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Prabhu Lal Upadhya Vs. Dist. Board and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All276
AppellantPrabhu Lal Upadhya
RespondentDist. Board and anr.
Excerpt:
- - he alleged that since his appointment he had faithfully discharged his duties to the best of his ability but that on 29th october 1931 the said board had illegally passed a resolution purporting to dismiss him from his office as secretary and that in consequence of such resolution he had been prevented from carrying on his duties as secretary and had been deprived of his salary. it was alleged that amba prasad had acted maliciously and had persuaded a large number of the members of the board to support him in a campaign to procure the plaintiff's dismissal and that such campaign ultimately ended in the meeting of 29th october 1931 when the resolution complained of was passed. in short, they alleged that the facts proved showed that the plaintiff had been guilty of gross misconduct.....harries, j.1. these are three connected appeals against a decree of the learned additional civil judge of agra granting the plaintiff rs. 3000 damages against defendant 1, the agra district board, and rupees 1000 damages against defendant 2, rai bahadur amba prasad, the chairman of the said board. the suit was brought by the plaintiff against the said district board and its chairman claiming the following reliefs:(a) a declaration that a meeting of the board held on 29th october 1931 was not held in accordance with the rules and that the proceedings thereof were conducted in an illegal and high handed way and that it be further declared that the resolution passed at the said meeting purporting to dismiss the plaintiff from his office as secretary of the said board was null and void,.....
Judgment:

Harries, J.

1. These are three connected appeals against a decree of the learned Additional Civil Judge of Agra granting the plaintiff Rs. 3000 damages against defendant 1, the Agra District Board, and Rupees 1000 damages against defendant 2, Rai Bahadur Amba Prasad, the Chairman of the said Board. The suit was brought by the plaintiff against the said District Board and its Chairman claiming the following reliefs:

(a) A declaration that a meeting of the Board held on 29th October 1931 was not held in accordance with the rules and that the proceedings thereof were conducted in an illegal and high handed way and that it be further declared that the resolution passed at the said meeting purporting to dismiss the plaintiff from his office as Secretary of the said Board was null and void, illegal, wrongful, unjustifiable, ultra vires and incapable of being given effect to. (b) That an injunction be granted to the plaintiff restraining the said Board from giving effect to the said resolution dismissing the plaintiff from his service, (c) That the said Board be ordered to reinstate the plaintiff in his appointment from the date of his alleged dismissal, (d) In the alternative if it be held that the plaintiff is not entitled to be reinstated, Rs. 21,000 damages against the defendants or either of them who may be held liable.

2. The learned Civil Judge refused to grant the plaintiff any of the reliefs claimed under (a), (b) and (c), but he held that the plaintiff was entitled to damages for wrongful dismissal and he gave the plaintiff Rs. 3000 damages as against the District Board of Agra and Rs. 1000 against Amba Prasad, the Chairman thereof. First Appeal No. 341 is an appeal by the District Board of Agra against the said decree and First Appeal No. 346 of 1933 is an appeal by defendant 2, Amba Prasad, against the said decree. First Appeal No. 348 of 1933 is the plaintiff's appeal against the dismissal of his claims for a declaration, injunction and reinstatement and in the alternative the plaintiff contends that if he is not entitled to such relief then the damages awarded should be increased by a sum of Rs. 9500.

3. The case for the plaintiff was that he was appointed the Secretary of the District Board of Agra on 1st September 1929 at a salary of Rs. 250 per mensem to be increased annually by Rs. 10 per mensem up to a maximum of Rs. 400 per mensem. He alleged that since his appointment he had faithfully discharged his duties to the best of his ability but that on 29th October 1931 the said Board had illegally passed a resolution purporting to dismiss him from his office as Secretary and that in consequence of such resolution he had been prevented from carrying on his duties as Secretary and had been deprived of his salary. It was the plaintiff's case that this resolution purporting to dismiss biro was the result of ill-feeling existing between Amba Prasad, the Chairman, and the plaintiff's brother Joti Prasad who was a member of the Board. It was alleged that Amba Prasad had acted maliciously and had persuaded a large number of the members of the Board to support him in a campaign to procure the plaintiff's dismissal and that such campaign ultimately ended in the meeting of 29th October 1931 when the resolution complained of was passed. According to the plaintiff he was served with a copy of certain vague charges but was not given a reasonable opportunity of defending himself. Further the plaintiff contended that the meeting itself at which the said resolution was passed was illegally convened and that the said resolution was not passed by a two-thirds majority as required by law. Further it was said that during the said meeting Joti Prasad and another member of the Board demanded a poll which was wrongfully refused by the Chairman. In the circumstances the plaintiff contended that the said resolution purporting to dismiss him was illegal and of no effect and that he was in law still the Secretary of the Board and consequently that he was entitled to the reliefs claimed. The claim for damages was a purely alternative claim which was made to meet the contingency of the Court refusing to grant relief by way of declaration, injunction and reinstatement.

4. A number of pleas were raised by the defendants. They denied that there was anything illegal in the said dismissal and on the contrary alleged that the plaintiff had been dismissed by a valid special resolution carried by a two-thirds majority at a legally convened meeting of the Board. They further contended that in any event the plaintiff held his office at the will and pleasure of the Board and therefore the Board were entitled to dismiss him without assigning any cause and without framing any charges or giving the plaintiff an opportunity of meeting them. In the alternative they contended that if they were bound to frame charges and give the plaintiff an opportunity of meeting them, such had been done and that the charges made had been fully established. In short, they alleged that the facts proved showed that the plaintiff had been guilty of gross misconduct which entitled them to dismiss him even if he was an officer who held his office during good behaviour. Lastly the defendants contended that even if the resolution dismissing the plaintiff was illegal and contrary to law, the only relief that the plaintiff could obtain was by way of damages.

5. The learned Civil Judge after a prolonged hearing of the case ultimately held that the plaintiff was not a servant holding office at the pleasure of the Board but on the contrary that he was an officer who could only be dismissed upon a charge or charges framed and proved. He held that the charges made were in many respects vague and unsatisfactory, but in any event he held that they had not been proved. Consequently he was of opinion that the dismissal was illegal and gave the plaintiff a cause of action. He further held that the notice convening the meeting of 29th October 1931 at which the resolution purporting to dismiss the plaintiff was passed was not in accordance with the rules or bye-laws of the Board and consequently the said meeting was improperly convened and no special resolution could validly be passed thereat. He further held that during the said meeting a poll had been demanded by Joti Prasad and his supporters and such request had been wrongfully refused by the Chairman Amba Prasad. Lastly he held that the said resolution was not carried by a two-thirds majority and therefore the resolution was not such as the law required and the dismissal of the plaintiff as a result of it was illegal.

6. The learned Civil Judge was of opinion however that the plaintiff was not entitled to any relief by way of declaration, injunction or re-instatement but he held that the plaintiff was entitled to relief by way of damages. He assessed the latter at Rs. 4000 and awarded the plaintiff Rs. 3000 thereof against the District Board and the remaining Rs. 1000 against the Chairman. It is essential in these appeals to decide firstly what was the precise nature of the plaintiff's service. It was contended by the defendants that the plaintiff was a servant holding his office at the will and pleasure of the Board and that he could be dismissed by the Board without any reasons whatsoever being assigned for such dismissal. It was contended that in such circumstances the plaintiff's dismissal gave him no cause of action whatsoever against the defendants or either of them. On the other hand, it was contended by the plaintiff that he held his office during good behaviour and that he could not be dismissed without charges being framed against him and such charges proved. Further, it was contended that under no circumstances whatsoever could he be dismissed except by a special resolution passed at a meeting of the Board by a two-thirds majority. I shall first consider the nature of the plaintiff's service.

7. It is common ground that there was no written contract between the plaintiff and the District Board. The statute in force during all material times was the U.P. District Boards Act, 1922. By Section 70 of that Act it is provided that 'every Board shall by special resolution appoint a secretary who shall be a whole time salaried officer.' The plaintiff was on 1st September 1929 appointed Secretary of the Board by such special resolution and thereafter carried on the duties of Secretary. The section relating to dismissal is Section 71 of the Act which provides that:

A Board may by special resolution punish or dismiss its secretary, provided (a) that such resolution is passed by a vote of not less than two-thirds of the total number of members of the Board for the time being, or (b) that it is passed by a vote of not less than one-half of the total number of such members and is sanctioned by the Local Government.

8. The only material portion of this section in the present case is (a), because it is common ground that the alleged special resolution passed was never sanctioned by the Local Government. By Section 172(2) the Local Government are empowered to make rules consistent with this Act, (a) providing for any matter for which power to make provision is conferred, expressly or by implication, on the Local Government by this or any other enactment in force at the commencement of this Act; and (b) generally for the guidance of a Board or any Government Officer in any matter connected with the carrying out of the provisions of this Act. The Local Government have made certain rules relating to the dismissal of officers in the service of the Board and the material rule in this case is Rule 3, Ch. 3, District Board Manual, which is in these terms:

No officer or servant shall be dismissed without a reasonable opportunity being given him of being heard in his own defence. Any written defence tendered shall be recorded and a written order shall be passed thereon. Every order of dismissal or order confirming a dismissal shall be in writing and shall specify the charge brought, the defence and reasons for the order.

9. To this rule is appended a note that:

This rule shall not apply to cases in which a Board discharges an officer or servant for some other reason than a fault committed by him.

10. The case for the appellant Board is that the plaintiff was a mere servant at will and that he could be dismissed at any time without any cause having been assigned. It was the Board's contention that Section 71 gave the plaintiff no right to insist on dismissal by special resolution carried by a two-thirds majority and that even if he was dismissed contrary to the terms of this section, yet he would have no cause of action. With regard to Rule 3, Ch. 3, District Board Manual, the appellant Board contended that such rule gave the plaintiff no rights and that the rule was only intended for the guidance of the Board and that any breach or breaches of its provisions could give the plaintiff no cause of action. On the other hand, the plaintiff contended that by reason of Section 71 of the Act lie had something in the nature of a freehold in his office and that he could not be dismissed at all except by a valid special resolution passed by a two-thirds majority. Further, he contended that by reason of Rule 3, Ch. 3, District Board Manual, he could not be dismissed even by a valid special resolution passed by a two-thirds majority until a reasonable opportunity had been given him of being heard in his own defence and the other provisions of that rule strictly complied with.

11. In my view officers of District Boards are public officials and are in a sense Government servants. The U.P. District Boards Act, 1922, is entitled an Act 'to make better provision for Local Self-Government in rural areas of the United Provinces' and the opening words of the Preamble are

Whereas it is expedient to make better provision for Local Self-Government in rural areas of the United Provinces;

Officers of a District Board are part of the machinery of Self-Government of these Provinces and are in that sense Government servants or something akin to such servants. In this Court it has been held repeatedly that no valid distinction can be made between Government servants in the true sense of the word and persons in the position of the plaintiff serving local bodies created by statutes for the purposes of Local Government. By this Act it is expressly provided by Section 89 that:

Every officer or servant of a Board shall be deemed to be public servant within the meaning of the Penal Code; and in the definition of 'legal remuneration' in Section 161 of that Code, the word 'Government' shall, for the purpose of this section, be deemed to include a Board.

12. It has not been seriously contended before us that the position of the plaintiff is different from that of a Government servant and indeed it could not be contended having regard to recent decisions of this Court. In Roshan Lal v. District Board, Aligarh : AIR1935All802 a Bench of this Court treated a Secretary of a District Board upon the same footing as a Government servant. Similarly in Municipal Board, Shahjahanpur v. Sukha Singh : AIR1937All264 another Bench of this Court treated the Secretary of a Municipal Board as being a Government servant or as a person liable to the same disabilities as a Government servant.

13. It has for a long time been held in England and in India that ordinarily a Government servant holds his office at the will and pleasure of the Crown. In Shenton v. Smith (1895) A.C. 229 their Lordships of the Privy Council held that a Colonial Government was on the same footing as the Home Government as to the employment and dismissal of servants of the Crown; and in the absence of special contract such servants held their offices during the pleasure of the Crown. In that case the respondent was gazetted without any special contract to act temporarily as a medical officer during the absence on leave of the actual holder of the office. He was dismissed by the Government before such leave had expired, and it was held that he had no cause of action on the ground that he was a mere servant at will who could be dismissed at the pleasure of the Crown. At p. 234 Lord Hobhouse who delivered the judgment of the Board observed:

They consider that, unless in special cases where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown - not by virtue of any special prerogative of the Crown, but because such are the terms of their engagement, as is well understood throughout the public service. If any public servant considers that he has been dismissed unjustly, his remedy is not by a lawsuit, but by an appeal of an official or political kind. Dr. Smith did, in fact, make such an official appeal to the Secretary of State, and the Colonial Government recognized his right to do so, and prolonged his tenure so as to allow time for the decision of that appeal, and to save him from injury if it should go in his favour. Where there is representative Government the other estates may, if they think fit, make themselves the mouthpiece of that sort of grievance against the Crown as of any other. In a Crown Colony, as Western Australia then was, this appeal to the Secretary of State exhausted the plaintiff's remedies within the Colony. As for the regulations, their Lordships again agree with Stone J. that they are merely directions given by the Crown to the Governments of Crown Colonies, for general guidance, and that they do not constitute a contract between the Crown and its servants. In the heading they are stated to be 'printed for the information and guidance of the Governors of Her Majesty's Colonies, and of all Her Majesty's officers subordinate to them.' They are alterable from time to time without any assent on the part of Government servants, which could not be done if they were part of a contract with those servants. On the face of them it is pointed out (see Regn. 64) to be the general rule in Crown Colonies that offices are holden during Her Majesty's pleasure. The difficulty of dismissing servants whose continuance in office is detrimental to the State would, if it were necessary to prove some offence to the satisfaction of a jury, be such as seriously to impede the working of the public service. No authority, legal or constitutional, has been produced to countenance the doctrine that persons taking service with a Colonial Government to whom the regulations have been addressed, can insist upon holding office till removed according to the process thereby laid down.

14. In that case the procedure prescribed by certain regulations for the dismissal or removal of Government servants had not been complied with, yet their Lordships of the Privy Council held that such gave a dismissed servant no cause of action on the ground that upon a true interpretation of the statute the plaintiff held his office at the will and pleasure of the Crown. It is to be observed that in this case there was nothing in any statute restricting the right of the Crown to dismiss the plaintiff.

15. The principle of this case has been followed in a number of cases in India and in a very recent case Venkata Rao v. Secretary of State 0043/1936 the principle laid down in Shenton v. Smith (1895) A.C. 229 was re-affirmed by their Lordships of the Privy Council. In that case the plaintiff who was in the Civil Service of the Crown in India was dismissed but such dismissal was not preceded by any enquiry as required by the rules made under Section 86-B, Government of India Act, 1919, and he consequently brought an action against the Secretary of State claiming damages for wrongful dismissal from Government service. He contended that the statute gave him a right enforceable by action to hold his office in accordance with the rules and that he could only be dismissed as provided by the rules and in accordance with the procedure prescribed thereby. Their Lordships however held that Section 96-B, Government of India Act, 1919, in express-terms stated that offices were held during, pleasure and on a true view of that section no such right of action as was contended for by the plaintiff existed. A suit for damages was therefore not maintainable.

16. It is clear therefore that these cases lay down that in ordinary cases a servant of the Crown holds his office at pleasure and though there may be rules prescribing for malities before dismissal, yet a failure to comply with such rules and formalities does not give a Government servant a cause of action. There are however cases where the statute itself places limitations upon the Crown's right to dismiss a servant and in such cases it has been held that the service is not at the will and pleasure of the Crown and that a dismissal which is not in accordance with the terms of the statute gives the servant a cause of action. Such was the case in Gould v. Stuart (1896) A.C. 575. In that case it was held that certain provisions of the New South Wales Civil Service Act of 1884 were manifestly intended for the protection and benefit of an officer of the Crown and were inconsistent with service at the will and pleasure of the Crown and consequently such provisions restricted the power of the Crown to dismiss him. At p. 577 Sir Richard Couch who delivered the judgment stated:

It is the law in New South Wales as well as in this country that in a contract for service under the Crown, civil as well as military, there is, except in certain cases where it is otherwise provided by law, imported into the contract a condition that the Crown has the power to dismiss at its pleasure.... The question then to be determined is, has the Civil Service Act, 1884, made an exception to this rule Part 1 of the Act provides for the classification of officers according to their salaries, the increase of salaries, and the appointment of a Civil Service Board.... The provision in Part 3 are the most material in the present case. Section 32 provides for the suspension of any officer who in the opinion of the Minister or of any officer authorized by him to investigate any matters or accounts pending a report shall have, committed any act which appears to him to justify suspension; but if the suspension is not made by the Minister, the officer making it is immediately to lay before the Minister a report stating his reasons for the suspension, and the Minister may either confirm it or restore the officer to his office. Then Section 83 enacts that if the Minister orders or confirms the suspension he shall report the same to the Governor, who after calling on the officer to show cause or make explanation may remove the suspension, or according to the nature of the offence dismiss the officer from the service, or reduce him to a lower class therein or to a lower salary within his class, or deprive him of such future annual increase as he would otherwise have been entitled to receive or any part thereof during any specified time, or punish him by fine not exceeding 50; provided that the Governor before deciding may direct the Board, or appoint one or more persons to enquire into the matter, with authority to receive evidence and to summon and examine witnesses on oath. Section 34 provides for punishment by fine not exceeding 10 of an officer who is negligent or careless in the discharge of his duties; Section 35 for the summary dismissal of any officer convicted of felony or any infamous offence, and the forfeiture of his office by becoming bankrupt or applying to take the benefit of an insolvent Act or making an assignment for the benefit of his creditors; and Section 37 for fine, suspension or dismissal in case of dishonourable conduct or intemperance. These provisions, which are manifestly intended for the protection and benefit of the officer, are inconsistent with importing into the contract of service the term that the Crown may put an end to it at its pleasure. In that case they would be superfluous, useless, and delusive. This is in their Lordships' opinion an exceptional case, in which it has been deemed for the public good that a civil service should be established under certain regulations with some qualification of the members of it, and that some restriction should be imposed on the power of the Crown to dismiss them.

17. The terms of the statute had not been complied with in the dismissal of the plaintiff in that particular case and he had brought an action to recover 1500 damages against the Government for his wrongful dismissal. The Supreme Court had held that the plaintiff had a cause of action and this view was upheld by the Board. This case 18 a clear authority for the proposition that if a statute contains any provisions intended to afford protection to a servant, then the breach of such provisions will give the servant a cause of action. In R.T. Rangachari v. Secy. of State their Lordships considered the effect of the Proviso to Section 96-B, Government of India Act, 1919. That Proviso reads as follows:

But no person in that service (the civil service of the Crown) may be dismissed by any authority subordinate to that by which he was appointed.

18. The Board held that:

This statutory safeguard should be observed with the utmost care and a deprivation of pension based upon a dismissal purporting to be made by an official who is prohibited by statute from making it rests upon an illegal and improper foundation.

19. At p. 224 Lord Roche stated:

There is however another point raised and in the Courts below decided adversely to the plaintiff which has given their Lordships considerable anxiety. Section 96-B contains the following Proviso:

'But no person in that service (the civil service of the Crown) may be dismissed by any authority subordinate to that by which he was appointed.' The purported dismissal of the appellant on 28th February 1928, emanated from an official lower-in rank than the Inspector-General who appointed the appellant to his office. The Courts below held, that the power of dismissal was in fact delegated and was lawfully delegated to the person who purported to exercise it. Counsel for the respondent, candidly expressed a doubt as to the possibility of maintaining this view and indeed it is manifest that if power to delegate this power could be taken under rules it would wipe out a Proviso and destroy a protection contained not in rules but in the section itself. Their Lordships are clearly of, opinion that the dismissal purporting to be thus ordered in February was by reason of its origin bad and inoperative.

20. This statement of Lord Roche is also in my view a clear authority for the proposition that where a statute contains provisions for the protection of a servant and restricts the Crown's right of dismissal such provisions must be strictly complied with and a dismissal which is not in accordance with the precise terms of the statute will give the servant a cause off action.

21. A number of English cases have been cited to us in which a similar principle has been laid down or followed. In Smith v. Macnally (1912) 1 Ch. 816 it was held by Warrington J. that Section 7 of the Education Act, 1902, which imposed certain restriction on the right of dismissal, of a school teacher gave the latter a statutory right to the position which she had acquired under the Act unless and until the requirements of the Act with regard to her dismissal had been complied with. In that particular case the statute provided that the managers of a school could not give a notice to the plaintiff dismissing her without the consent of the Local Education Authority and as such consent had not been obtained the notice of dismissal was-invalid and the plaintiff was held not to have been dismissed at all. A similar case was the case in Hanson v. Radcliffe Urban District Council(1922) 2 Ch. 490 where the decision in Smith v. Macnally (1912) 1 Ch. 816 was followed. These two English cases were decided upon the particular terms of the Education Act concerned, but they do show that where a servant is appointed under a statute which imposes certain restrictions on the power of dismissal, such a, servant has a cause of action if the master purports to dismiss the Servant in contravention of the terms of the statute.

22. A case somewhat similar to the present case was Wright v. Marquis of Zetland (1908) 1 K.B. 63 In that case the Court of Appeal in England considered whether or not a certain clause in an approved scheme for the Richmond Grammar School was contrary to the provisions of Section 22, Endowed Schools Act, 1869. That section enacted that a scheme under that Act

shall provide for the dismissal at pleasure of every teacher and officer in the Endowed School to which the scheme relates, including the principal teacher.

23. Clause 30 of the scheme provided that the governors may at pleasure dismiss the head master without assigning cause after six calendar months' written notice given to him in pursuance of the resolution passed at two special meetings held at an interval of not less than 14 days, such resolution being affirmed at each meeting by no less than two-thirds of the governors present and voting on the question. It was argued that this clause was inconsistent with Section 22 of the Act because it imposed restrictions upon the powers of governors to dismiss a head master though the Act provided that the governors had power to dismiss such head master at pleasure. Vaughan Williams L.J., who delivered the judgment of the Court with which Sir G. Barness, President and Bigham J. concurred, observed:

It seems to me that the provision that dismissal at pleasure shall be carried out or expressed by a resolution passed at two special meetings is not inconsistent with dismissal at pleasure any more than if it was said that the dismissal must be in writing or under seal. It is a mere mode of the expression of the pleasure or will of the Governors, without assigning cause, that the Head Master shall be dismissed. But I do not think that the fact that clause 30 provides that the resolution is to be passed at two special meetings held at an interval of not less than 14 days prevents the dismissal being at pleasure or at will in the widest sense of those words respectively, although the pleasure or will by the very terms of clause 30 cannot take effect until after the lapse of at least 14 days. The Governors cannot the less dismiss fit pleasure because their pleasure has to be expressed by steps involving a lapse of time. This seems to mo to get over all difficulties based on the suggestion that the words at pleasure in clause 30 of the scheme are inconsistent with the words of Section 22, Endowed Schools Act, 1869.

24. A consideration of these authorities shows, in my opinion, that ordinarily a Government or public servant holds his office at pleasure and that he can be dismissed without cause assigned. Further non-compliance with any rules framed under statutes by the Government or a public authority will not give a dismissed servant a cause of action as such rules are framed for the guidance of officers of the Government or the public authority and can be changed from time to time. Therefore, a failure to comply strictly or at all with rules cannot give the servant a cause of action in damages or otherwise. On the other hand authorities like Gould v. Stuart (1896) A.C. 575 and the cases which have followed it show that where a statute under which an officer or servant is appointed imposes restrictions upon the power of dismissal, the failure to comply with the strict provisions relating to dismissal can give the servant a cause of action.

25. In the present case the rule which has been drafted under the powers conferred by Section 172, U.P. District Boards Act, cannot give the plaintiff a cause of action. As I have stated previously the relevant rule is Rule 3 of Ch. 3, District Board Manual, which enjoins

that no officer or servant shall be dismissed without a reasonable opportunity being given him of being heard in his own defence. Any written defence tendered shall be recorded and a written order shall be passed thereon. Every order of dismissal or order confirming a dismissal shall be in writing and shall specify the charge brought, the defence and reasons for the order.

26. In my view this is a rule for the guidance of the authority concerned, viz. the District Board of Agra, and though the terms of this rule ought to be strictly complied with, yet a failure to do so cannot give the plaintiff a cause of action. The learned Civil Judge was of opinion that this rule required the Board to frame definite and specific charges and to prove them. In my judgment the view of the learned Civil Judge cannot be sustained having regard to the authorities upon this question. In my view this rule and the alleged failure to comply with its provisions gives the plaintiff no cause of action whatsoever.

27. On the other hand, the failure to comply with the terms of the statute can give the plaintiff a cause of action. As I have stated, Section 71, U.P. District Boards Act, expressly provides that a secretary can be dismissed only by a special resolution passed by a vote of not less than two-thirds of the total number of members of the Board for the time being or passed by a vote of not less than one-half of the total number of such members and in the latter case sanctioned by the Local Government. This is a term of the statute itself and must be complied with. The position of the present plaintiff is very much like the position of the head master which was discussed in Wright v. Marquis of Zetland (1908) 1 K.B. 63 to which I have previously referred. In my view the plaintiff in the present case held his office at pleasure or at will in the widest sense of that term, but the will of the Board could by statute only be declared in a certain way. As no sanction of the Local Government has been obtained in this case the will of the Board dismissing the plaintiff could only validly be expressed by a special resolution supported by a two-thirds of the members of the Board for the time being. If the will of the Board was expressed in any way inconsistent with the express provisions of the statute, then a dismissal following such an expression of will is in my view illegal and contrary to the statute. The statute gives the plaintiff a protection in that it provides that the will of the Board can only be expressed in a certain way. A mere majority of the [members of the Board is not enough. There must be a vote of not less than two-thirds of the total members of the Board and such must be a vote upon, a special resolution. If the provisions of Section 71 have not been complied with in this case the plaintiff in my view has a cause of action.

28. It is therefore necessary for me to consider whether or not the plaintiff was dismissed in accordance with the express terms of the statute. That he was dismissed in fact there can be no question. Immediately after the resolution, he was deprived of his office and compelled to hand over to the Board all papers and files connected with his office, and since that time he has not been employed and has not been paid his salary. The learned Civil Judge came to the conclusion that the plaintiff had not been dismissed in accordance with the statute upon a number of grounds. In the first place he held that the meeting at which the special resolution had been passed had not been validly convened, because the members had not been given seven clear days' notice of the meeting as required by the bye-laws of the Board framed under the provisions of Section 173 of the Act. The learned Civil Judge further held that a poll had been demanded at the meeting and had been refused and lastly that the resolution was not carried by the requisite majority. He held as a fact that only 17 members voted for the resolution and not 21 as alleged by the defendants and consequently the resolution was not supported by two-thirds of the members of the Board which at that time numbered 30. After a full consideration of the evidence relating to the proceedings of the Board on 29th October 1931, I am satisfied that the finding of the learned Civil Judge as to the numbers who voted for the dismissal of the plaintiff cannot be disturbed.

29. There can be no question that at the beginning of the month of October 1931, great hostility existed between the plaintiff and Amba Prasad, the Chairman of the Board, and also there can be little doubt that the cause of this hostility was the enmity which existed between the plaintiff's brother Pundit Joti Prasad Upadhya and Amba Prasad. They undoubtedly belonged to rival factions in this Board and by the month of October 1931 Amba Prasad was undoubtedly of opinion that he had obtained sufficient support to rid the Board of the plaintiff. On 11th October 1931, 23 members of the Board signed a requisition, which is printed at p. 329 of the paper book, addressed to the Chairman of the Board calling upon the latter to convene a special meeting to consider the question of the dismissal of the plaintiff. On 19th October 1931 such a meeting took place at which 22 members were present. One member left the meeting before the proceedings commenced and it is the defendants' case that this member was actually taken away by force by persons who were opposed to Amba Prasad.

30. According to the plaintiff's case this member left voluntarily, but whatever be the truth of the matter there can be no doubt that this incident left the party of Amba Prasad without the necessary majority to carry a resolution dismissing the plaintiff. Consequently another resolution was proposed which it was thought did not require any special majority and that was a resolution reducing the secretary's salary to Rs. 50 per mensem on the ground of financial stringency. This resolution was passed and it will be necessary for me at a later stage again to refer to this resolution. Amba Prasad's party was clearly not satisfied with this resolution and on 20th October 1931, 19 members signed a fresh requisition addressed to the Chairman calling upon him to convene another meeting to consider the dismissal of the secretary. This requisition is printed at p. 345 of the paper book. On 22nd October 1931, the Chairman issued notices of a meeting to be held on 29th October 1931 and in due course such a meeting was held. In the meantime the plaintiff had been given notice of the charges leveled against him which were set out in the requisition dated 20th October 1931. The meeting began with a consideration of the charges and the defence of the Secretary was considered. It is said on behalf of the plaintiff that further charges were made and that no opportunity was given to him to reply to the same. Ultimately a resolution dismissing the plaintiff was proposed and seconded and carried, it is said by the defendants, by 21 votes to 2 and such is recorded in the minutes.

31. There can be no doubt that the notice prescribed by the bye laws was not given for this meeting. This was a meeting at which a special resolution was to be passed. Section 48, U.P. District Boards Act, 1922, provides that except where it is otherwise prescribed under this Act, any business may be transacted at any meeting: Provided that no business which is required to be transacted by special resolution shall be transacted unless previous notice of the intention to transact such business has been given. Section 173 of the Act provides that a Board may, by special resolution, make regulations consistent with the Act and with any rule, and with any regulation made by the Local Government as to the manner of convening meetings, and of giving notice thereof. The District Board had passed certain regulations or bye-laws relating to meetings which are printed at p. 327 of the paper book and regulation or bye-law 3 provides that:

Seven clear days at least before any special or ordinary meeting the secretary shall issue a notice to each member of the place, day and hour of the meeting. To every member the notice shall be sent by post. The notice shall contain the agenda of the meeting.

32. In the present case it is obvious that seven clear days' notice was not given as the notice was sent on 22nd October 1931 convening a meeting on 29th October 1931. In my view however it is not necessary to decide whether the failure to give the prescribed notice invalidated these proceedings because whether the meeting was convened validly or invalidly the resolution was not carried by the necessary majority. The plaintiff's case throughout has been that at this meeting a poll was demanded and that it was refused. The regulations or bye-laws to which I have referred provide that:

Unless a poll is demanded by any member present' at a meeting a declaration made at the meeting, by the Chairman that the resolution has been passed shall be sufficient warrant for the making; of an entry to that effect in the minute book kept under Section 53(1) of the Act. The Chairman may take the sense of the house by show of hands.

33. It is further provided that:

If a poll is demanded by any member present, it shall be taken on printed labels of Ayes and Noes on which members shall sign their names, and the result of such poll shall be deemed to be the resolution of the Board at the meeting.

34. The defendants on the other hand have undoubtedly changed their case with regard to this issue and this throws the gravest suspicion upon the evidence led by them relating to the conduct of this meeting, and the result of the voting. (His Lord, ship then discussed the evidence and proceeded.) The result therefore is that it is established that the resolution purporting to dismiss the Secretary was not carried by the majority required by Section 71 and consequently the dismissal of the Secretary in pursuance of that resolution was illegal and wrongful.

35. It has also been argued on behalf of the plaintiff that the wrongful refusal to permit voting by poll vitiated the whole of the proceedings and reliance has been placed on certain English authorities. However in my judgment it is unnecessary to decide that legal question because in my view it is clear that the resolution was not carried by the majority required by statute and therefore it was an invalid and; illegal resolution. The position therefore is that the plaintiff was deprived of his office by a resolution not in accordance with the statute. As I have stated previously the plaintiff must be regarded as a servant holding his office at the will and pleasure of the Board subject to this qualification that such will and pleasure could only be expressed in a certain manner prescribed by statute. The plaintiff had a. right to remain in his office until the will of the Board determining his service was-declared in a legal manner. He was however deprived of his office in a manner inconsistent with the Act and by a resolution which was contrary to law. In those circumstances the plaintiff has in my view a cause of action against the Board.

36. It has been argued however on behalf of the defendants that it has been held by this Court that even in the circumstances which I have indicated the plaintiff can have no cause of action. Reliance has been placed by the defendants upon the Bench case in Roshan Lal v. District Board, Aligarh : AIR1935All802 but in my view that case is not a Bench authority for the view that the present plaintiff has no cause of action. The facts of that case were that the plaintiff who was the Secretary of the District Board of Aligarh was deprived of his office by a resolution of the Board abolishing the post of secretary and the post of engineer and creating a combined post of secretary and engineer to which they appointed another person. Bennet J. held that the secretary was not in fact dismissed and that all that had happened was that the post of secretary had been abolished and that consequently the plaintiff had been deprived of his office. The case came before this Court by way of second appeal and the finding of the lower Appellate Court was that the resolution which deprived the plaintiff of his office was not one of dismissal under Section 71, District Boards Act, but a resolution under Section 81 and Bennet J. expressly approves of this finding. Allsop J. on the other hand was of opinion that the particular resolution in that case amounted to an order of dismissal and therefore it will be seen that the learned Judges disagreed as to the nature of the resolution. Both the learned Judges however held that the plaintiff had no cause of action, but in my judgment Bennet J.'s view must be confined to the facts as accepted by him. He however did state in his judgment at p. 807:

If the resolution had been one of dismissal under Section 71, the irregularity would have been a matter for the plaintiff to bring to the notice of Government on appeal as an appeal is allowed by the rules and the Act, but on the principle in Shenton v. Smith (1895) A.C. 229 where irregularities were found in the dismissal, such irregularities cannot give a right to sue in a Court of law.

37. This statement was not strictly necessary for the decision of the case having regard to Bennet J.'s view of the facts and is therefore obiter. Allsop J. who held that the resolution was one of dismissal states at p. 811:

The powers of the Board are exercised subject to the general control of the Local Government and it is for the Local Government in its discretion to compel the Board to exercise these powers in a proper manner. I do not consider that the provisions that a secretary should be dismissed only by a resolution passed by a certain majority gives the secretary a right to institute a suit against the Board. He can doubtless appeal to the Local Government if his dismissal is not warranted.

38. It will be seen that both the learned Judges were of opinion that the plaintiff in that case could appeal to the Local Government though there was no provision for such an appeal in the Act of 1922. Such a provision however has since been made by an amending Act and it would appear as if it was not made clear to the learned Judges that in the Act of 1922 no appeal to the Local Government was provided. In any event, with the greatest respect to the learned Judges, I am unable to agree with the view that an express provision in the statute concerning the majority required to pass a resolution of dismissal does not give a secretary a cause of action. Bennet J. was of opinion that the case fell within the principle in Shenton v. Smith (1895) A.C. 229 but in my view the case of a secretary of a District Board dismissed as a result of a resolution passed by less than the statutory majority falls rather within the principle in Gould v. Stuart (1896) A.C. 575 and not within the principle in Shenton v. Smith (1895) A.C. 229. Having regard to the difference of opinion between the learned Judges as to the facts in Roshan Lal v. District Board, Aligarh : AIR1935All802 . I do not think that it is an authority which can be said to bind me in any way in deciding the present case.

39. Counsel for the defendants also relied upon the Bench case in Municipal Board, Shahjahanpur v. Sukha Singh : AIR1937All264 but in my view that case in no way conflicts with the views which I have expressed in the present case. In that case the learned Judges expressly held that it was not a case of dismissal. They found that what had occurred was that the office of the secretary had been abolished and that the plaintiff's services were no longer required. In their judgment the learned Judges observed:

We are satisfied that a Municipal Board like any other employer of labour, is entitled to discharge servants it no longer desires to employ. It is true that while specific provision is made in the Act for the dismissal or punishment of a servant, there is no such provision for the discharge of any employee whose services are no longer required. Without special statutory provision however a Municipal Board is dearly entitled to perform all the acts necessary in the conduct of its business. The discharge of servants, whose offices have been abolished as a matter of policy, is, in our judgment, clearly a step which a Municipal Board is entitled to take in the conduct of its business.

40. It is clear therefore that this case does not assist the defendants in any way because the plaintiff in that case had not been dismissed but on the contrary his office had been abolished and he had become redundant. All that was decided was that a Municipal Board like any other authority was not bound to maintain in its service redundant officers or servants. In my judgment there is no authority of this Court which compels me to hold that in the present case the plaintiff has no cause of action. Holding as I do that the plaintiff was deprived of his office as the result of an illegal resolution, the only question left to determine is the nature of the relief to which he is entitled. As I stated at the commencement of this judgment the plaintiff claimed a number of reliefs. The learned Civil Judge held that the plaintiff was not entitled to the declaration or injunction claimed or to any order reinstating him in his office as secretary of the Board. In my judgment the learned Civil Judge was right in refusing these reliefs.

41. In my view this is not a case where an injunction could possibly be granted to the plaintiff and without an injunction the declaration claimed would not be really effective. The plaintiff was a servant of the Board whose duties were of a personal and confidential character and it would be utterly impossible for any Court to ensure that in the event of an injunction being granted its terms would be strictly carried out by the parties. In England a Court of Equity never entertained jurisdiction in cases of covenants or agreements for personal services or covenants or agreements which involved duties of a personal and confidential character : see Stocker v. Brocklebank (1851) 3 Mac. & G. 250, Pickering v. Bishop of Ely (1843) 12 L.J. Ch. 271 and Johnson v. Shrewsbury & Birmingham Railway Co. (1853) 3 De G.M. & G. 914.

42. Section 56, Specific Relief Act provides inter alia that an injunction cannot be granted to prevent the breach of a contract the performance of which could not be specifically enforced, and Section 21 of the same Act provides inter alia that a contract cannot be specifically enforced which is so dependent on the personal qualifications or volition of the parties or otherwise from its nature is such that the Court cannot enforce specific performance of its material terms. In my view the present case falls within these provisions of the Specific Relief Act and that being so no injunction can be granted. As I have stated if no injunction is granted, then even if a declaration was given it would not be really effective.

43. In my view however this is not a case-where a declaration should be granted to the plaintiff. Section 42, Specific Relief Act provides that:

Any person entitled to any legal character, or to any right as to any property, may institute a, suit against any person denying or interested to deny, his title to such character or right, and the Court may, in its discretion, make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.

44. The plaintiff is not a person entitled to any rights as to any property, but it is contended that he is a person entitled to a legal character and that being so he can in this suit ask the Court to make the declaration prayed for in the plaint. It has been held, however, by Courts in India that a suit for a declaration that the dismissal of a Government or public servant is without good grounds and contrary to Government rules or statute is not maintainable, as in such a case the plaintiff is not a person entitled to any legal character. This was specifically held in a Bench case of the Calcutta High Court : Ram Das Hazra v. Secy. of State (1912) 16 I.C. 922. In that case the plaintiff was a Government servant who alleged that he had been wrongfully dismissed. The Court, however, held that no cause of action lay against the Secretary of State for India and further that a claim could not be made for a declaration that he had been dismissed in contravention of the rules applying to Government servants. At p. 925 Mookerjee J. observed:

The plaintiff is not entitled to a declaration, that his dismissal has been in contravention of the rules, because it does not fall within the scope of Section 42, Specific Relief Act, nor can it admittedly lead up to any consequential relief against the Grown which the Court is competent to grant.. Section 42 as was explained in Deokali Koer v. Kedar Nath (1912) 39 Cal. 704 does not sanction every form of declaration but only a declaration that the plaintiff is entitled to a specific legal character or right as to property. Now, there is obviously no claim by the plaintiff as to a right to any property; can we then say that he has a claim or title to any legal character which the defendant is interested to deny? The question must obviously be answered in the negative.

45. This case was followed by this Court in Roshan Lal v. District Board, Aligarh : AIR1935All802 previously cited which was a case of a secretary of a District Board claiming a declaration that he had been dismissed contrary to the terms of the U.P. District Boards Act, 1922. Bennet J. who delivered the principal judgment in the case and with whom Allsop J. concurred expressly approved of the dictum of Mookerjee J. to which I have referred. At p. 808 Bennet J. states:

The reasoning given in this judgment applies to the relief of a declaration asked for by the present plaintiff that the resolution of 16th October 1932, is void and such a declaration cannot be granted under Section 42, Specific Relief Act.

46. A similar view was taken by another Bench of this Court in Municipal Board, Shahjahanpur v. Sukha Singh : AIR1937All264 previously cited. That was a somewhat different case where the services of a secretary of the Municipal Board had been dispensed with because the office of secretary had been abolished by a special resolution of the Board. It was contended that the Board had no power either to abolish the office or to dispense with the services of the secretary and a declaration was claimed to the effect that the plaintiff was still the secretary of the Board. The Bench who decided that case however observed:

There can be no doubt however in our judgment that he is not entitled to maintain a suit for a declaration that he had not been legally dismissed by the defendant Board and that he was still their servant and entitled to continue drawing his salary. The Courts have no jurisdiction to force an employer of labour to retain the services of a servant he no longer wishes to employ. Every employer is entitled to discharge a servant for whose services he has no further need. If his discharge amounts in the circumstances to wrongful dismissal then no doubt the employee, is entitled to damages. He is not however entitled to a declaration that he is still in the employment of his master, nor is he entitled to claim the continuance of his salary from his employer.

47. On the other hand, it may be contended that as the secretary of a District Board is appointed under the provisions of Section 70, U.P. District Boards Act, he is a person who has a definite legal character or status and that view is supported by the English case in Smith v. Macnally (1912) 1 Ch. 816 In that case a school teacher to whom the provisions of the Education Act, 1902, applied was wrongfully dismissed and the Court granted a declaration that the plaintiff was still a servant of the defendant upon the ground that the Act conferred on teachers a status which they were entitled to retain until the requirements of the Act with regard to their dismissal had been complied with. A similar case was Hanson v. Radcliffe Urban District Council(1922) 2 Ch. 490 in which Russell J. and the Court of Appeal held that the plaintiff was entitled to a declaration that he was still a servant and to an injunction to restrain the defendants, from dismissing the plaintiff.

48. These cases however differ from the present case in material respects. The proceedings were of the nature of interlocutory proceedings and these declarations-and injunctions were granted pending the final hearing and disposal of the cases. In my judgment however I am bound to follow the Indian cases which are decisions, upon Section 42, Specific Relief Act, which governs this case and to hold that the plaintiff is not entitled in law to the declaration, and injunction prayed for in his plaint. In any event, even if his suit for a declaration was maintainable I should not be prepared to grant a declaration in this case. By the express terms of Section 42, Specific Relief Act, the granting of a declaration is discretionary. The words of the section are 'and the Court may in its discretion make therein a declaration'. As I have stated previously, the Court cannot grant an injunction in this case and that being so, even if the plaintiff was legally entitled to a declaration I would not be prepared to grant one because the mere granting of a declaration without an injunction would not be an effective remedy. In any event relief by way of damages is in my view adequate in cases of this kind and that being so a Court can in its discretion refuse a declaration or injunction.

49. Further, the conduct of the plaintiff in my view disentitles him to any relief by way of a declaration. The old maxims of the English Court of Chancery apply in my judgment to claims for relief in the nature of equitable relief in the Indian Courts. If the old maxims 'He who comes to equity must do equity' and 'He who comes to equity must come with clean hands' apply to this case, then, quite clearly a Court should not grant the plaintiff any equitable relief or relief by way of declaration. The facts of this case disclose a. deplorable state of affairs. Very soon after the plaintiff was appointed Secretary friction began between the plaintiff and the Chairman of the Board. (His Lordship then discussed the evidence and proceeded.) Further, I am satisfied that the plaintiff did associate himself with his brother and other members of the Board who were opposed to the Chairman and his party and that also in my view disentitles him to ask the Court to exercise its discretion in his favour. The counter charges which the secretary makes in his note of 24th December 1930 were charges which the Chairman's opponents were making against him and the fact that the Secretary sees fit to set out these charges in the note shows to my mind quite clearly that the Secretary was not a disinterested party but was obviously throwing his weight on the side of his brother and the latter's supporters. For the reasons which I have given I am satisfied that even if a suit by the plaintiff for a declaration was maintainable the claim for such declaration was rightly dismissed.

50. As to the claim for reinstatement it is clear that the Court has no jurisdiction to grant the same. It could only do so by granting the declaration and injunction prayed for in the plaint and for the reasons which I have given the plaintiff is not I entitled to either of these two forms of relief. That being so his claim for reinstatement was rightly dismissed. The learned Civil Judge came to the conclusion that as the plaintiff had been improperly dismissed he was entitled to damages and with that view I agree. The learned Judge [awarded the plaintiff Rs. 4000 and apportioned the damages against the two defendants. He awarded the plaintiff Rs. 3000 damages against the defendant Board and Rs. 1000 against the defendant Amba Prasad, the Chairman of the Board.

51. In the first place I am not satisfied that the plaintiff is entitled to a sum of rupees 4000 as damages and such sum appears to me to be excessive in all the circumstances of the case. The learned Judge awarded the damages; (a) to compensate him for loss of salary from the date of his illegal dismissal to the date of this suit; (b) to compensate him for the trouble and inconvenience caused by the necessity of instituting this suit; (c) to compensate him for the trouble and inconvenience caused by having to adduce a mass of evidence to prove his case which the defendants had resisted on all points when they must have known that some of the points at any rate were of no substance.

52. In my judgment this is a case of wrongful dismissal and the plaintiff is entitled to damages to compensate him for the actual loss caused to him by such dismissal and the Court is not entitled to consider what compensation a servant should be given for the inconvenience caused to him in having to bring his suit and prove his case. As to the loss suffered by the plaintiff the latter is wholly silent. Counsel for the plaintiff frankly admitted before the Court that he was really pressing for a declaration and an injunction and he could point to little or nothing on the record which could assist the Court in assessing damages. The plaintiff himself gave no evidence whatsoever as to the damage which he had suffered and further gave no evidence that he had attempted in any way to minimise his loss. The plaintiff's attitude throughout has been that he has been deprived of his office by an illegal resolution and that in law he is still the secretary and therefore entitled to his salary. There can be no question that the plaintiff was dismissed, though in the circumstances of the case illegally, and in my view all that he is entitled to is damages to compensate him for the loss which he has suffered. To assess that loss in this case is extremely difficult having regard to the complete absence of evidence upon this question.

53. The plaintiff was of course deprived of his salary from the moment he was dismissed and from the evidence of Mr. C.W. Grant, Commissioner of Agra, which is printed at p. 24 it would appear that the plaintiff's salary in the month of October 1931 was Rs. 270 per month and that it would be increased in March 1932.

54. According to the evidence the plaintiff was a qualified legal practitioner and there can be no doubt that after his dismissal he could have returned and practiced at the local bar in Agra. Whether he did so or not and what he earned if he did return to the bar it is impossible to say. In my view the plaintiff, the moment he was dismissed, was under a duty to minimise his damages and to seek some post similar to the one which he had held under the Board or to return to practice and thus minimise his loss. In no circumstances is a dismissed servant permitted to do nothing for himself and then claim an indefinite loss of salary. The very fact that the plaintiff gave no evidence that he had attempted to minimise his loss suggests strongly that he was not really suffering any substantial loss as a result of his dismissal. One would expect a man deprived of a monthly salary of Rs. 270 to do something and to give evidence of his attempts to obtain suitable employment. Here no such evidence has been given. In assessing damages, a Court is entitled to take into consideration all that has happened or is likely to happen to increase or mitigate the servant's loss. In my view it is clear that the plaintiff's days were numbered and that even if he had not been illegally dismissed by the resolution of 29th October 1931 he would not have long remained an officer of the Board. Within a fortnight two meetings had been held with a view to dismissing the plaintiff. On 19th October 1931 a meeting was held, but as I have pointed out one member of the Board either left the meeting or was taken away by force and consequently the necessary majority for passing a resolution of dismissal could not be obtained. However at that meeting, a resolution reducing the secretary's salary to Rs. 50 per mensem was passed. I have grave doubt as to the validity of this resolution because in my view it was a resolution punishing the secretary and such a resolution required the same majority as a resolution dismissing him. That is clear from the provisions of Section 71, U.P. District Boards Act, 1922. From the evidence it is clear that his salary was not reduced because of financial stringency but was merely reduced because it was found he could not at that meeting be dismissed. The fact that a majority of the Board were prepared to resort to such tactics shows that at that time the secretary was highly unpopular and that his tenure of office was precarious in the extreme. On 29th October 1931 when the resolution dismissing the secretary was carried, it is also clear that though such resolution was not carried by the necessary majority it found very substantial support from the members of the Board. In those circumstances even if the secretary had not been illegally dismissed on 29th October 1931, his tenure of office was precarious and likely to be brought to an end within a short period of time. The Court is entitled to look at what was likely to happen if the illegal resolution had not been carried and in my view the probabilities were that a valid resolution dismissing the secretary would have been carried within a comparatively short period from 29th October 1931.

55. It also cannot be overlooked that the plaintiff was an educated man who was intellectually well qualified for positions carrying a salary of Rs. 270. Had he made any attempt to obtain any such position, he might well have succeeded within a reasonable period of his dismissal. Further, if he had cared to return to practice at the bar he might also have substantially minimised his loss within a reasonable time. I must have regard to all these circumstances in assessing damage and in my view the plaintiff will be amply compensated for his loss by awarding him a sum of Rs. 810 which amounts to three months' salary. In ordinary circumstances a person in the plaintiff's position would be entitled to three months' notice to terminate his employment and such a period would in my view be sufficient to enable the plain, tiff to obtain other employment and earn his previous salary.

56. As I have stated the learned Civil Judge apportioned the damages between the Board and the chairman, but I am unable to understand upon what principle he acted. He found that the plaintiff was maliciously and illegally dismissed and that Amba Prasad the Chairman was actuated by malice. Even if that be the case such is no ground for apportioning the damages. The learned Judge was treating the case as a case of wrongful dismissal and the plaintiff's employer was undoubtedly the Board. It is true that Amba Prasad took an active part in the dismissal of the plaintiff but he was acting on behalf of the Board and as a servant of the Board. The Board could only act through its officers and the act of dismissal by the Board had to be performed by the officers of the Board. If the Board acted maliciously it was due to the fact that its members were malicious and I am unable to see how a chairman or a member of the Board can be made liable for damages for wrongful dismissal when the dismissal is an act of the Board itself. The employer is the person liable to pay damages for wrongful dismissal and such being the case, no decree should have been passed against Amba Prasad. Counsel for the plaintiff has argued that the damages awarded against Amba Prasad were damages for conspiracy or for unlawfully procuring the dismissal of the plaintiff. In para. 6 of the plaint it is stated that

while the plaintiff was the Secretary of the Board, Amba Prasad, defendant 2, out of malice conspired with some other members of the Board to harm the plaintiff;

and that is all that is said concerning any conspiracy. Throughout the whole of proceedings the case was treated as a case of illegal dismissal or an attempted dismissal and it is for the dismissal that damages were awarded against Amba Prasad. In my view it is impossible to support these damages upon any ground of conspiracy or such like. It is also impossible to support these damages upon the ground that Amba Prasad wrongfully procured the illegal dismissal of the plaintiff. The damages for such an act would be the loss suffered by the plaintiff as a result of his dismissal and such have been awarded to him as damages for wrongful dismissal by the Board. Clearly the plaintiff cannot obtain damages against the Board to compensate him for the loss caused by this dismissal and also recover from Amba Prasad the same damages for procuring such wrongful dismissal. In any event such an allegation is not pleaded and as I have stated no suggestion was made through out that the claim for damages against Amba Prasad was based on any different grounds from the claim for damages against the Board. The learned Civil Judge apportioned the damages merely upon the ground that Amba Prasad had acted maliciously and in my view that is no ground whatsoever for awarding damages against Amba Prasad. In my view the claim for damages in this case was a claim for damages solely for illegal or wrongful dismissal, and that being so, the only defendant which could be made liable was the Board which employed the plaintiff. That being so, the damages awarded against Amba Prasad cannot be maintained. For the reasons which I have given, I hold that the learned Civil Judge was right in dismissing the plaintiff's claim for all reliefs except a relief by way of damages and as to the latter I hold that the damages awarded were excessive and must be reduced to a sum of Rs. 810 and that such sum must be decreed against the defendant Board only.

Rachhpal Singh J.

57. I agree with my learned brother and have nothing more to add.

58. For the reasons given above we allow F.A. No. 341 of 1933 in part and reduce the damages awarded to the plaintiff against the respondent Board to Rs. 810 and modify the decree accordingly. The parties should pay and receive costs in this Court and in the Court below in proportion to their success or failure. We allow F.A.N. 346 of 1933, set aside the decree passed against Amba Prasad and dismiss the plaintiff's claim against him with costs in this Court and the Court, below. Further we dismiss F.A. No. 348 of 1933 with costs.


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