Friday, 28 October 2016

Whether adopted son of muslim person can be granted service on compassionate ground?

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. 
 He further points out that a notarized adoption deed has no
sanctity in the eyes of law. 
 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. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
         WRIT PETITION NO.7729 OF 2013
Shaikh Jamir Sayed Saifoddin,

­V
Chief Officer,
The Municipal Council,
Jalna, 
CORAM :  RAVINDRA V. GHUGE, J.
     

Pronounced on 15th October, 2015.
Citation: 2016 (5) ALLMR310


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

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. 

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. 

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. 
11 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

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.
14 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 bona­fide  belief  that his

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.”
:
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

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. 

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)­2012­7­54,   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

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

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

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.)

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