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B.V. Venkatacharya Vs. the Mysore Sugar Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectService;Contract
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal No. 159 of 1949-50
Judge
Reported inAIR1954Kant175; AIR1954Mys175
ActsIndian Contract Act, 1872 - Sections 73
AppellantB.V. Venkatacharya
RespondentThe Mysore Sugar Co. Ltd.
Appellant AdvocateA.R. Somanatha Iyer and ;S. Suryanarayana Rao, Advs.
Respondent AdvocateGutur Sreenivasa Rao, Adv.
Excerpt:
.....held that the appointment of the plaintiff was quite valid and legal, that there was no good reason for the termination of the service but it afforded no cause of action for the suit as the employment was at the will of the defendant. such a construction will perhaps place him even in a better position than a person appointed without that condition though ordinarily the absence of the condition implies that the appointment is permanent in the sense of not being liable to be brought to an end by the will of the employer. the plaintiff, it is conceded, could not have complained against the termination of service at the end of one year......and meaningless. such a construction will perhaps place him even in a better position than a person appointed without that condition though ordinarily the absence of the condition implies that the appointment is permanent in the sense of not being liable to be brought to an end by the will of the employer. 'probation' according to law lexicon of ramanath iyer means 'testing of a person's capacity, conduct or character especially before he is admitted to regular employment'. in webster's dictionary 'probation' is said to have been derived from the latin word 'probatio' and french 'probare' meaning to try, examine, prove and is itself defined as any proceeding designed to ascertain truth to determine character, qualification, etc.; examination; trial or a period of trial; as, to.....
Judgment:

Venkata Ramaiya, J.

1. This is a plaintiff's appeal against the dismissal of a suit for damages claimed on the ground of wrongful termination of service. The plaintiff who is a graduate in Agriculture was appointed Farm Superintendent on a salary of Rs. 300/- in the grade Rs. 300-25-500 on prohibition for 1 year, entered on his duties as such on 10-8-1946 and was served on 23-11-1946 with a notice intimating termination of his employment from 9-12-1346. He issued a notice on 23-1-1947 alleging that the termination of service was wrongful but the defendant in its reply of 21-3-1947 maintained that it was justified. Thereupon the suit was filed on 5-4-1947 seeking payment of Rs. 2487-1-6 as salary for unexpired period of appointment, Rs. 331-10-0 high price allowance, compensation of 1000-0-0 for mental worry, of 2000-0-0 for loss of reputation, of 500-0-0 for loss due to dislocation of affairs and 25-5-6 as notices charges, in all Rs. 6344-1-0.

Defendant denied liability to pay any amount and contended that the appointment of the plaintiff was not regular, that even otherwise its termination could not be questioned. The learned Subordinate Judge on a consideration of the evidence adduced in the case held that the appointment of the plaintiff was quite valid and legal, that there was no good reason for the termination of the service but it afforded no cause of action for the suit as the employment was at the will of the defendant. He therefore dismissed the suit with costs.

2. In this appeal the claim is limited to the salary and allowance besides a sum of Rs. 500/-as damages for wrongful dismissal, the other amounts being given up. The arguments on either side were confined to the nature and extent of the rights which an employee has when he is appointed on probation. No case in which the question was raised or decided has been brought to our notice. The term 'probation' is not defined or explained anywhere by the defendant in the rules governing appointments. The plaintiff did not ascertain the exact implication of the words 'on probation for one year' when he entered service.

It is possible that the plaintiff had the impression that he would not be disturbed at all. Likewise it is improbable that defendant would have sent away plaintiff if the former incumbent for the post was not restored. At the time the plaintiff was appointed the previous Superintendent was reverted to the post of Chemist. The reversion was subsequently held to be unjust or unnecessary and as such recalled so that plaintiff had to vacate the office in his favour. Both parties rely on the terms of the order of appointment to justify the stand of each and the question is as to which of these is to be upheld.

3. In Exhibit E which is a publication in the Hindu inviting applications for the post it is stated that 'candidates selected will be on probation for one year and salary will be according to qualifications'. There is no mention of the possibility of the candidate being confirmed at the end of one year. Exhibit J dated 8-8-1946 addressed to the plaintiff states

'....it has been decided to appoint you to the post on probation for one year on a salary of Rs. 300/- in the grade.... plus ......and to request you to report yourself for duty as early as possible'

The plaintiff applied for the post in response to Exhibit E and accepted the offer made in Exhibit J. Emphasis is laid on the period of one year on behalf of plaintiff and on the word 'probation' for the defendant, the argument on one side being that the period being fixed cannot be cut short by exercise of the defendant's option to terminate the service before the expiration of the period while the contention of the other party is that the option may be exercised at any time.

If as urged for the plaintiff the expression 'on probation for one year' entitles him to be employed for one year, irrespective of the wishes of defendant, the words 'on probation' will be superfluous and meaningless. Such a construction will perhaps place him even in a better position than a person appointed without that condition though ordinarily the absence of the condition implies that the appointment is permanent in the sense of not being liable to be brought to an end by the will of the employer. 'Probation' according to Law Lexicon of Ramanath Iyer means 'testing of a person's capacity, conduct or character especially before he is admitted to regular employment'. In Webster's Dictionary 'Probation' is said to have been derived from the Latin word 'Probatio' and French 'probare' meaning to try, examine, prove and is itself defined as any proceeding designed to ascertain truth to determine character, qualification, etc.; examination; trial or a period of trial; as, to engage a person on probation.

4. Obviously a probationer is not in the same position as others in service. His is a state of suspense attended with the uncertainty of an inchoate arrangement. Prima facie his rights and claims against the employer arc loss than those of others. 'Probation' cannot be taken to bind the parties to be employer and employee till it is over and confer on the employee rights not available to others. That would be contrary to the accepted notions of service as 'probation' is understood to be a stage preparatory and prior to confirmation. It is not disputed that the services of a person on probation can be dispensed with on grounds on which a person appointed without it can be dismissed. While the two to that extent are on a par, it is more reasonable to imply a disability or disadvantage for a 'probationer' than a privilege as against one who is not on probation. The period denotes the time up to which he will be on trial and not an assured duration of service. The plaintiff, it is conceded, could not have complained against the termination of service at the end of one year.

5. No objection can possibly be raised to a person on probation for any given time being confirmed even before the lapse of the said period. The employee will welcome it. Another way of examining the position is to see whether plaintiff himself could not have left the service before the completion of one year and whether by virtue of his being on probation for one year he was subject to the obligation to work so long under the defendant. If so, probation is not different from contract. The words have to be taken to convey the moaning ordinarily attaching to them. So read, the plaintiff having accepted the terms proposed cannot insist on being kept in service for a full year and make the termination of the service earlier the basis of an action for damages.

It was open to the plaintiff to seek modification of the terms proposed as he deemed fit but having agreed without demur to serve 'on probation' for whatever period it be cannot now be aggrieved, the option vested in the defendant to terminate the plaintiff's service being exercised, on the ground that it was done sooner than was expected. The defendant having the option to terminate the service must be deemed to have the option to fix the time at which the service is terminated. The plaintiff by submitting himself to work on trial for one year must be considered to have agreed to the contingency of being sent away and put himself in the hands of the defendant.

6. The claim in my opinion was rightly disallowed by the lower Court. The appeal is dismissedwithout costs.

7. Appeal dismissed.


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