Delhi HC: A person terminated from private employment can file suit for declaration that termination was illegal

A meaningful reading of the Plaint shows that the respondent

has not sought any re-instatement in service but had claimed that the

termination is illegal and hence null and void.

13. Learned counsel for the respondent before the trial court

categorically stated that the respondent did not seek any reinstatement.

14. Even if prayer (a), as framed, could not be granted, respondent

could claim damages etc. for wrongful termination in case respondent

is able to establish that the termination is illegal or contrary to any

settled principles and that is what the respondent has sought in prayers

(b) to (d).

15. In case the contentions of learned counsel for the petitioner

were to be accepted, then respondent/plaintiff would be left

remediless. On the one hand, as an employee, she cannot claim the

relief of reinstatement and on the other hand the employee she is

stated to be barred from claiming any damages. That can never be the

intention of the law.

16. It is also a settled position that under order 7 Rule 11 CPC, a

plaint cannot be dissected and rejected in part. The plaint has to be

rejected as a whole or not at all.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment delivered on: 27.09.2019

C.R.P. 215/2019

INTERTEK INDIA PVT LTD Vs PRIYANKA MOHAN 

CORAM:-

 MR JUSTICE SANJEEV SACHDEVA

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Whether employee can be granted service benefits if he is terminated from service?

Dismissal is punitive in nature while a termination of employment simply brings an employment contract to an end. 'Dismissed' as per Oxford Dictionary is "treat as unworthy of serious consideration and refuse further hearing to (a case)", whereas Black's Law Dictionary defines 'dismissal' as "termination of an action or claim without further hearing".

8. In the present case, a notice was served upon the respondent. A fair hearing was given and therefore, it cannot be said that the petitioner had exercised the powers arbitrarily. Termination of employment as per Black's Law Dictionary is the complete severance of an employer-employee relationship.

9. Many a times dismissal and termination are held to be synonymous, however, they differ in letter and spirit as well as the ascertainment of the rights of the employee would differ. A dismissal on account of grave misconduct, as in the present case, would necessarily entail dismissal. In the present case, the Petitioner Corporation has been fair enough to conduct an enquiry and give an opportunity of hearing to the employee.

10. Thus, the difference between termination and dismissal is that-Dismissal could be on account of misconduct involving dishonesty or criminality and that is not the case in termination. On termination, the employee would be entitled to receive gratuity and other terminal benefits, whereas the same cannot be granted in case of dismissal.

IN THE HIGH COURT OF BOMBAY

W.P. No. 1347 of 2004

Decided On: 05.10.2018

 Maharashtra State Road Transport Corporation  Vs.  A.B. Patel

Hon'ble Judges/Coram:

Sadhana S. Jadhav, J.

Citation: 2019(2) MHLJ 207

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Whether court can lift veil In Case Of Termination Of employee on probation?

In the instant case as we have stated already hereinbefore that though the impugned order was made under the camouflage or cloak of an order of termination simpliciter according to the terms of the employment, yet considering the attendant circumstances which are the basis of the said order of termination, there is no iota of doubt in inferring that the order of termination had been made by way of punishment on the ground of misconduct and adverse entry in service record without affording any reasonable opportunity of hearing to the petitioners whose services are terminated and without complying with the mandatory procedure laid down in Article 311(2) of the Constitution of India.

The position is now well settled on a conspectuous of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad-hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct inefficiency or not.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 230 and 231 of 1982

Decided On: 07.05.1986

Jarnail Singh and Ors.
Vs.
State of Punjab and Ors.

Coram:
A.N. Sen and B.C. Ray, JJ.

 citations: 1986 AIR 1626, 1986 SCR (2)1022

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How to ascertain territorial jurisdiction of court in case of termination of employee?

Therefore, the ratio of the judgment in the case of Sterling
Agro Industries Ltd. etc. etc. (supra) will have no application and will not
help the petitioner for holding that this Court has territorial jurisdiction.
Even as per the case of Sterling Agro Industries Ltd. etc. etc.
(supra) at least a part of cause of action has to arise in Delhi for this Court
to have territorial jurisdiction to file a case, and no part of cause of action
has arisen in Delhi in the present case because simply existence of an order
in the file of the Government at Delhi does not create any right or liability,
and which right or liability is created only on communication of the order,
and which order dated 28.10.2015 in the present case was communicated to
the petitioner at Goa.
10. In view of the above, this Court has no territorial jurisdiction
and the writ petition is therefore dismissed, and the petitioner can always
approach the competent court of territorial jurisdiction in accordance with
law.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) No.10392/2015
 Pronounced on: 1st December, 2016
MR. P K S SHRIVASTAVA 
v
UNION OF INDIA AND ANR.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA

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