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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Wrongful termination of employee from service will be set aside if there is violation of principles of natural justice

 In the case at hand, it is clear as crystal that on the
basis of a complaint made by a member of the Legislative
Assembly, an enquiry was directed to be held. It has been
innocuously stated that the complaint was relating to illegal
selection on the ground that the appellant did not possess
the requisite qualification and was appointed to the post of
Chest Therapist. The report that was submitted by the
Cabinet (Vigilance) Department eloquently states about the
conduct and character of the appellant. The stand taken in
the counter affidavit indicates about the behaviour of the
appellant. It is also noticeable that the authorities after
issuing the notice to show cause and obtaining a reply from
the delinquent employee did not supply the documents. Be
that as it may, no regular enquiry was held and he was
visited with the punishment of dismissal. It is well settled in
law, if an ex parte enquiry is held behind the back of the
delinquent employee and there are stigmatic remarks that
would constitute foundation and not the motive. Therefore,
when the enquiry commenced and thereafter without
framing of charges or without holding an enquiry the
delinquent employee was dismissed, definitely, there is clear
violation of principles of natural justice. It cannot be
equated with a situation of dropping of the disciplinary
proceedings and passing an order of termination simpliciter.
In that event it would have been motive and could not have
travelled to the realm of the foundation. We may hasten to
add that had the appellant would have been visited with
minor punishment, the matter possibly would have been
totally different. That is not the case. It is also not the case
that he was terminated solely on the ground of earlier
punishment. In fact, he continued in service thereafter. As
the report would reflect that there are many an allegation
subsequent to the imposition of punishment relating to his
conduct, misbehaviour and disobedience. The Vigilance
Department, in fact, had conducted an enquiry behind the
back of the appellant. The stigma has been cast in view of
the report received by the Central Vigilance Commission
which was ex parte and when that was put to the delinquent
employee, holding of a regular enquiry was imperative. It
was not an enquiry only to find out that he did not possess
the requisite qualification. Had that been so, the matter
would have been altogether different. The allegations in the
report of the Vigilance Department pertain to his
misbehaviour, conduct and his dealing with the officers and
the same also gets accentuated by the stand taken in the
counter affidavit. Thus, by no stretch of imagination it can
be accepted that it is termination simpliciter. The Division
Bench has expressed the view that no departmental enquiry
was required to be held as it was only an enquiry to find out
the necessary qualification for the post of Chest Therapist.
Had the factual score been so, the said analysis would have
been treated as correct, but unfortunately the exposition of
factual matrix is absolutely different. Under such
circumstances, it is extremely difficult to concur with the
view expressed by the Division Bench.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8662 of 2015
(Arising out of S.L.P.(C) NO.8450 OF 2012)
Ratnesh Kumar Choudhary ... Appellant
 Versus
Indira Gandhi Institute of Medical
Sciences, Patna, Bihar and Others ... Respondent
Citation;2015 ALLSCR3681
Dipak Misra, J.
Dated;October 15, 2015

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Basic principles for grant of back wages in case of setting aside of wrongful termination of employee

 In the case of Deepali (Supra) the appellant was working as a
teacher in a primary school, who was proceeded against departmentally on

charges of insubordination etc. and was placed under suspension and was
subsequently terminated. The School Tribunal found action of the
Management wholly arbitrary and vitiated due to violation of principles of
natural justice. The School Tribunal also took cognizance of the fact that
the appellant was not gainfully employed and this aspect was not
controverted by the Management. The School Tribunal, in such
circumstances, ordered her reinstatement with full back wages. That order
was modified by a learned Single Judge of this Court as regards payment of
the back wages. That was the order which was subject matter of challenge
before the Hon'ble Supreme Court. It has been inter alia held that, as a
normal rule an employee becomes entitled to reinstatement with back
wages, once the dismissal/termination, is found to be illegal. After taking
survey of the various decisions, the Hon'ble Apex Court has culled out the
following principles on the question of grant of back wages.
“(i) In cases of wrongful termination of
service, reinstatement with continuity of service and back
wages is the normal rule.
(ii) The aforesaid rule is subject to the rider
that while deciding the issue of back wages, the
adjudicating authority or the court may take into
consideration the length of service of the
employee/workman, the nature of misconduct, if any, found
proved against the employee/workman, the financial
condition of the employer and similar other factors.
(iii) Ordinarily, an employee or workman
whose services are terminated and who is desirous of

getting back wages is required to either plead or at least
make a statement before the adjudicating authority or the
court of first instance that he/she was not gainfully
employed or was employed on lesser wages. If the employer
wants to avoid payment of full back wages, then it has to
plead and also lead cogent evidence to prove that the
employee/workman was gainfully employed and was
getting wages equal to the wages he/she was drawing prior
to the termination of service. This is so because it is settled
law that the burden of proof of the existence of a particular
fact lies on the person who makes a positive averment
about its existence. It is always easier to prove a positive
fact than to prove a negative fact. Therefore, once the
employee shows that he was not employed, the onus lies on
the employer to specifically plead and prove that the
employee was gainfully employed and was getting the same
or substantially similar emoluments.
(iv) The cases in which the Labour
Court/Industrial Tribunal exercises power under
Section 11A
of the Industrial Disputes Act, 1947 and finds
that even though the enquiry held against the
employee/workman is consistent with the rules of natural
justice and/or certified standing orders, if any, but holds
that the punishment was disproportionate to the
misconduct found proved, then it will have the discretion
not to award full back wages. However, if the Labour
Court/Industrial Tribunal finds that the employee or
workman is not at all guilty of any misconduct or that the
employer had foisted a false charge, then there will be
ample justification for award of full back wages.

(v) The cases in which the competent court
or tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the principles of
natural justice or is guilty of victimising the employee or
workman, then the court or tribunal concerned will be fully
justified in directing payment of full back wages. In such
cases, the superior courts should not exercise power under
Article 226 or Article 136 of the Constitution and interfere
with the award passed by the Labour Court, etc. merely
because there is a possibility of forming a different opinion
on the entitlement of the employee/workman to get full
back wages or the employer's obligation to pay the same.
The courts must always keep in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is
the employer and sufferer is the employee/workman and
there is no justification to give a premium to the employer
of his wrongdoings by relieving him of the burden to pay to
the employee/workman his dues in the form of full back
wages.
(vi) In a number of cases, the superior
courts have interfered with the award of the primary
adjudicatory authority on the premise that finalisation of
litigation has taken long time ignoring that in majority of
cases the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants cannot
be blamed or penalised. It would amount to grave injustice
to an employee or workman if he is denied back wages
simply because there is long lapse of time between the
termination of his service and finality given to the order of
reinstatement. The courts should bear in mind that in most

of these cases, the employer is in an advantageous position
visavis
the employee or workman. He can avail the
services of best legal brain for prolonging the agony of the
sufferer i.e. the employee or workman, who can illafford
the luxury of spending money on a lawyer with certain
amount of fame. Therefore, in such cases it would be
prudent to adopt the course suggested in Hindustan Tin
Works (P) Ltd. (1979) 2 SCC 80.
(vii) The observation made in J.K. Synthetics
Ltd. case, (2007) 2 SCC 433 that on reinstatement the
employee/workman cannot claim continuity of service as of
right is contrary to the ratio of the judgments of threeJudge
Benches and cannot be treated as good law. This part
of the judgment is also against the very concept of
reinstatement of an employee/workman.”
It can thus be seen that it is the normal rule to grant back
wages/salary once the Court/Tribunal awards reinstatement. However, this
normal rule is subject to wellknown
exceptions and there is a discretion in
the matter of grant of back wages/salary. Albeit such a discretion is judicial
in nature and has to be exercised in the facts and circumstances of each
case and no straitjacket
formula can be laid down. In the case of Upekshit
Samaj Kalyan Samiti, Ballarpur...Versus...Education Officer (Secondary)
and others, reported in (2009) 15 SCC 194, the Hon'ble Apex Court had
restricted the back wages to 50%, while in the case of South Bengal State
Transport Corporation...Versus...Ashok Kumar Ghosh and others,
reported in (2010) 11 SCC 71 it was held that, where the punishment was

set aside on a technical ground, the back wages could not be granted and

were accordingly denied.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4732/2003

 Dnyanshwar  Vithuji Ghude Vs  State of Maharashtra,
CORAM
: A.P. BHANGALE AND
C.V. BHADANG, JJ.
Date of pronouncing the judgment : 01.10.2014
Citation;2015(2) ALLMR 647

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