# Ajit Singh v. Merind Limited and

- **Citation:** (2009) 1 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-02-16
- **Case number:** Criminal Misc. Habeas Corpus Writ Petition No. 56549 of 2008
- **Bench:** R.K. Rastogi, A.K. Roopanwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajit-singh-v-merind-limited-and-41352
- **Pages:** 3

## Headnote

Constitution of India-Art. 226-Habeas
Corpus Petition-alleging her age as 19
years-according
to
her
sweet
will
residing with a man of his choiceillegally
detained
in
Rajkiya
Pashchatwarti
Dekh
Rekh
Sansthanmedically
examined
by
C.M.O.-given
expert opinion disclosing the age 19
years-in school leaving certificate two
different
self
contradictory
dates
mentioned-held-C.M.O. certificate more
reliable-apparently
the
petitioner
appears major. Free to go anywhere to
her choice.

Held: Para 6 & 8

It is to be seen that according to the
medical certificate issued by the C.M.O.,
Gorakhpur, the age of the petitioner-
Khusboo
was
about
19
years
on
23.7.2008. The medical report reveals
that all the epiphysis of elbow joints and
knee joints were fused. In case of wrist,
lower ends of ulna and radius were also
fused. It may also be mentioned that
Khusboo was produced by the police
before
the
C.M.O.
for
her
medical
examination and there is no reason to
1 All] Khusboo V. State of U.P. and others

243
doubt
its
veracity
regarding
ascertainment of the age done by the
C.M.O., Gorakhpur, on the basis of
fusions of the epiphysis.

We are of the view that when the
documentary evidence of date of birth of
the
petitioner
Khusboo
is
self
contradictory, the medical ascertainment
of age done by the C.M.O., Gorakhpur, on
the basis of x-ray report is more reliable,
and according to that ascertainment of
age, the petitioner is apparently major
and so she cannot be kept in Rajkiya
Paschatyavarti
Dekhrekh
Sanrakshan,
Varanasi, against her wishes.

## Text

242 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

the compensation has to be worked out in
terms of Section 15 (3) of the 1936 Act.

35. In view of the aforesaid
categorical statement of law enunciated
by Hon'ble Apex Court, there can be no
scope for doubt to hold that the
respondent no.2 who was admittedly
drawing Salary Rs.13,825/- per month is
excluded from the operation of provisions
of the 1936 Act by virtue of the
provisions of Section 1(6) of the said Act,
irrespective of fact whether he is
workman or not by virtue of Section 6(2)
of the 1976 Act, which continues to apply
to him and irrespective of fact as to
whether he is excluded from Industrial
Dispute Act by Section 6(7)(b) of 1976
Act or not, therefore, he is not entitled to
invoke the provisions of Section 15 (2)
and Section 15(3) of the 1936 Act. As
such the claims set up by him under
Section 15 (2) and Section 15 (3) of the
1936 Act in my considered opinion is not
maintainable
before
the
prescribed
authority under the Act 1936. Therefore,
the
Assistant
Labour
Commissioner,
Bijnor has no jurisdiction to entertain and
proceed with PWA Case No.18 of 2005
Ajit Singh Vs. Merind Limited and
another pending before him. The entire
proceeding is without jurisdiction and is
liable to be quashed. Accordingly, the
same is hereby quashed. In the result, the
writ petition succeeds and is allowed.

36. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2009

BEFORE
THE HON'BLE R.K. RASTOGI, J.
THE HON'BLE A.K. ROOPANWAL, J.

Criminal Misc. Habeas Corpus Writ
Petition No. 56549 of 2008

Khusboo

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Kamal Kishor Mishra

Counsel for the Respondents:
Sri M.C. Joshi
Sri Sudhir Mehrotra

Constitution of India-Art. 226-Habeas
Corpus Petition-alleging her age as 19
years-according
to
her
sweet
will
residing with a man of his choiceillegally
detained
in
Rajkiya
Pashchatwarti
Dekh
Rekh
Sansthanmedically
examined
by
C.M.O.-given
expert opinion disclosing the age 19
years-in school leaving certificate two
different
self
contradictory
dates
mentioned-held-C.M.O. certificate more
reliable-apparently
the
petitioner
appears major. Free to go anywhere to
her choice.

Held: Para 6 & 8

It is to be seen that according to the
medical certificate issued by the C.M.O.,
Gorakhpur, the age of the petitioner-
Khusboo
was
about
19
years
on
23.7.2008. The medical report reveals
that all the epiphysis of elbow joints and
knee joints were fused. In case of wrist,
lower ends of ulna and radius were also
fused. It may also be mentioned that
Khusboo was produced by the police
before
the
C.M.O.
for
her
medical
examination and there is no reason to
1 All] Khusboo V. State of U.P. and others

243
doubt
its
veracity
regarding
ascertainment of the age done by the
C.M.O., Gorakhpur, on the basis of
fusions of the epiphysis.

We are of the view that when the
documentary evidence of date of birth of
the
petitioner
Khusboo
is
self
contradictory, the medical ascertainment
of age done by the C.M.O., Gorakhpur, on
the basis of x-ray report is more reliable,
and according to that ascertainment of
age, the petitioner is apparently major
and so she cannot be kept in Rajkiya
Paschatyavarti
Dekhrekh
Sanrakshan,
Varanasi, against her wishes.

(Delivered by Hon'ble R. K. Rastogi, J.)

1. This Habeas Corpus Writ
Petition has been filed by the petitioner,
Khusboo, for quashing the order dated
12.10.2008 passed by the S.D.M.,
Sadar, Gorakhpur, in Misc. Case No. 3
of 2008 and for issuing a direction to
the respondents to produce her corpus
before this Court and for other suitable
directions.

2. The petitioner's case is that she
is major and her date of birth is
5.2.1989. She has filed a photocopy of
the School Leaving Certificate issued by
the
Headmaster,
Primary
School,
Khorabar, Gorakhpur. She has alleged
that she performed marriage with Ram
Dayal out of her own choice but her
parents were not satisfied with this
marriage. She also moved an application
before the S.D.M., Sadar, Gorakhpur, on
12.2.2008 asserting that she wanted to
go with her husband. It was registered
as Misc. Case No. 3 of 2008. The
petitioner
Khushboo
was
produced
before the C.M.O., Gorakhpur, by the
police and the C.M.O. after obtaining xray report ascertained her age to be
about 19 years. A photocopy of the
medical
certificate
issued
by
the
C.M.O., Gorakhpur, has been annexed
as Annexure no. 3 to the petition. Even
then the S.D.M., Sadar, Gorakhpur, did
not permit her to go to her nuptial home
and passed order for keeping her at the
Rajkiya
Paschatyavarti
Dekhrekh
Sanrakshan, Varanasi, (respondent no.
2). She alleged that since she is major,
she has the right to live with a man of
her choice and so she filed this petition
challenging the above order. She has
also alleged that her parents are not
ready to keep her with them.

3. The State filed a counter
affidavit of Devendra Prasad Tiwari,
Sub Inspector of Police, Police Station
Khorabar, District Gorakhpur, in which
he stated that on the basis of the
information given by Rajendra Prasad,
respondent no. 3, Case Crime No. 1498
of 2008, u/s 376, 506 I.P.C. was
registered at Police Station Khorabar,
District Gorakhpur, on 19.7.2008, and
in this case Ram Dayal, so called
husband of the petitioner, is an accused.
The case was investigated and after
investigation the charge sheet has
already been submitted against Ram
Dayal. It was also alleged that Khusboo
is still minor. Her date of birth
according
to
her
School
Leaving
Certificate (Annexure no. CA1) is
5.2.1995. It was on the basis of the
above School Leaving Certificate in
which the date of birth of Khusboo was
mentioned as 5.2.1995, that the S.D.M.,
Sadar, Gorakhpur, held that she was still
a minor and so she should not be
permitted to reside according to her
wishes and he passed an order that she
should be kept at Rajkiya Paschatyavarti
Dekhrekh Sanrakshan, Varanasi.
244 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

4. A rejoinder affidavit has been
filed by Ram Dayal disputing the
allegation of minority of Khusboo
mentioned in the counter affidavit.

5. We have heard learned counsel
for the petitioner as well as learned
AGA for the State and perused the
record.

6. It is to be seen that according to
the medical certificate issued by the
C.M.O., Gorakhpur, the age of the
petitioner- Khusboo was about 19 years
on
23.7.2008. The medical report
reveals that all the epiphysis of elbow
joints and knee joints were fused. In
case of wrist, lower ends of ulna and
radius were also fused. It may also be
mentioned that Khusboo was produced
by the police before the C.M.O. for her
medical examination and there is no
reason to doubt its veracity regarding
ascertainment of the age done by the
C.M.O., Gorakhpur, on the basis of
fusions of the epiphysis.

7. As regards the dates of births
mentioned
in
the
School
Leaving
Certificates, the petitioner has filed a
photocopy of the certificate issued by
the Headmaster of the School in which
she had studied and in which her date of
birth was mentioned as 5.2.1989, but in
another certificate issued by the same
school her date of birth has been
mentioned
as
5.2.1995.
Both
the
certificates are self contradictory and
there is contradiction regarding her age
in the school record.

8. We are of the view that when
the documentary evidence of date of
birth of the petitioner Khusboo is self
contradictory, the medical ascertainment
of age done by the C.M.O., Gorakhpur,
on the basis of x-ray report is more
reliable,
and
according
to
that
ascertainment of age, the petitioner is
apparently major and so she cannot be
kept
in
Rajkiya
Paschatyavarti
Dekhrekh Sanrakshan, Varanasi, against
her wishes.

9. This Habeas Corpus Writ
Petition is, therefore, allowed, the order
of the S.D.M., Sadar, Gorakhpur dated
12.10.2008 (Annexure no. 4 to the
petition) is quashed and the petitioner
Khusboo is ordered to be released from
Rajkiya
Paschatyavarti
Dekhrekh
Sanrakshan, Varanasi.

10. Since the petitioner Khusboo
has been produced in this court by CP
1386 Smt. Maya Devi and CP 261 Sri
Anil Kumar Mishra, Constables, Police
Lines, Varanasi, she is permitted to be
released in the court and she is at liberty
to go anywhere she likes. Petition
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2009

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.66968 of 2008

Kumari Sonika

...Petitioner

Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Rajeev Sisodia
Sri Atul Sisodia

Counsel for the Respondents:
S.C.