Appointment Obtained Fraudulently Is Non-Est In Law, Not Necessary To Hold An Enquiry Before Termination: JKL High Court

The observations were made by Justice Sanjay Dhar while hearing a second appeal against the judgment of Sub-Judge, Srinagar as upheld by the Additional District Judge whereby suit of the plaintiff was dismissed.

The case of the plaintiff before the trial court was that she was appointed as a teacher in the Education Department of the Government of Jammu and Kashmir in 1989. In February 1998, the Chief Education Officer, Srinagar, issued a notice asking her to produce her appointment order and qualification certificates to which she replied by informing the Chief Education Officer that the original records of her appointment are lying with the department. In April 1998, the Director School Education, Kashmir terminated her services.

As a consequence, the plaintiff challenged the termination order through the medium of a civil suit on the ground that the order of termination had been passed without affording any opportunity of being heard to her and without holding any enquiry.

On the basis of the ex-parte evidence led by the plaintiff, the trial court, vide its impugned judgment came to the conclusion that since no appointment order had been issued in favour of the plaintiff, as such, there was no requirement of holding any enquiry.

The judgment of the trial court was assailed by the plaintiff before the 1st Appellate Court which upheld the findings of fact recorded by the trial court and held that the appointment of the plaintiff is fraudulent in nature. Both these orders were before the challenge before the bench in the instant civil second appeal.

Dealing with the contention of the plaintiff that she had served with the defendant department for about fifteen years and thus the defendant department had acquiesced in continuation of her services, the bench observed that in the plaint, the plaintiff had claimed that she was appointed in terms of the order issued by the District Education Officer, Srinagar, but she did not produce the said order when show cause notice was issued to her by the defendants nor did she produce the same during the trial of the case.

"The basis for claiming a legal right to continue in service and to lay challenge to an order of discontinuance in service had to be established by the plaintiff. A person who knocks the door of a court to prove existence of a legal right in his/her favour, is obliged to prove the existence of such a legal right in his/her favour", the bench underscored.

Explaining the law on the subject the bench observed that as per Illustration (g) to Section 114 of the Evidence Act, there is a presumption that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The fact that the plaintiff did not make any effort to summon the relevant record either from the office of origin of her appointment order or from the office where she is stated to have submitted the same would lead to the inference that no such order was in existence, the court recorded.

Having come to the conclusion that the plaintiff had failed to prove her appointment, her mere continuance in the defendant department for about fifteen years would not entitle her to continue in service, said the court.

Deliberating on the contention of the petitioner/plaintiff that the services of the plaintiff could not have been terminated without following principles of natural justice and without affording an opportunity of being heard to her the bench observed that the appointment which has never been in existence is non-est in the eyes of law and hence when an appointment is non-est in the eyes of law or is based upon forgery and fraud it is not necessary for the employer to hold an enquiry before terminating the services of such an employee.

In view of the above discussion the bench dismissed the appeal for being devoid of any merit.

Case Title : Mtr Mehmooda Vs State of J&K

Citation : 2022 LiveLaw (JKL) 234

Coram : Justice Sanjay Dhar

Counsel For Petitioner : Mr Zahoor Shah

Counsel For Respondent : Mr Sheikh Mushtaq AAG

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