Ashish Kumar Shrivastava vs Western Coalfields Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(MP) 457

IN THE HIGH COURT OF MADHYA PRADESH
Krishn Kumar Lahoti, J.
Ashish Kumar Shrivastava
Vs.
Western Coalfields Ltd.
W.P. No. 4275 of 2006 (S)
Decided On: 22.06.2010

Headnote:Hindu Adoptions and Maintenance Act, 1956 -- Ss.5, 8 and 11(i) -- deceased died in harness -- petitioner claimed compassionate appointment on the basis of being her adopted son -- adoption deed not a registered document being only notarized -- executed in the presence of her late husband -- natural son of her husband from his late first wife alive at the time of execution -- moreover, consent of petitioners natural mother not obtained -- adoption deed not valid -- petitioner not entitled to seek compassionate appointment on the basis of such adoption-deed.
       Held: In this case, there is nothing on record or in the document Ex.P-5 that consent of the mother of the petitioner was obtained in the adoption of the petitioner by Smt. Shantibai and in absence of the consent of the mother, even in document Ex.P-5, such adoption was not valid.
       Adopted son of Shantibai shall be treated as an adopted son of her husband Sahablal and of Shantibai. When Sahablal is having a natural son namely Mahendra Kumar, then a second son cannot be adopted by his second wife. Apparently in the presence of natural son namely Mahendra Kumar, Shantibai was not entitled to adopt petitioner Ashish Kumar. Apart from this, the adoption deed of Shantibai Annexure P-5 specifically refers that the petitioner was adopted by her during the life time of her husband Sahablal. In the set of these facts, apparently the adoption of petitioner by Shantibai was not legal. (1980)1 SCC 63, (2008)13 SCC 119 and (1980) 4 SCC 462 followed. [Paras 10 & 14]
       fganw nRrd vkSj Hkj.k&iks"k.k vf/kfu;e] 1956 && /kkjk 5] 8 rFkk 11 ¼1½ && e`rdk dh drZO;LFk e`R;q && ;kph dk mldk nRrd iq= gksus ds vk/kkj ij vuqdaik fu;qfDr dk nkok && nRrd foys[k jftLVªhd`r nLrkost u gksdj uksVjh ek= && mlds fnoaxr ifr dh mifLFkfr esa fu"ikfnr && fu"iknu ds le; ifr dk mldh fnoaxr izFke iRuh ls izkd`frd iq= thfor && blds vfrfjDr] ;kph dh izkd`frd ek¡ dh lgefr izkIr ugha dh xbZ && nRrd foys[k oS/k ugha && ;kph bl nRrd foys[k ds vk/kkj ij vuqdaik fu;qfDr dh bZIlk djus dk gdnkj ughaA
       vfHkfu/kkZfjr % bl ekeys esa vfHkys[k ij ;k nLrkosth izn‘kZ ih&5 esa ,slk dqN Hkh ugha gS fd Jherh ‘kkafrckbZ }kjk ;kph dks nRrd ysus esa ;kph dh ek¡ dh lgefr izkIr dh xbZ Fkh rFkk nLrkost izn‘kZ ih&5 esa Hkh] ek¡ dh lgefr ds vHkko esa] ,slk nRrd xzg.k oS/k ugha gSA
       ‘kkafrckbZ dk nRrd iq= mlds ifr lkgcyky rFkk ‘kkafrckbZ dk nRrd iq= ekuk tk,xkA tc lkgcyky dk izkd`frd iq= uker% egsUnz dqekj gS] rc mldh f}rh; iRuh }kjk f}rh; iq= dks nRrd ugha fy;k tk ldrkA izdV :i ls izkd`frd iq= egsUnz dqekj dh mifLFkfr esa] ‘kkafrckbZ ;kph vk‘kh"k dqekj dks nRrd ysus ds fy, gdnkj ugha FkhA blds vfrfjDr] ‘kkafrckbZ dk nRrd foys[k mikca/k ih&5 esa fofufnZ"V :i ls fufnZ"V gS fd ;kph dks mlds ifr lkgcyky ds thoudky ds nkSjku nRrd fy;k x;k FkkA bu rF;ksa ds lewg dks n`f"V esa j[krs gq,] izdV :i ls ‘kkafrckbZ }kjk ;kph dk nRrd xzg.k oS/k ugha FkkA ¼1980½1 ,l lh lh 63] ¼2008½13 ,l lh lh 119 rFkk ¼1980½4 ,l lh lh 462 vuqlfjrA
       ¼iSjk 10 ,oa 14½

ORDER

Krishn Kumar Lahoti, J.

1. The Petitioner has sought following reliefs:

(i) Quash the impugned order dt. 19-12-2003 and 11-10-2005 Annexure P-1 and P-2 respectively.

(ii) Command the Respondents to issue appointment order to the Petitioner on compassionate ground.

(iii) And also be pleased to issue any other writ/order/direction deemed fit and proper in the facts and circumstances of the order.

2. Facts of the case are that the Petitioner moved an application for his compassionate appointment on the ground that his adoptive mother Smt. Shantibai died in harness, so he be appointed on compassionate ground. Petitioner's adoptive mother Smt. Shantibai executed deed of adoption dated 19-5-1994 Annexure P/5 in favour of Petitioner in which she acknowledged that her late husband Sahablal and she, both, had taken the Petitioner in adoption in the childhood of Petitioner in the presence of persons of Samaj. Petitioner was brought up by her and residing along with her. For confirmation of aforesaid, the adoption-deed was executed. It is pertinent to mention that the deed is notarized and is not a registered document.

3. Smt. Shantibai died on 1-1-1995. Thereafter, Petitioner moved an application for his compassionate appointment with the Respondents. The claim was turned down vide order dated 19-12-2003 against which Petitioner filed Writ Petition No. 286/2004(s) which was disposed of finally on 22-6-2005 an order of this Court, thus:

In this Petitioner has assailed an order (P, 1) passed by Respondent No. 1 by which application filed by Petitioner seeking compassionate appointment has been disallowed on the ground that he is not son of deceased employee Smt. Shantibai.

Perusal of the order (P, 1) indicates that finding has been recorded in para 6 of the order that Petitioner is not real son of the deceased Smt. Shantibai, however, claim of the Petitioner was that he was adopted by deceased which aspect was required to be gone into by the Respondents in objective manner and it was not the case of the Petitioner that he was real son of the deceased Smt. Shantibai, thus, case requires reconsideration on the question whether Petitioner was adopted son of the deceased employee. Let opportunity of hearing be granted to the Petitioner; necessary enquiry be made by the Respondents about the claim of the Petitioner; let fresh reasoned order be passed after due enquiry, within a period of 4 months.

Writ petition is allowed to the extent indicated above. Parties to bear their own costs as incurred.

4. Thereafter, Petitioner moved a fresh representation Annexure P/1, but it was dismissed vide Annexure P/2, on following grounds:

(i) That, the husband of Shantibai namely late Sahablal was working at Chandmata Colliery. He died on 15-10-1987. after his death, his wife Shantibai moved an application of her employment in which she disclosed Lakhanlal as her son and Laxmi Bai as her daughter. On the basis of said application, Shanti Bai was extended an employment by the Respondents.

(ii) The adoption-deed dated 19-5-1994, Annexure P/5, which was produced by the Petitioner, was found against the provisions of Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as "the Act") on the ground that Mahendra Kumar, the natural father of the Petitioner was alive who had given Petitioner in adoption to Smt. Shantibai. That the deed of adoption was not in accordance with Section 5 of the said Act and cannot be recognized legally. That as per Section 9 of the Act, if natural mother of the child is alive then her consent was also required. In the deed of adoption, there was no consent of natural mother.

(iii) That as per Section 11 of the Act, if son is adopted then at the time of the adoption, no son, son's son or son should be alive. As Per deed of adoption, late Sahablal was grand-father of the Petitioner and father of Petitioner or son of Sahablal namely Mahendra Kumar was alive, so during life-time of Mahendra Kumar, Petitioner could not be adopted. Apa

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2010 Supreme(MP) 457

IN THE HIGH COURT OF MADHYA PRADESHKrishn Kumar Lahoti, J.Ashish Kumar ShrivastavaVs.Western Coalfields Ltd.W.P. No. 4275 of 2006 (S)Decided On: 22.06.2010

Cases Referred (5)

IN THE HIGH COURT OF MADHYA PRADESH
Krishn Kumar Lahoti, J.
Ashish Kumar Shrivastava
Vs.
Western Coalfields Ltd.
W.P. No. 4275 of 2006 (S)
Decided On: 22.06.2010