TERMINATION OF APPOINTMENT OBTAINED BY FRAUD.
A. A. JOSE
(Querist) 10 February 2009
This query is : Resolved
Dear Experts/Sirs/Madam,
Kindly give your valuable opinion on this matter.
Pursuant to the orders passed by the SUPREME Court in a proceeding, the employer was required to regularise contract labourers working in the establishment on or before 20 January 1997. However, some of the persons who were actually not workers of the contractor on the said date managed to create false records in collusion with the Personal Manager of the establishment and accordingly obtained appointments on regular basis. Thereafter, matter was found out and after departmental proceedings, the Personal Manager was dismissed. Further, after issuing show cause notices and on consideration of their replies thereof and after giving personal hearins also, all concerned persons who were wrongly appointed , were terminated by the establishment but without regular departmental inquiries against them. Whether such termination or regular employee, though obtained employment on such fradulent means, without regular displinary enquiry,is legally tenable or not. Your opinion alongwith any supporting citations would be highly obliged please.
ARVIND JAIN
(Expert) 11 February 2009
NO WITHOUT PROPER ENQUIRY.
Murali Krishna
(Expert) 11 February 2009
Appointment vitiated by fraud does not give them any right. Supreme Court recently in many cases held so. Fraud vitiates every thing. For such people, PNJ not applicable.
The following cases may help you:
i)Illegal appointment:No person illegally appointed or appointed without following the prescribed procedure under the law, is entitled to claim that he should be continued in service. [Pankaj Gupta 7 others Vs State of J&K and others; (2004)8 SCC 353]
ii)Appointments made dehors statute: 1.Regularisation cannot be claimed as a right. Illegal appointment cannot be legalised by regularisation. A daily wager, in the absence of a statutory provision would not be entitled for regularisation. [Mahendra Jain Vs. Indore Development Authority; 2005 SCC (L&S)154].
2. Appointments: All appointments must be made in conformity with the constitutional scheme as laid down under Art 14 & 16 as well as rules under proviso to Art.309 or in terms of legislative statute. [State of M.P Vs.Arjunlal Rajak; (2006) 2 SCC 711]
iii) False caste certificate-No appointment
Employee obtained appointment on the basis that he belongs to ST. When the very foundation of his appointment collapsed, his appointment is no appointment in the eyes of law. As he had obtained appointment on a false caste certificate, by playing fraud, he does not have any right for pension after retirement. Such rights flow only if the appointment was valid and legal. Hence long years of service does not create any equity in his favour. Mere delay in making a reference does not invalidate the order of the scrutiny committee especially when there was fraud. [Bank of India Vs. Avinash V.Dandivikar; AIR 2005 SC 3395]
iv) No Notice
1. Cancellation of appointment for lack of qualification cannot be challenged on the ground of no notice. [Mohd.Sartaj & ors Vs. State of UP; 2006 SCC(L&S) 295]
2.Cancellation of appointment: Appointment of candidates not possessing requisite qualification for the post can be cancelled (within a short span of time) since they do not hold any right over the post and therefore no hearing is required before cancellation of their services. [Mohd Satraj Vs State of UP; 2006 SCC (L&S) 295]
v) Fraudulent appointments – No Notice required:
1. Supreme Court held that when the appointments were not in existence and were not issued by the competent authority but obtained by fraudulent means, no need to follow principles of natural justice and no need to issue notice before termination. [State of Manipur Vs.Token Singh; (2007) 2 SCC (L&S) 107]
2.AIR 1996 SC686 UOI VS. BHASKARAN Fraudulently obtained appointments could be legitimately treated as violative at the option of the employer. But because the employees have continued for number of years on the basis of such fraudulent Court cannot create any equity or any estoppel against the employer and further no court can be a party to the perpetuation of the fraudulent practice.
A. A. JOSE
(Querist) 12 February 2009
Dear Murali Krishna Sir,
Thanks a lot. It is so nice of you to have clarified the matter with relevant citations too and I grateful indeed.
With best wishes,
A.A.JOSE
Hiralal Das
(Expert) 08 April 2009
Thanks all of you the ld. members and the author.
I think your valuable opinions will assist everybody to solve their problem/matter in question properly.
A. A. JOSE
(Querist) 08 April 2009
Thank you very much Mr.Hiralal Das for your contribution.
