# Smt. Farzana v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 636
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-03
- **Case number:** Writ -A No. 11016 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-farzana-v-state-of-u-p-ors-51076
- **Pages:** 11

## Headnote

A. Civil Law - Constitution of India,1950Article 226-The petitioner sought family
pension after the death of her husband, a
technician who retired in the year 2018
and
passed
away
in
2022-Despite
repeated applications, the Chief Treasury
officer denied her claim, citing divorce
allegation made by the deceased husband
in a complaint to the District Magistrate
and claims of the petitioner's remarriage-
10 All. Smt. Farzana Vs. State of U.P. & Ors.
637
Held,
witness
testimonies
including
alleged second husband and his wife
revealed that claims were based on
mistaken
identity-the
investigation
confirmed that there were two women
named
farzana
both
having
former
husbands named shakir, but the petitioner
was not remarried-direction issued to
Chief Treasury Officer, District Magistrate
and Executive Engineer to ensure payment
of petitioner's family pension, including
arrears within one month.(Para 1 to 23)

The writ petition is allowed. (E-6)

## Text

636 INDIAN LAW REPORTS ALLAHABAD SERIES
the case from Lucknow to Bareilly when
she is likely to be transferred repetitively in
future also and the cases are pending at
Lucknow where the applicant's permanent
residence is situated and the minor child of
the parties, for whose custody a case has
been filed at Lucknow, is also residing and
studying at Lucknow.

11. The learned counsel for the
opposite party has relied upon a decision of
the Hon'ble Supreme Court in the case of
Delma Lubna Coelho v. Edmond Clint
Fernandes, 2023 SCC OnLine SC 440,
wherein the Hon'ble Supreme Court has
observed that : -

"Number
of
Transfer
Petitions are filed in matrimonial
cases, primarily by the wives
seeking transfer of the matrimonial
proceedings
initiated
by
the
husband. This Court normally has
been accepting the prayer made
while showing leniency towards
ladies.
In Anindita
Das v. Srijit
Das, (2006) 9 SCC 197, this Court
observed that may be this leniency
was being misused by women.
Hence, each and every case has to
be considered on its own merits."

12. From the aforesaid facts, it
appears that the present place of posting of
the applicant - wife does not provide a
good ground for transfer of the case
relating to custody of a minor child who is
residing and studying at Lucknow, from
Lucknow to Bareilly, more particularly
when the applicant's permanent residence
is also at Lucknow and she is in a
transferable service and she gets transferred
very frequently - almost every two to three
years. The divorce suit should also be
decided by the same Court where custody
suit is pending and, therefore, it will not be
in the interest of justice to transfer the
divorce case as well.

13. Therefore, there appears to be
no good ground for transfer of (i) Case No.
353 of 2023, Rahul Srivastava & Anr. v.
Smt. Shubhi Saxena, under Section 7 read
with Section 25 of the Guardian and Wards
Act and (ii) Case No. 4412 of 2022, under
Section 13 of Hindu Marriage Act, 1955
from the Court of Principal Judge, Family
Court, Lucknow to the Court of Principal
Judge, Family Court, Bareilly.

14. Both the applications lack
merit and the same are dismissed.
----------
(2024) 10 ILRA 636
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ -A No. 11016 of 2023

Smt. Farzana ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Indra Kumar Mishra

Counsel for the Respondents:
C.S.C., Shivam Yadav

A. Civil Law - Constitution of India,1950Article 226-The petitioner sought family
pension after the death of her husband, a
technician who retired in the year 2018
and
passed
away
in
2022-Despite
repeated applications, the Chief Treasury
officer denied her claim, citing divorce
allegation made by the deceased husband
in a complaint to the District Magistrate
and claims of the petitioner's remarriage-
10 All. Smt. Farzana Vs. State of U.P. & Ors.
637
Held,
witness
testimonies
including
alleged second husband and his wife
revealed that claims were based on
mistaken
identity-the
investigation
confirmed that there were two women
named
farzana
both
having
former
husbands named shakir, but the petitioner
was not remarried-direction issued to
Chief Treasury Officer, District Magistrate
and Executive Engineer to ensure payment
of petitioner's family pension, including
arrears within one month.(Para 1 to 23)

The writ petition is allowed. (E-6)

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Indra Kumar Mishra,
learned Counsel for the petitioner, Mr.
Sharad
Chandra
Upadhyay,
learned
Standing Counsel appearing on behalf of
respondent nos. 1, 2 and 3 and Mr. Shivam
Yadav, learned Counsel appearing for
respondent no. 4.

2. The petitioner has instituted this
writ petition, praying that a mandamus be
issued to the respondents, commanding
them to pay her family pension, admissible
under the rules and due to her on account of
the services of her deceased husband, the
late Shakir Husain.

3. The petitioner's husband retired
on 31.01.2018 from the post of a Technician
Grade-II/ Lineman in the Establishment of
the
Executive
Engineer,
Electricity
Distribution Division-I, Bareilly. He was in
receipt of his retirement pension until his
demise on June the 7th, 2022. He had opened
an account with the Punjab National Bank,
Civil Lines Branch, Bareilly, bearing Account
No. 0043000100429856, where the petitioner
was his nominee. In support of the claim, the
petitioner has annexed a xerox copy of the
Passbook relating to the Bank Account last
mentioned. There is on record a xerox copy
of a memo dated 25.02.2019, carrying two
attested photographs of the petitioner and her
husband, submitted to the office of the
Executive Engineer for the purpose of
sanction and payment of pension and family
pension. The memo dated 25.02.2019 is
signed by the late Shakir Husain, who
appeared in person while submitting the
memo before the Executive Engineer, as the
petitioner claims. The petitioner's husband
had made an application for pension and
family pension on 22.05.2018, and in that
application, shown the petitioner's name as
his wife. This application was made to the
Executive Engineer, Electricity Distribution
Division-I, Bareilly. A xerox copy of the said
application is also on record. After her
husband's demise on 07.06.2022, armed with
his death certificate dated 05.07.2022 issued
by the Nagar Nigam, Bareilly, the petitioner
moved an application for the release of
family pension in her favour, opening an
Account in her name with the Indian Bank,
Civil Lines Branch, Bareilly on 13.10.2022.
The petitioner made further applications for
grant of family pension on 16.12.2022,
19.05.2023 and 09.06.2023, addressed to
various officers of the State, such as the Chief
Secretary, the Chief Treasury Officer, Bareilly
and
the
District
Magistrate,
Bareilly,
requesting that the family pension due to her,
on account of her husband's services, be
released in her favour. All of these led to no
result, as it seems.

4. Aggrieved by the inaction on the
respondents'
part
in
releasing
the
petitioner's
due
family
pension,
the
petitioner has instituted the present writ
petition.

5. On the 26th of July, 2023, an
application was made in the writ petition,
seeking to implead the Executive Engineer,
Electricity
Distribution
Division-I,
638 INDIAN LAW REPORTS ALLAHABAD SERIES
Madhyanchal Vidyut Vitaran Nigam Ltd.,
Bareilly, as a party respondent to the writ
petition. This application was allowed and
the petition adjourned to 07.08.2023 with a
direction that the name of Mr. Shivam
Yadav, learned Counsel for the Electricity
Distribution Corporation be printed on the
respondents' side. On 07.08.2023, acting
upon what Mr. Shivam Yadav, learned
Counsel appearing for the Electricity
Distribution
Division-I,
Madhyanchal
Vidyut Vitaran Nigam Ltd., Bareilly, stated
at the Bar, this Court passed the following
order:

"Upon
instructions
received,
Mr.
Shivam
Yadav,
Advocate appearing on behalf of
the Executive Engineer, Electricity
Distribution
Khand
Ist,
Madhyanchal
Electricity
Distribution
Nigam
Limited,
Bareilly states that the petitioner's
papers for sanction and release of
family
pension
have
been
forwarded to the Chief Treasury
Officer, Bareilly and that the
sanction
and
release
of
the
petitioner's pension is awaiting
action by the Chief Treasury
Officer, Bareilly.
Let the Chief Treasury
Officer, Bareilly file his affidavit
within a week indicating why the
petitioner's family pension have not
been sanctioned and released so
far.
Lay this petition as fresh on
17.08.2023.

Let
this
order
be
communicated
to
the
Chief
Treasury Officer, Bareilly by the
Registrar (Compliance) within 24
hours."
6. On 17.08.2023, a counter
affidavit was filed on behalf of the Chief
Treasury Officer, Bareilly, wherein a very
startling stand was taken in paragraph
Nos.12, 15 and 16, which read:

"12. That in reply to the
contents of paragraph no.9 of the
writ petition, it is submitted that
Smt. Farzana has made application
on 19-5-2023 thereafter on 9-62023 for release of family pension
after death of her husband Shakir
Husain. In respect of said letters it
is submitted here that Late Shakir
Husain during his life time during
'Janta Darshan' by his application
dated
8-9-2021
being
IGRS
No.2015021008558 dated
24-92021 informed that Talak(divorce)
is already done with Smt. Farzana,
neither he has any concerned with
her nor they are living together and
through said letter requested that
after his death, family pension may
not be given to Smt. Farzana. The
true/photo copy of request letter
dated 6-9- 2021 made by Late
Shakir Husan on 'Janta Darshan'
before District Magistrate, Bareilly
is being filed herewith and marked
as ANNEXURE NO. CA-1 to this
affidavit.
15. That in reply to the
contents of paragraph no.12 of the
writ petition it is submitted that
taking
into
consideration
the
request letter dated 8-9-2021 made
by Late Shakir Husain that Talak
(divorce) is already done with Smt.
Farzana,
neither
he
has
any
concerned with her nor they are
living together and through said
letter requested that after his death,
family pension may not be given to
10 All. Smt. Farzana Vs. State of U.P. & Ors.
639
Smt.
Farzana,
therefore
in
pursuance of said letter, answering
respondent vide its letter No.399
dated 24-6-2023 made information
to the District Magistrate, Bareilly,
stated all facts to him, also asked
for suitable direction for payment
of family pension to the petitioner,
thereafter on instruction of District
Magistrate,
the
answering
respondent written letter on 5-72023 to the Tehsildar, Tehsil Sadar,
Bareilly to made enquiry and
informed that Talak(divorce) is
done with Smt. Farzana(petitioner)
with her husband Late Shakir
Husain or not, so that further action
may be taken. The true/photo
copies
of
letters
to
District
Magistrate dated 24-6-2023 and
letter to Tehsildar, Tehsil Sadar,
Bareilly dated 5-7-2023 are being
filed herewith collectively for kind
perusal of this Hon'ble Court and
marked as ANNEXURE NO.CA-2
to this affidavit.
16. That the contents of
paragraph no.13 of the writ petition
are not admitted as stated, hence
denied. In reply thereof it is
submitted
that
till
today
the
answering respondent is awaiting
for
reply
from
the
District
Magistrate, Bareilly as well as the
Tehsildar, Tehsil Dadar, Bareilly in
pursuance of letter dated 5-7-2023
and as when answering respondent
will get response he will made
necessary effort to release the
family pension in favour of the
petitioner."

7. Noticing the aforesaid stand by
the Chief Treasury Officer, Bareilly and the
rejoinder affidavit filed on behalf of the
petitioner, denying the fact of a divorce
between the petitioner and her husband or
that he had submitted to the District
Magistrate any application until his demise
on 07.06.2022 of the kind mentioned in the
Chief Treasury Officer's affidavit, this
Court proceeded to admit the writ petition
to hearing on 28.08.2023 and passed the
following order:

"Parties have exchanged
affidavits.
Admit.
Heard Mr. I. K. Mishra,
learned counsel for the petitioner,
Mr. Shivam Yadav, learned counsel
appearing on behalf of respondent
no.4 and Mr. Yashwant Singh,
learned
Standing
Counsel
appearing on behalf of respondent
nos.1, 2 and 3.
Let Mr. Shivam Yadav,
Advocate produce the service book
relating to the late Shakir Hussain,
Ex-Technician,
Grade-II,
who
retired on 31.01.2018 from the
office of the Executive Engineer,
Electricity Distribution Khand- Ist,
Madhyanchal
Electricity
Distribution Nigam Ltd., Katzu
Marg, Bareilly.
Mr.
Shivam
Yadav,
Advocate will also produce the
original of the pension nomination
form, a copy of which is annexed at
page no.24 of the paper book.
An affidavit shall also be
filed by day after tomorrow by the
Executive
Engineer
indicating
whether any decree of divorce
passed by a Court of competent
jurisdiction or a duly authenticated
talaknama was produced before the
Executive Engineer by the late
Shakir Hussain.
640 INDIAN LAW REPORTS ALLAHABAD SERIES
List for further hearing day
after tomorrow i.e. 30.08.2023 at
2:00 p.m.
Let
this
order
be
communicated to the Executive
Engineer, Electricity Distribution
Khand-Ist,
Madhyanchal
Electricity Distribution Nigam Ltd.,
Katzu
Marg,
Bareilly,
District
Bareilly
by
the
Registrar
(Compliance) today."

8. In compliance with the order
dated
28.08.2023,
an
affidavit
of
compliance was filed by the Executive
Engineer, Electricity Distribution DivisionI, Bareilly on 25.09.2023, where it is
averred in paragraph No.3 that after the
petitioner's
husband's
retirement
on
31.01.2018, he appeared along with his
wife before the Executive Engineer and a
Pension Payment Order (for short, 'PPO')
was drawn on 21.02.2019, that is within
one month of the deceased employee's
retirement. The PPO carries photographs of
the deceased employee along with the
petitioner. In the PPO dated 21.02.2019, the
petitioner's nomination has been registered
as the employee's wife. The service-book is
said, in paragraph No.5 of the affidavit of
compliance, to have been left blank as
regards nomination or the employee's
marital status. It is next averred in
paragraph
No.6
of
the
affidavit
of
compliance that after the retired employee's
demise, the petitioner's claim for release of
family pension was forwarded by the
Executive Engineer to the Zonal Office,
Bareilly, and from that office, it has been
forwarded to the Chief Treasury Officer for
further action. The Executive Engineer has
also said that he had endorsed the
petitioner's claim through his letters dated
17.01.2023, 24.02.2023 and 11.08.2023,
regarding her entitlement to family pension
as the deceased's widow. In paragraph
Nos.9, 10 and 11 of the affidavit, it is
averred:

"9. That it is clearly stated
herein that no Decree of Divorce or
Talaknama or any other document
has been produced by the deceased
employee or by the petitioner. In
the absence of any such document,
the respondent corporation has
forwarded
the
claim
of
the
petitioner for requisite payments in
light of the Rules.
10. That in light of the
aforesaid submission, the deponent
categorically submits that all dues
to the petitioner's husband till his
death were duly paid and so far as
family pension is concerned the
appropriate steps endorsing the
claim of the petitioner have been
duly forwarded.
11. That this Hon'ble Court
had directed the original pension
nomination form to be produced
before this Hon'ble Court, which is
appended on page No. 24 of the
Writ Petition, it is submitted that
such form has been forwarded to
the Zonal Office of the Corporation
i.e. to Lucknow and therefore, at
present it is not available with the
deponent, however, the deponent
undertakes that in case this Hon'ble
Court further requires the original
form to be produced before this
Hon'ble Court, the deponent would
fetch the form from the General
Manager (Finance/Nodal Officer)
MVVNL,
Lucknow,
U.P.
and
produce the same before the
Hon'ble Court, however, it is
submitted that the nomination form
which is appended with the writ
10 All. Smt. Farzana Vs. State of U.P. & Ors.
641
petition is genuine, as the same is
also available with the answering
respondent in his records. The copy
of the clear nomination form along
with the attested photographs of the
employee
and
his
wife
i.e.,
petitioner and attested passbook is
annexed herewith and marked as
Annexure
No.
CA-4
to
this
affidavit."

9. Despite the aforesaid affidavit
of compliance filed by the employers, when
the matter next came on 08.12.2023, the
Chief Treasury Officer would not relent in
his stand that the petitioner had been
divorced by the deceased employee merely
because an application, purporting to be
signed by the petitioner's late husband,
when alive, had been made to the Collector.
The Chief Treasury Officer took a stand
that despite receipt of the PPO from the
petitioner's
husband's
employers,
he
directed an inquiry to be made into the
allegations regarding the divorce between
the petitioner and her husband. Nothing
was
produced
before
the
Court
on
18.12.2023 of the kind of a decree of
divorce or a talaqnama. There was just no
evidence about any divorce, either with the
Chief Treasury Officer or the petitioner's
husband's employers, except that the Chief
Treasury Officer was convinced that there
was a divorce. When the Court indicated its
inclination on 08.12.2023 to summon the
Chief Treasury Officer, Bareilly in order to
elicit from him the basis for his belief that
the petitioner and her husband had
divorced, Mr. Girijesh Kumar Tripathi, the
learned Additional Chief Standing Counsel
sought telephonic instructions. He informed
the Court that the Tehsildar had reported
that the petitioner, after her husband's
death, had remarried. These developments
led this Court to issue a commission to the
Principal Judge, Family Court, Bareilly to
hold an inquiry, after taking necessary
evidence, determining the fact if the
petitioner had remarried, in order to curtail
controversy. On 08.12.2023, this Court
passed the following order:

"Prima facie, the stand
taken by the Chief Treasury Officer,
Bareilly
in
the
order
dated
05.07.2023 appears to be very
untenable. Despite the Pension
Payment Order being forwarded by
the Corporation, the petitioner's
husband's employers, the Chief
Treasury
Officer,
Bareilly
has
directed an inquiry to be made into
allegations to the effect that the
petitioner's husband when alive
had said that he had divorced his
wife, the petitioner.
Unless,
there
is
some
evidence about a divorce, like a
decree of Court or other valid
instrument effecting divorce, a
divorce between spouses is not to
be readily inferred; certainly not
because
the
husband
has
proclaimed about it in a complaint.
There has to be evidence in aliunde
about it. No such evidence has been
referred to in the order dated
05.07.2023. So far as this order is
concerned, it does not at all stand
in the way of the petitioner's right
to receive family pension.
Upon the Court noticing
this order, annexed to the counter
affidavit filed by the Chief Treasury
Officer, District-Bareilly, the Court
was minded to summon him and
take appropriate action but Mr.
Girijesh Kumar Tripathi, learned
Additional Chief Standing Counsel
came to his rescue and sought
642 INDIAN LAW REPORTS ALLAHABAD SERIES
telephonic
instructions.
He
informed
the
Court
that
the
Tehsildar has reported that the
petitioner,
after
her
husband's
demise, has remarried. Now, this is
a matter which does not figure in
the Chief Treasury Officer's order,
and,
may
be,
is
a
later
development.
In
order
to
curtail
controversy and swiftly determine
the rights of the petitioner, who, if
not
remarried,
as
the
Chief
Treasury Officer has communicated
by instructions to the learned
Additional Chief standing Counsel,
would suffer irreparable injury by
reason of non-payment of her
family pension.
A commission is issued to
the Principal Judge, Family Court,
Bareilly to hold an inquiry taking
necessary evidence to determine if
there is prima facie evidence that
the petitioner has remarried; or the
said fact is utterly incorrect.
The finding of the Principal
Judge, Family Court recorded on
commission will of course be a
piece of evidence and not a
decision of any kind. It will be
taken into consideration by this
Court for the limited purpose of
judging the petitioner's entitlement
to receive family pension.
For
the
purpose
of
enabling
the
Principal
Judge,
Family Court, Bareilly to decide
the issue, the petitioner, the Chief
Treasury Officer, Bareilly and the
Tehsildar, who submitted a report
to the Chief Treasury Officer,
Bareilly that the petitioner has
remarried, shall all appear before
the learned Principal Judge on
12.12.2023 at 11.00 am in his
Court. All parties will produce all
the relevant evidence in their
possession regarding the fact of the
petitioner's
remarriage,
or,
otherwise. Oral testimony of these
parties, particularly, the petitioner
and the Tehsildar, who made
inquiries or any other relevant
persons, may also be recorded by
the learned Principal Judge.
The
Principal
Judge,
Family Court, Bareilly will submit
a report to this Court on or before
16.12.2023.
Put up this matter for
further hearing on 16.12.2023 at
2.00 p.m.
Let
this
order
be
communicated to the petitioner by
her learned Counsel, who is
present in Court today.
The
Registrar
(Compliance)
is
directed
to
communicate this order to the
concerned Tehsildar through the
Chief Treasury Officer, Bareilly, the
Principal Judge, Family Court,
Bareilly and the Chief Treasury
Officer, Bareilly today."

10. The learned Principal Judge,
Family Court, Bareilly proceeded to
execute
this
Court's
commission,
examining on oath witnesses and other
evidence to determine if the petitioner is
remarried or the said fact is incorrect. On
12.12.2023,
Shailendra
Kumar,
Chief
Treasury Officer, Ram Nayan Singh,
Tehsildar, Jai Prakash, Lekhpal and the
petitioner, Farzana appeared before the
Principal
Judge,
Family
Court.
The
witnesses were examined on oath and
cross-examined by the other side. The
Lekhpal is recorded to have stated that he
10 All. Smt. Farzana Vs. State of U.P. & Ors.
643
would produce Dilshad and his mother as
witnesses. Dilshad is said to be the man
whom Farzana was believed by the Chief
Treasury Officer to have remarried after her
husband's demise. On 13.12.2023, Dilshad,
Farzana, wife of Dilshad, daughter Qadir,
Rizwan and Bundan were examined. They
were cross-examined by the other side. The
Tehsildar and the Chief Treasury Officer
made a statement that they would not
produce any further witnesses.

11. In his deposition, the Chief
Treasury Officer, Shailendra Kumar stood
by his statement that the deceased, Shakir
Husain had remarried a woman, called
Farzana and had made an application to the
District Magistrate on 08.09.2021, speaking
about divorcing his wife and also saying
that after his demise, his former wife be not
paid any pension. However, he could not
produce
any
evidence
about
Shakir
Husain's
divorce
or
the
petitioner's
remarriage to Dilshad. In his crossexamination done on behalf of the
petitioner, he admitted that there was no
document evidencing a divorce between
parties. The complaint made to the District
Magistrate did not carry a photograph of
parties nor an affidavit in support. He also
admitted that there is no nikahnama on
record, evidencing the petitioner's remarriage to Dilshad.

12. There is evidence of the
Tehsildar, Ram Nayan Singh and the
Lekhpal, Jai Prakash also on record, but
that would not resolve the controversy until
the testimony of Dilshad son of Iqbal
believed by the Lekhpal and the Tehsildar
to be the man, who had married Farzana, is
considered, as well as the testimony of the
woman, Farzana wife of Dilshad, daughter
of Qadir, different from the petitioner,
Farzana. Dilshad son of Iqbal testified
before the Family Judge that he was living
in Haziapura for the past 8-9 years. He was
married to Farzana, daughter of Qadir, a
resident of Wakarganj, near City Railway
Station. They were married about 15-16
years ago. Upon looking at the petitioner,
Farzana in the chambers of the Judge,
Dilshad said that she was not his wife and
they were never married. Dilshad also
stated that his wife's former husband was
also named Shakir. He too lived in
Haziapur. His wife's former husband,
Shakir had died about 4 years ago. He had
married Farzana during the lifetime of her
former husband, Shakir, after he had
divorced her. His wife's former husband,
Shakir
was
a
Chowkidar
with
the
Ashrayasthal in the Establishment of the
Nagar Nigam, Bareilly. He filed on record a
Aadhaar Card of his wife, called Farzana.
The Court at this stage has recorded a
remark that in the Aadhaar Card, the name
of her former husband recorded is Shakir,
but her photograph on the Aadhaar Card
does not resemble the petitioner. The
witness said in his short cross-examination
that the petitioner was not his wife.

13. Now, Dilshad's wife Farzana
was examined. Upon being confronted with
the petitioner, Farzana and asked if she
knew the petitioner, she stated that she had
never met her. This witness Farzana (not
the petitioner) said that her former husband
was also named Shakir son of Munne and,
he too, was a resident of Haziapur. She had
married Dilshad during his lifetime. Shakir,
her husband had divorced this person
Farzana orally. She had two sons and a
daughter, begotten of her former husband,
Shakir. The petitioner, Farzana was never
married to her husband in the past or at
present. In her cross-examination, she said
that her husband Shakir was not employed
in the Electricity Department, but the Nagar
644 INDIAN LAW REPORTS ALLAHABAD SERIES
Nigam, Bareilly. He had died about 3 years
ago. She did not know if he received any
pension from the Nigam.

14. The other two witnesses, who
were examined, to wit, Rizwan son of the
late Nazakat Husain, did come up with a
story that the petitioner, he had heard, was
living separately from her husband for the
past 3 years and was seen moving about
with one Bundan. Bundan was his
acquaintance. Bundan would visit the
petitioner, Farzana and her husband. The
petitioner, Farzana and Dilshad were never
married. Dilshad's wife, Farzana is another
woman, this witness testified. The witness
said that he had no knowledge about
Shakir's complaint (made to the District
Magistrate). The witness said that he had
never seen Farzana being divorced by
Shakir nor did he see her being married to
Bundan. He had heard a rumour in the
locality that Farzana and Bundan had done
a nikah. In his cross-examination, the
witness said that he did not know the man,
who had told her about the petitioner,
Farzana and Bundan tying the knot. The
witness also said that Bundan had never
told her that he had married Farzana.
Rather, Bundan denied having married
Farzana.

15. Bundan, when examined as a
witness, stood steadfast by the fact that he
had never married Farzana either during the
lifetime of her husband Shakir or after his
demise. The petitioner, Farzana was his
wife's cousin, and, therefore, they would
frequent her home. His wife's name was
Parveen. The witness did not know if the
petitioner was divorced. He testified to the
fact that Shakir at the time of his demise
was looked after by the petitioner and the
parties' children. He did not know about
any bickerings between the petitioner and
her husband. The petitioner, Farzana had
two sons and a daughter. One son was 21
years of age, the other son 8 years and the
daughter 20 years old.

16. On a wholesome examination
of the testimony on record threadbare, the
learned Principal Judge, Family Court,
Bareilly returned the following findings in
his commission report dated 14.12.2023:

"उपरोि तथ्यों एवं पररदस्थदतयो में दवददत
है दक प्रस्तुत प्रकरण में दो फरजाना नाम की मदहलायें
हैं, दजसमें से एक अपीलाथी फरजाना है, दजसका पदत
र्ादकर हुसैन था तथा दूसरी फरजाना वह है दजसके पूवश
पदत का भी नाम र्ादकर हुसैन था तथा उसने उनके
जीवनकाल में ही ददलर्ाद से र्ादी कर दलया। इस
प्रकार दो मदहलायें फरजाना नाम की हैं तथा उनके
पदतयों के नाम भी र्ादकर हुसैन है लेदकन अपीलाथी
का पदत र्ादकर हुसैन दबजली दवभाग में काम करता था
तथा फरजाना का पदत र्ादकर हुसैन नगर दनगमे में
चौकीदार था। उि फरजाना ने अपने पदत के जीवनकाल
में ही ददलर्ाद से र्ादी कर दलया है। इस प्रकार यह
स्पष्ट है दक अपीलाथी फरजाना ने ददलर्ाद से र्ादी
नहीं की है बदजक दूसरी फरजाना ने ददलर्ाद से र्ादी
की है दजसका पदत नगर दनगम बरेली में चौकीदार था।
सम्भवत: जॉच में भूल इस कारण हुई सयोंदक दोनो
मदहलायें एक ही नाम की थी तथा एक ही मोहजले की
दनवासी थी व उनके पूवश पदतयों के नाम भी एक ही थे।
जहाुँ तक अपीलाथी फरजाना का र्ादकर
हुसैन से तलाक लेने का सम्बन्ध है, इस दबन्दु पर कोई
दलदखत तलाकनामा दादखल नहीं है। अपीलाथी के पदत
र्ादकर हुसैन की मृत्यु हो चुकी है। कदथत दर्कायतकताश
र्ादकर के पररवार के दकसी सदस्य को परीदक्षत नहीं
कराया गया है तथा न ही उन्हें मुख्य कोर्ादधकारी
अथवा तहसीलदार की ओर से प्रस्तुत दकया गया है।
अतः अपीलाथी फरजाना को उनके पदत र्ादकर हुसैन
द्वारा तलाक ददये जाने का तथ्य प्रथमदृष्टया सादबत नहीं
है।
जहाुँ तक अपीलाथी फरजाना द्वारा दूसरा
दववाह दकये जाने का सम्बन्ध है, इस सम्बन्ध में पहले
यह कहा गया था दक फरजाना ने ददलर्ाद के साथ
र्ादी की परन्तु सभी सादक्षयों को एक-दूसरे के सामने
उपदस्थत कर परीदक्षत दकया गया तो यह दवददत हुआ
10 All. Smt. Farzana Vs. State of U.P. & Ors.
645
दक अपीलाथी फरजाना ने दूसरी र्ादी नहीं की थी तथा
इस तथ्य को ददलर्ाद ने भी स्वीकार दकया है तथा
कथन दकया है दक उसकी पत्नी फरजाना अपीलाथी नहीं
है। साक्षी ररजवान ने अपीलाथी फरजाना को बुन्दन के
साथ घूमने का कथन दकया है तथा यह भी बताया है
दक मौहजले में इस बात की चचाश है दक दोनों ने र्ादी
कर दलया है परन्तु बुन्दन ने उपदस्थत होकर इस तथ्य से
इंकार दकया तथा कथन दकया दक उसने अपीलाथी
फरजाना से र्ादी नहीं की है, केवल ररश्तेदार होने के
कारण उसके घर आता-जाता है। अतः अपीलाथी
फरजाना का अपने पदत र्ादकर की मृत्यु के बाद पुनः
दववाह दकया जाना प्रथमदृष्टया सादबत नहीं है।
अतः श्रीमान जी से सादर अनुरोध है दक
उि आख्या माननीय उच्च न्यायालय के समक्ष
आवश्यक कायशवाही हेतु सादर प्रस्तुत की जाये।"

17. From a perusal of the
statements of the various persons recorded
by the learned Principal Judge, Family
Court, Bareilly, acting on this Court's
commission, it is pellucid that the Chief
Treasury Officer's doubt, that has led to
deprivation of the petitioner's pension, is
not based on a comedy of errors, but a
tragedy of them. From the stand taken by
the various witnesses, particularly, Dilshad
and his wife, the other Farzana, it is evident
that the other Farzana, different from the
petitioner, had a former husband, also by
the name Shakir, whom she got a divorce
from him during his lifetime and remarried
Dilshad. The petitioner's husband too was
Shakir Husain. It is not clear how a
complaint was laid to the Collector, but
evidently it was baseless. The fact that
Dilshad remarried the other Farzana after
she was divorced by her first husband,
Shakir, led to an inquiry in the complaint
being misdirected and reaching an incorrect
conclusion by the Lekhpal and the
Tehsildar that it was the petitioner, Farzana,
who had divorced her husband, Shakir and
remarried
Dilshad.
The
petitioner's
husband, Shakir was employed with the
Electricity Department, whereas the other
Farzana's first husband, who had divorced
that Farzana, was an employee of the Nagar
Nigam. The clincher has come in evidence
when Dilshad, on being confronted with the
petitioner Farzana, has said that she was
not his wife.

18. One of the other witnesses,
who threw some doubt that the petitioner,
Farzana too had remarried Bundan, could
not substantiate the fact as Bundan himself
denied it stoutly saying that he stays with
his wife, named Parveen, who is a cousin
of the petitioner, Farzana. There is
absolutely no documentary evidence, like a
talaqnama or nikahnama ever showing the
petitioner having been divorced by her
husband, Shakir Husain, or marrying
Dilshad or some other man during her
husband's lifetime or thereafter.

19. After looking to this testimony,
the learned Standing Counsel for the State
did not object to the proceedings before the
Commissioner or attempted to show that
there was any error about them. The report
of the Commissioner was also not objected
to in any manner. The learned Standing
Counsel appearing for the respondents
apparently realized their folly in mistaking
another Farzana for the petitioner and
going astray into holding the petitioner
disentitled.

20. This Court is convinced that
the petitioner is different from the other
Farzana, daughter of Iqbal, who remarried
Dilshad, after a divorce by her husband,
Shakir, a man different from the petitioner
Farzana's husband, Shakir Husain. There is,
thus, absolutely no reason for the Chief
Treasury Officer, Bareilly, objecting to
release of family pension to the petitioner,
in according with the PPO issued by the
646 INDIAN LAW REPORTS ALLAHABAD SERIES
Executive Engineer, Electricity Distribution
Division-I, Bareilly in her favour.

21. In the circumscribes, this writ
petition succeeds and is allowed. A
mandamus is issued to the Chief Treasury
Officer, District Bareilly, the District
Magistrate, Bareilly and the Executive
Engineer, Electricity Distribution DivisionI, Madhyanchal Vidyut Vitaran Nigam Ltd.,
Bareilly to ensure amongst themselves
payment of the petitioner's family pension
together with arrears within a period of one
month from the date of receipt of a copy of
this udgment. If arrears of pension are not
paid within a month, the petitioner will be
entitled to 6% per annum interest simple
for the period of delay. A mandamus shall
also issue commanding all the said
respondents to the effect that current family
pension shall be immediately released in
the petitioner's favour and paid to her
regularly hereafter in the same manner as
any other recipient of family pension.

22. There shall be no order as to
costs.

23. Let a copy of this judgment be
communicated to the Principal Secretary,
Government of U.P., Lucknow, the District
Magistrate, Bareilly, the Chief Treasury
Officer,
Bareilly
and
the
Executive
Engineer,
Electricity
Distribution
Division-I, Madhyanchal Vidyut Vitaran
Nigam Ltd., Bareilly by the Registrar
(Compliance).
----------
(2024) 10 ILRA 646
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.10.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.
Writ -C No. 38900 of 2018
Along with other connected cases

Greater Noida Industrial Development
Auth. ...Petitioner
Versus
Hem Singh & Ors. ...Respondents

Counsel for the Petitioner:
Mr. M.C. Chaturvedi, Sr. Adv., Mr. Aditya Bhushan
Singhal & Sri Vineet Kumar Pandey

Counsel for the Respondents:
C.S.C., Mr. Gopal Narain & Sri Akash Pandey

(A) Industrial Law - Regularization of
Workmen's Services - Section 2-A, 6E(2)(b), 6-F, 6-H (1) - U.P. Industrial
Disputes Act, 1947 - Section 3, Greater
Noida
Service
Regulations,
1993
-
Determination
of
master-servant
relationship and applicability of industrial
law
principles
for
regularization
of
workmen employed in permanent nature
of work - Industrial Tribunal has the
jurisdiction to order regularization of
employees if evidence suggests unfair
labor
practices,
including
denial
of
benefits for permanent work despite longterm employment.(Para -14,15,16)

Respondent-workmen employed by Greater
Noida Industrial Development Authority -
claimed regularization - alleging continuous
work in permanent roles - Tribunal ruled in
favor of regularization - with all services
benefits - citing unfair labor practices by
the Authority - Authority contested the lack
of a direct employment relationship. (Paras
3-15)

HELD: - No illegality in the award of the labour
court for regularization of the services of the
workmen. No interference required. Recovery
certificate issued to pay workmen's dues valid.
Court directed Collector to recover amount and
pay it to workmen within 3 months, starting
from January 4, 2024.(Para -22 to 26)

Petitions dismissed. (E-7)

List of Cases cited: