Swami Sadashiva Brahmendra Sar (Nil) 04 January 2011

Fraudulent appointment

An appointment on compassionate ground was held void ab initio and recovery of salary was also directed by the single judge. In letters patent appeal the Division bench has maintained the judgment of single judge but has set aside the direction for recovery of salary, on the basis that the petitioner was paid for his work and if salary is recovered, it will amount to "begar" which is prohibited under Art. 23 of the Constitution of India.

Was single judge wrong for directing recovery of salary which was paid to a fraulent appointee ? or Is Division Bench right in seting aside the direction for recovery ?

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3 Replies

Isaac Gabriel (Advocate) 04 January 2011

Here it tanamounts to two punshments.

Ahmed Daud Girach (Advocate) 05 January 2011

No work no pay is theory similarly when work is there payment should be made commensurate with the work done is as per contract act.This is like a queshi contract or work done without a contract as appointment was made void abinitio.He should be paid.Now coming to penal aspect he is penalised for wrong he has committed he is punished.In such cases departments staff also contribute in making such appointment out of sympathy of the deceased employee..This and other fraudulent appointment on wrong caste cericicate can also be seen.In all such cases promissory estoppel of employer is also not considered and they are terminated.But taking away salary drawn will be double punishment

INDERJIT SINGH (LEGAL ADVISER) 06 January 2011

The appointment being held void ab initio, it was no appointment in the eyes of law. The person having performed the work, (consdering it a case of quasi-contract), ought to have been paid for the work done even if there is no valid contract. However, the person may have to lose the terminal benefits earned by serving under a void contract.