1. This appeal is by the plaintiff whose suit for damages for wrongful dismissal, which he placed at Rs. 700/- was decreed in the trial Court. On appeal it was held he was entitled to one month's salary in lieu of notice and the rest of the claim was dismissed. The learned Single Judge has confirmed the decision of the first appellate Court.
2. The facts are as follows : The plaintiff was employed by the Akola Education Society, Akola. as a teacher, and his employment was to be from 15th June 1950 to 31st March 1951. The society issued an order, which is Ex. P-l, in which It was stated that he was employed on Rs. 70/-, with the usual C. C. L. A., with effect from 19th June 1950 till 3lst March 1951,
On 29th August 1950 the President of the Education Society sent a letter to the plaintiff in which it was stated that in view of the financial situation of the school it was not possible for the management to continue his services as a teacher from 1st September 1950. In other words, two days before his services were to be terminated he was told that he would not be required from 1st September 1950.
3. It is an admitted fact that the plaintiff tried to obtain other employment but failed, and it has been accepted by the learned Single Judge that he did everything to mitigate the damages. Indeed, the learned Single Judge has stated that if the dismissal was wrongful the plaintiff would be entitled to the salary claimed by him.
4. The trial Court held that the dismissal was wrongful and that plaintiff was entitled to serve for the whole term up to 31st March 1950 and that he was thus entitled to get damages which he claimed, viz., Rs. 700/- being equivalent to seven months' salary at Rs. 70 per month and C. C. L. A. for those seven months at Rs. 30 per month. The first appellate Court observed that under the rules of the Society, particularly Rule 7, he was entitled to one month's notice, and therefore it awarded him damages in the sum of Rs. 100/-
The learned Single Judge held that the case of a temporary employee was no better than that of a permanent employee and that if the services of permanent employees could be dispensed with after one month's notice the plaintiff could not claim any better terms. The rules do not apply to such a case, and there was nothing to show that in the contract of employment the rules were included by reference or that the plaintiff had accepted them. This was a contract for a period certain, viz., till 31st March 1951.
The plaintiff was ever ready and willing to perform his part of the contract, and his services could not, therefore, be terminated before the expiry of that period unless the employee was at fault. This has been laid down in Turner v. Goldsmith, 1391-1 QB 544 (A). The same rule of law has been laid down by a Division Bench of the Madras High Court reported in Sundram Chettiar v. Chockalingam Chettiar, 1938-1 Mad LJ 857: (AIR 1938 Mad 672) (B). In dealing with the law on the subject Leach C. J. observed as follows: The learned trial Judge disallowed the applicant's salary for 10 1/2 months on the ground that the respondent was entitled to dismiss the appellant when he found that his business was not proving profitable. This is an erroneous view of the law. The respondent had entered into a contract with the appellant under which the appellant was to serve him in Madras for a period of theree years certain, and the appellant was always 'ready and willing to carry out his duties.
The real reason why the respondent with the appellant's services after a, little over two years was that he found he could get another agent at a lower salary. Where a person has agreed to employ another he is not entitled to put an end to the employment simply because he finds his business is not proving as profitable as he anticipated or because he finds that he can get somebody to perform the duties at a smaller salary.
If the contract provides for termination of employment by notice the employer can lawfully terminate the employment on giving the required notice. In a case like the present where the employment was for a definite period the employer is bound to pay the stipulated salary, unless he shows that the discharged servant had an opportunity of other employment, but refused to avail himself of it. In other words, the principle that a person must do what he can to mitigate damages, applies to a contract of service just as it applies to an ordinary commercial contract.'
5. We respectfully follow the dictum laid down. In the present case we have been unable to see how Rule 7 could be applied to the present plaintiff. The rules were not made applicable to him by the contract; nor can they be made applicable to him in terms. The learned counsel for the appellant cited two cases of the Privy Council, Twentsche Overseas Trading Co., Ltd. v. Uganda Sugar Factory, AIR 1945 PC 144 CO, and'pragdas Mathurdas v. Jeewanlal (1929) Ltd AIR 1948 PC 217 (D). They are cases of frustration, and do not apply here.
6. We accordingly set aside the judgment and decree of the two appellate Courts below and restore that of the trial Court. The respondent shall bear the costs of this appeal.