Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for respondent no.1 and Sri R.K. Kushwaha, learned counsel appearing for respondent nos. 2 and 3.
The petitioner is the daughter of late Smt. Hasmat Jahan, who was working as Head Master at Senior Basic School, Mailani in District Lakhimpur Kheri and she died on 13.9.1995 during service period. The State Government issued Government order dated 19.7.1986 providing appointment under Dying-in-Harness Rules to the employees, who were working in Basic Shiksha Parishad Schools and died during service period. In compliance of the aforementioned Government order the District Basic Shiksha Adhikari, Lakhimpur Kheri advertised the post of Assistant Teacher for appointment to dependents of employees under Dying-in-Harness Rules and the petitioner had applied against the said advertisement.
Petitioner moved an application to District Magistrate, Lakhimpur Kheri on 13.10.1986 for succession certificate and on the report of Lekhpal and Tehsildar dated 15.10.1986, that the petitioner is the only successor and legal heir of the deceased Hasmat Jahan, succession certificate was issued by ADM Lakhimpur Kheri.
After completion of formalities, appointment letter dated 13.7.1987 as Assistant Teacher was issued to the petitioner. In pursuance thereof petitioner joined at Junior Basic Schools (Girls) Kheri Town, Lakhimpur Kheri and her salary was paid for August, 1987. The petitioner filed Writ Petition No. 4430 of 1988 for payment of salary in which opposite party no. 3 had given oral assurance for payment of salary, in case the writ petition is withdrawn by the petitioner.
After withdrawal of the writ petition, the salary of the petitioner was not paid. Aggrieved by the conduct of the respondent, the petitioner filed Writ Petition No. 1577(SS) of 1993 and interim order dated 18.2.1993 was passed. In spite of the interim order, the salary was not released. The petitioner filed Contempt Petition No.2094 of 1993 in which the opposite party no. 3, Accounts Officer, Basic Shiksha Adhikari, Lakhimpur Kheri, District Kheri was summoned for framing of charges on 15.10.2004. However, prior to that date the appointment of the petitioner was cancelled by the impugned order dated 14.10.2004 passed by the respondent no.2, District Basic Shiksha Adhikari, Lakhimpur Kheri, District Kheri. The impugned order was passed on the ground that the succession certificate dated 22.10.1986, on inquiry, was found that it was not issued by the office of ADM (Finance) and hence the document was a forged document.
The impugned order further stated that Suit No. 295, under Section 34 of the Land Revenue Act, the Tehsildar, has held that Haneef Khan, maternal uncle of the petitioner is legal heir and accordingly it was directed his name be entered in place of Hasmat Jahan in the revenue records. The Basic Shiksha Adhikari concluded that petitioner is not the daughter of Hasmat Jahan, but imposter as Hasmat Jahan died unmarried.
The submission of the learned counsel for the petitioner is that an inquiry was conducted by the Sahayak Balika Vidyalaya Nirikshika namely Smt. Pushpa Lata Srivastava and she had submitted her report before the opposite party no. 2, Zila Basic Shiksha Adhikari, Lakhimpur Kheri, District Kheri on 9.5.1988 in which it was admitted that the succession certificate dated 22.10.1986 was issued by the ADM Kheri in his own hand writing, which was based on the report of Tehsildar dated 15.10.1986. Once such a report was there in her favour the respondent no.2 should have examined the ADM Kheri as well as the Tehsildar. The impugned order has been passed merely upon a letter stating therein that no such certificate has been issued from the office of the ADM Finance.
The second argument of learned counsel for the petitioner is that the proceeding under Section 34 of the Land Revenue Act is a summary proceeding for making entries in the revenue record on the basis of possession. The proceedings under Section 34 of the Land Revenue Act cannot decide any title or right. No finding has been recorded by the Tehsildar and he only directed to make entries in the revenue record in favour of Mohd. Haneef Khan, the maternal uncle of the petitioner, that would not dis-entitle her from being legal heir of Hasmat Jahan and Mumtaz Hussain Farooqui.
The learned counsel appearing for the respondent has submitted, on the basis of the counter affidavit, that Hasmat Jahan, the mother of the petitioner was working as Head Master and she was unmarried and died on 13.9.1985 and after her death Mohd. Haneef Khan and Rasul Khan instituted a succession Suit No. 65 of 1988 in which the court below vide order dated 24.9.2006 passed an order in favour of Mohd. Aziz Khan son of Late Mohd. Haneef Khan. The order dated 24.9.2006 entitled Mohd.Aziz Khan to obtain the amount, in the State Bank account, of Hasmat Jahan and it has further been contended that Hasmat Jahan was unmarried. Mumtaz Hussain Farooqui's first wife was Asgari Begum and Asgari Begum had five children and Smt. Manuna Khatun was the second wife of Mumtaz Hussain Farooqui from whom they had two children. There was no third wife, hence petitioner is not the daughter of Hasmat Jahan.
The rival submissions fall for consideration.
The anchor-sheet of the impugned order is based on the fact that the succession certificate was not issued from the office of ADM (Finance). The Zila Basic Shiksha Adhikari has not disputed that earlier an inquiry was conducted by Sahayak Balika Vidyalaya Nirikshika and her report dated 19.5.1988 was in favour of the petitioner, mere denial that document has not been issued from the office of ADM (Finance) would not mean that the petitioner is not the legal heir/daughter of Hasmat Jahan. The documents filed by the petitioner was not taken into consideration as is evident from the fact that way back in the year 1966 a complaint was filed by the petitioner's mother with the Deputy Inspector of Schools, Lakhimpur Kheri against her husband Sri Mumtaz Hussain Farooqui as he tried to threaten her and also insisted on forcefully taking away her daughter namely the petitioner. The Deputy Inspector of School, Kheri vide letter dated 19.1.1966 addressed to the father of the petitioner, Mumtaz Hussain Farooqui had warned him.
The suit filed under Section 34 of the Land Revenue Act does not confer any power upon the Tehsildar to decide the title of a person. It is summary proceeding for making entries in the revenue record on the basis of possession, the suit was filed by none other than the real brother of the petitioner's mother. An attempt was made to usurp the property of the petitioner by setting up a plea that she was not the daughter of Hasmat Jahan.
After the death of her mother, the succession suit i.e. Suit No. 65 of 1988 was decided by an order dated 6.4.1988. The petitioner was a party of the said suit. The court below did not decide the said suit on merits, it was decided on the basis of a compromise entered into between the parties outside the court. The order does not anywhere indicate that the petitioner was not the daughter of Hasmat Jahan and Mumtaz Hussain Farooqui. The order merely states that the suit is being decided on the terms of agreement entered by the parties. Mohd. Haneef Khan had filed both the suits for the immovable and movable property of Hasmat Jahan. In order to succeed he had to question the appointment of the petitioner as she was appointed under the Dying-in-Harness Rules. The conduct and approach of Basic Shiksha Adhikari is also not aboveboard. He aided and abetted the perpetrators in their scheme to non suit the petitioner. The documents that clinch the issue of petitioners' paternity was deliberately ignored.
The petitioner has filed a supplementary affidavit along with educational documents of the petitioner, she appeared in the High School Examination in the year 1977 in which her death of birth is recorded as 1.1.1962 and her father's name recorded in High School Certificate is Mumtaz Hussain Farooqui. This document is relevant document. The marriage of Hasmat Jahan and Mumtaz Hussain Farooqui was established by the petitioner by filing the extract of the register of the Kazi. At serial No.78, name of Hasmat Jahan has been metioned that she is the daughter of Jinat Rasul Khan (Pathan) and the name of husband Mumtaz Hussain Farooqui son of Kazi Azaz Hussain (Shekh) has been mentioned and they were married on 26.3.1961 at 9 a.m. and the Meher amount was Rs.2,000/-. The 'talaknama' is dated 22.12.1967, it clearly states that Mumtaz Hussain Farooqui has divorced his wife Hasmat Jahan. The 'talaknama' has been recorded by one Jafar Ali and also bears the signature of two witnesses. The 'talaknama' is also signed by Mumtaz Hussain Farooqui in English.
Petitioner in her reply dated 21.09.2004 to show cause notice, had categorically stated that the succession certificate was issued by the office of the ADM and she further stated that she is relative of Sujat Ali Khan with whom she has old enmity and lodged a first information report through his friend Advocate Raji Ahmad on 10.7.1993 against her as well as his father Mumtaz Hussain Farooqui under Sections 420/471/467/468 IPC stating that the she is not the daughter of Hasmat Jahan and Mumtaz Hussain Farooqui and the succession certificate dated 22.10.1986 is forged and manufactured document. The C.J.M., Lakhimpur Kheri vide order dated 6.4.2000 acquitted her as well as his father as the allegations were not found to be proved by the prosecution. A certified copy was also filed.
The petitioner had also filed the extract of the Khatauni prepared after the proceedings under Section 34 of the Land Revenue Act. The Khatauni is clearly recorded in the name of the petitioner's mother, 'Smt. Hasmat Jahan' she has been referred to her 'Begum'. It was categorically stated that the proceedings did not decide the title or succession. The petitioner had further filed the copy of the affidavits filed by Mohd. Haneef Khan before the Court of C.J.M., Lakhimpur Kheri and also the copy of the statement of Mohd. Haneef Khan dated 10.7.1998 wherein he had accepted the petitioner as his 'Bhanji'. The 'talaknama' dated 22.12.1967 was also produced by the petitioner before Zila Basic Shiksha Adhikari. The Zila Basic Shiksha Adhikari committed error which is apparent on the face of the impugned order. The Basic Shiksha Adhikari ignored the High School Certificate of the petitioner which records the name of the father. The 'talaknama' is between petitioners' mother Hasmat Jahan and Mumtaz Hussain Farooqui. The letter dated 19.1.1966 issued by the Basic Shiksha Adhikari to Mumtaz Hussain Farooqui on the complaint of Hasmat Jahan. The other mistake committed by the Basic Shiksha Adhikari is that he relied on orders passed in proceedings under Section 34 of Land Revenue Act and the order passed in succession suit. Proceedings under Section 34 Land Revenue Act does not confer power to decide title or succession. No suit was filed under Section 229B of U.P.Z.A.&L.R. Act by the petitioner or any other party. The succession suit was not decided on merits but on the basis of compromise. The findings recorded by Basic Shiksha Adhikari is not only erroneous but also perse perverse. The documents that clearly establish the paternity of the petitioner is the correspondence of the office of Basic Shiksha Adhikari with Mumtaz Hussain Farooqui, on the complaint of Hasmat Jahan. The 'talaknama' recording the divorce between Hasmat Jahan and Mumtaz Hussain Farooqui and finally the High School Certificate recording the name of Mumtaz Hussain Farooqui as her father. The entire matter can also be examined from another angle. Mumtaz Hussain Farooqui had three wives including the petitioners mother. None of petitioners' seven siblings or the father has questioned the paternity of the petitioner born from Mumtaz Hussain Farooqui and Hasmat Jahan. The Basic Shiksha Adhikari proceeded upon some information received in his office and on a complaint by street side journalist alleged to be friend of Mohd. Haneef Khan, who were not competent, to raise such a serious issue of paternity of a person. It is writ large from the record that attempt was made to usurp the property of Hasmat Jahan by questioning her paternity.
Learned counsel for the respondent has stated that the petitioner is out of service since 2004 and in case the writ petition is being allowed the petitioner should not be granted back wages as she has not performed any duties during the said period. The question of payment of back wages depends upon the facts of the case. In case, the termination order is found to be wholly illegal and malicious exercise, in order to deliberately deprive the petitioner of her services and to facilitate the perpetrators who wanted to usurp the property of her mother, the basis and substance of termination is not misconduct but victimization. In such a situation, the petitioner will be entitled to all consequential benefits including back wages.
The law on grant of back wages on reinstatement, as applicable to industrial jurisprudence, has been settled by the Hon'ble Supreme Court in various judgments.
In Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others (2013) 10 SCC 324, the Court held, in case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. Where the Court reaches a conclusion that the inquiry was held in respect of frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the punishment is a result of such scheme or intention. In such cases, the principles relating to back wages will be the same as those applied in the cases of illegal termination. (Refer J.K. Synthetics Ltd. vs. K.P. Agrawal (2007) 2 SCC 433, Assistant Engineer Rajasthan Dev Corp. and another versus Gitam Singh, [2013(136) FLR 908], Shiv Nandan Mahto vs. State of Bihar (2013) 11 SCC 622).
The impugned order dated 14.10.2004 passed by respondent no. 2 is set aside. The petitioner shall be reinstated by respondent no. 2 Zila Basic Shiksha Adhikari, Lakhimpur Khiri in the Prathmic Vidyalaya forthwith and her arrears of salary shall be paid within three months from the date of service of the order.
Writ petition is allowed with all consequential benefits.
Costs assessed as Rs.50,000/-to be paid by the Zila Basic Shiksha Adhikari, Lakhimpur Kheri, District Kheri respondent no. 2.
Order Date :- 12.3.2014 Ravi