petitioner
about any prevailing custom and if so, whether, such custom has been
followed while adopting the Petitioner.
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26 This Court in Sundar Shaekhar case (supra) has observed in
paragraph 7 as under:-
"7. The Patna High Court, in Md. Amin Vs. State of
Bihar, LAWS (PAT)-2012-7-54, has recorded as
under:-
"In the principles of Mahomedan Law by M.
Hidayatullah (N.M.Tripathi Pvt.Ltd.) 1990 under
Section 347, it is specifically mentioned that the
Mahomedan law does not recognize adoption as a
mode of filiation. Tahir Mahmood in his book, "the
muslim Law of India, 3rd Edition page 137 "has
mentioned". The various kinds of sons other than sons
by birth are are wholly unknown to muslim Law. So,
a person can be the child of the woman who has given
birth to that person and of the man who has or is
believed or legally recognized to have begotten that
person and none else".
In view of the above, the claim of the petitioner
to be appointed on compassionate ground has rightly
been rejected by the impugned order as he would not
have claimed such appointment on the plea that he
was the adopted son of the deceased constable late
Md. Kasim as the Mahomedan Law does not recognize
adoption as a mode of sonship and under the muslim
Law the adoption does not create a parent and child
relationship."
27 A somewhat identical situation arose before the Patna High
Court in the case of Mohammad Amin (supra). It would be apposite to
reproduce paragraphs 3 and 4 of the said judgment as under:-
"3. Two counter affidavits have been filed; one on behalf
of respondents no.2 to 4 and the other on behalf of
respondent no.5, the Commandant, B.M.P. - 9,
Jamalpur, Munger. The consistent stand in the
counter affidavit filed by the officials respondent is
that there is no provision for adoption in the Muslim
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Personal Law and, therefore, the petitioner's claim for
compassionate appointment was rejected. In the
background of the controversy as above mentioned,
the only question which requires consideration is as
to whether the petitioner can be treated as a son of
the deceased employee, not being his natural son
under the Muslim Personal Law. In other words,
whether the Muslim Personal Law recognizes filial
relationship in any form other than a child by birth.
This is not in dispute that the petitioner has
not claimed sonship on the basis of being the natural
son of the petitioner. In the writ petition itself it has
been pleaded that he is the adopted son of the
deceased employee Late Md. Kasim and he was taken
into adoption by Md. Kasim and Bibi Taimun as they
were not capable to bear a child. It is not the pleading
of the petitioner that there is existed any custom in
his family to which he or the deceased employee
belonged, recognizing adoption as mode of sonship.
In the principles of Mahomedan Law by M.
Hidayatullah (N.M.Tripathi Pvt. Ltd.) 1990 under
Section 347, it is specifically mentioned that the
Mahomedan law does not recognize adoption as a
mode of filiation. Tahir Mahmood in his book, "the
Muslim Law of India, 3rd Edition page 137 "has
mentioned "The various kinds of sons other than
sons by birth‟ are wholly unknown to Muslim Law.
So, a person can be the child of the woman who has
given birth to that person and of the man who has or
is believed or legally recognized to have begotten that
person and of none else."
4. In view of the above, the claim of the petitioner to
be appointed on compassionate ground has rightly
been rejected by the impugned order as he would
not have claimed such appointment on the plea that
he was the adopted son of the deceased constable
Late Md. Kasim as the Mahomedan Law does not
recognize adoption as a mode of sonship and under
the Muslim Law the adoption does not create a
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parent and child relationship."
28 It is, therefore, evident that an adopted son of a person
professing Muslim religion cannot be recognized under Section 347 of the
Mahomedan Law. The case of the Petitioner is, therefore, squarely covered
by clause 3 of the Government Resolution dated 26.10.1994. On this
count, the cancellation of the Petitioner's appointment on compassionate
ground, therefore, cannot be faulted.
29 Insofar as the contention of the Petitioner before the Labour
Court is concerned, I am of the view that Section 25G of the Industrial
Disputes Act, 1947 is not attracted in the peculiar facts of this case, much
less Section 25N since the cancellation of the appointment order of the
Petitioner would not amount to retrenchment.
30 In order to invoke Section 25N, the Petitioner should have worked
for 240 days in the continuous and uninterrupted service of the
Respondent, inasmuch as, the Respondent will have to be covered by the
definition of Industrial Establishment under Section 25L so as to attract
Section 25N of the Industrial Disputes Act, 1947. Similarly, the
Respondent will have to fall within the definition of a manufacturing
process under Section 2(k) and a factory under Section 2(m) of the
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Factories Act. Moreover, the number of workers engaged at its
establishment should be 100 or more.
31 In the light of the above, I do not find that the Labour Court
or the Industrial Court have committed any error in dismissing the
complaint and the revision petition filed by the Petitioner. The impugned
judgments are neither perverse nor erroneous. This Petition being devoid
of merit is, therefore, dismissed.
32 Rule is discharged.
33 No costs.
(RAVINDRA V. GHUGE, J.)
