1. The lower Appellate Court has held that defendants were entitled to insist on plaintiff paying the fine imposed on him before he could be allowed to return to work and to the enjoyment of the profits of his employment, such payment to be under protest and subject to plaintiff's right to recover the amount he paid by suit. The importance of this is with reference to plaintiff's claim to compensation for loss of earnings from the date of his exclusion from his employment until the date of his plaint.
2. The first answer to this claim is that defendants had no right to exclude plaintiff from his employment until the fine was paid. Defendants contend first that plaintiff was bound to mitigate the damage he would sustain by making all reasonable exertions, including paying the fine, to return to work or to obtain other work suitable to him. If this is based on the general law relating to damages we cannot accept it. For no case has been shown us, in which the reasonable exertion to be taken by the plaintiff included anything resembling the payment demanded here or anything outside work, such as the plaintiff had done or might reasonably be required to do. The alternative case put forward by defendants is that plaintiff's duty to pay his fine under protest in order to return to work rests on the custom of the temple. On the existence of such a custom we can find no discussion of evidence or proper finding in the lower Appellate Court's judgment. We must, therefore, call on it now to find on the evidence on record on the issue whether an Archaka is bound by the custom of the temple to pay under protest any -fine inflicted on him and the trustee is entitled to exclude him from the temple until he does so.
3. The next question raised in the appeal is whether the plaintiff, who was bound to make exertions to mitigate the damage he sustained, took adequate steps to do so by endeavouring to obtain other employment, which he could reasonably be expected to accept, within a reasonable time. It is argued here that an Archaka excluded from his own temple cannot be expected to take up other employment of any description. The lower Appellate Court must submit a finding on the ' question whether this is the case. Fresh, evidence may be taken.
4. Lastly in its paragraph 9 the lower Appellate Court refers to an admission of plaintiff that his earnings consisted in the voluntary offerings of devotees at the temple. But we cannot find any statement by him that such offerings were voluntary. The lower Appellate Court must now submit a finding whether the offerings, o which plaintiff's income consisted before his exclusion, were voluntary. Fresh evidence will be allowed on this question also.
5. Findings are due in six weeks. Seven days are allowed for objections.
6. In compliance with the order contained in the above judgment, the Temporary Subordinate Judge of Chingleput submitted the following
1. In this suit the Dharma-kartha of Sri Kamakshi Amman temple by his guardian and power-of attorney agent, 2nd defendant, fined an Archaka of the temple twice : on the first occasion the fine was 8 annas for taking a worshipper into a place prohibited by the 2nd defendant and on the second occasion Rs. 10 for using disrespectful language to him in a correspondence. The Archaka filed a suit to recover both these amounts as well as certain damages claimed by him for his being prevented from discharging his duties as Archaka. Inter alia the written statement of the trustee and the agent contained an averment to the effect that according to the custom of the temple if any servant is fined by the Dharmakartha, such servant must pay the fine in the first instance and then set up his grievance, if any, for redress in respect of such fine. Though in paragraph 4 such a contention was specifically raised, no issue was framed by the learned District Munsif but nevertheless in paragraph 8 of his judgment we find the following: 'The defendant's Pleader argued that plaintiff was not entitled to any damages because he would not have been prevented from performing his office in the temple if only he had paid the fines imposed on him and questioned their propriety afterwards; and he said it was the custom in the temple for its servants to pay the fines and then question the propriety of their imposition. No such, custom was proved before me and even if proved I should be slow in upholding such a custom, for the trustee may arbitrarily fine a temple servant a prohibitive amount and keep him out of his emoluments for ever, if such a custom, were to be recognised by the Courts of law.'
2 In the usual course the matter came on appeal before this Court and my predecessor in office dismissed the appeal so far as this contention went. The matter went up in second appeal before their Lordships of the High Court, who in their judgment framed an issue to the following effect:--' Whether an Archaka is bound by the custom of the Kamakshi Amman temple at Conjeeveram to pay under protest any fine inflicted on him and the trustee is entitled to exclude him from the temple, until he does so.' Their Lordships directed this Court to record a finding on this issue on the evidence on record. I am not, therefore, entitled to record any further evidence on this point. On a perusal of the oral and documentary evidence in the case I cannot find a single syllable either for or against the question raised in this issue, and it must be so because there was no specific issue framed in the first instance. In the absence of such evidence I can only record a finding in the negative on the issue remitted to me.
3. In respect of the two other issues on which I was directed to record findings after taking evidence adduced by the parties, the plaintiff re-examined himself and defendants examined b' other witnesses. Before I proceed to discuss and record findings on the issues remitted to me by their Lordships, I must refer to a contention put forth by defendants' Vakil in respect of the burden of proof in this case. According to him it is on the plaintiff and not on him and, therefore, he says that plaintiff must begin the case. I referred to the plaint and the written statement (in the original pleadings) and I do not find a single averment to cover the issue now under consideration. The unsuccessful party for the purpose of second appeal was the plaintiff and in the memorandum of appeal I do not see any contention on his behalf to cover the points now under consideration. I must, therefore, in determining the question of burden of proof be guided only by what their Lord-ships say in their judgment. The defendants' Vakil lays stress on the wording of the issues and argues that on the language used in the issues the burden must be said to be on the plaintiff.
4. In determining this question I am bound to see what their Lordships meant when remitting the issues to me. It is certainly clear that the argument which formed the basis for the issue, proceeded from the defendants' Vakil, because their Lordships say thus: 'The next question raised in the appeal is whether the plaintiff, who was bound to make exertions to mitigate the damage he sustained, took adequate steps--.' I say that this contention was put forth on behalf of defendants because the succeeding sentence contains the contention of plaintiff. The succeeding sentence runs thus: 'It is argued here that an Archaka excluded from his own temple cannot be expected to take up other employment of any description.' If this is the contention advanced on behalf of plaintiff in respect of the subject-matter of the issue, it is not at all proper to say that it was he who advanced the contention that other avocations are left open to him and that he must mike exertions to take advantage of such avocations to mitigate the damages he sustained. It is thus mathematically clear that the contention on which the particular issues were framed by their Lordships emanated from defendants and not from plaintiff. Such being the position, the sentence 'who was bound to make exertions to mitigate the damage he sustained' may be taken either as an observation of their Lordships or may be an argument advanced on behalf of the defendants. If it amounts to an observation on the part of their Lordships I will take it as a direction and proceed to further trial. But if it is an argument advanced on behalf of defendants, it is no business of mina to presume that plaintiff is bound to make exertions to mitigate the damage he sustained and it will be one of the duties of the parson alleging that statement to establish that ground also. Whatever it is, it will be impossible to ask a man who specifically pleaded before their Lordships that it is not possible for an Archaka excluded from his own temple to accept other employments elsewhere, to prove the issue remitted to me and as defendants according to my opinion are the individuals who are responsible for this issue, they are bound to begin the case and adduce evidence to enable me to record a finding on the issues. I, therefore, rule that it is defendants that mast begin and not plaintiff.
5. In conformity with such direction the defendants examined six new witnesses. There are no documents filed. Of the six witnesses examined before me four are worshippers in the temple, one an Archaka in office in the temple, and another a temple servant of Jambukeswaran temple in Trichinopoly. One other point must be made clear before I begin to discuss the evidence. The words 'other employment,' which the plaintiff can reasonably be expected to aooept, require further explanation. The defendants' Vakil seems to be of the impression that the language used in this issue would cover any kind of employment available in the world. At this stage defendants' Vakil interferes and adds consistent with Brahminhood,' yet he is the first man who suggested in the course of the cross examination the calling of trade for the plaintiff. If the calling of trade is consistent with Brahminhood in the term in which it is understood by Brahmins or by the class to which the parties belong, then all avocations, however degrading they may be in the social strata, may be said to be avocations for plaintiff to discharge when he is out of office as an Archaka. Certainly 'that is not the meaning with which the issue was framed and remitted to me for finding. The proper explanation for the words used in the issue is only to show other employments in the sphere of work in which plaintiff is placed and does not mean any kind of work available in the world. As plaintiff is an Archaka, the only way in which plaintiff can find other employment must be consistent with his Archaka duties or duties akin to such Archaka duties such as Paricharakam and other duties of a religious nature. We cannot travel beyond the region of religion to compel plaintiff to seek employment in branches of service which have no bearing of religion in it. So far as plaintiff is concerned, the witnesses examined on be half of defendants say that he is not a Purohit and cannot discharge the duties of Purohit. The defendants' Vakil in a way suggests that Archakas, being also ex officio Paricharakas may also try employment as a cook or a drawer of water. He is mistaken in his suggestion. It may be that because the Paricharaka duty in the temple is part and parcel of Archaka duty also and because such duty is done in the temples and for gods, no degrading element may be attached to it or nobody would regard a Paricharaka doing service in the temple as one doing degrading duties. Nevertheless that is not the standpoint in which T should view it. When the defendants ask plaintiff to do duty as cook or draw water elsewhere than in the temple, it will be certainly degrading to the status of an Archaka and nobody can compel a man to degrade himself because circumstances placed him in a miserable position. However miserable it may be, one I is not bound to lower himself in the social status and degrade himself in the eyes of others. So far as regards plaintiff's getting employment as Archaka elsewhere in Conjeeveram, unfortunately the plaint temple is an unique one where the Puja is according to the Smartha Vaideeka rituals as opposed to Agama rituals performed by Gurukkals. In other words, Smartha Brahmins like those who do Archaka duties in the plaint temple will not perform Puja in Siva temples where there is Lingam, and except the plaint temple there are no other temples in Conjeeveram where plaintiff can take service and do Puja. That line is, therefore, blocked for plaintiff. In his deposition he admitted that he knows no other craft except the Archaka work, that he is not possessed of wealth to start business as suggested by defendants' Vakil, nor has he got the necessary strength or stamina to undertake other duties even though they may be degrading.
For these reasons I find the 2nd issue for plaintiff and against defendants.
6. On the 3rd issue evidence was let in on behalf of defendants to show that the offerings are voluntary. They are certainly voluntary and can never amount to compulsory payments because the devotee, who when compelled to pay a certain sum for Archaka is entitled to keep back, if he is not inclined to pay that amount. Even if he has entered the temple nobody can compel him to remain there and perform Archaka at the stipulated rate.' There is evidence on behalf of defendants to show that the offerings for Archaka by the devotees range from 3 pies to 6 annas and one of the Archakas went to the length of saying that an Archaka is bound to perform Archana for nothing. If all Archakas are only of the same spirit as defendants' witness No. 6, there will be no trouble in Hindu temples. It is because they are as a class recalcitrant and are not amenable to reason and control and want to exercise their authority in their own way under the assumption that they cannot be replaced by others, all the trouble arises. As I have already remarked the only sense in which the question can be viewed is that it can only be a voluntary offering judged from the standpoint of the devotee : and as the question referred is one from the standpoint of the devotee, I find that the offerings in the plaint temple on the evidence recorded by me are only voluntary and not compulsory.
7. This second appeal came on for final hearing on the 17th and 28th of April 1919 after the return of the finding of the lower Appellate Court upon the issues referred by this Court for trial.
8. Messrs. L.A. Govindaragava Aiyar and L. Vencatragava Aiyar, for the Appellant.--On the law of master and servant the plaintiff was not bound to pay the fine under protest. The fine way be prohibitive and the employer cannot rely on its non-payment in mitigation of damages.
9. The finding is that there is no custom of the temple requiring that the fine should be paid under protest.
10. The finding also is that an Archaka cannot seek employment of a different nature.
11. As to the income of the Archaka plaintiff being derived from voluntary offerings, the damages can fairly be assessed. It is only where the amount is so uncertain as to be incapable of proof that plaintiff cannot claim damages, In fact the District Munsif has assessed the amount.
12. Messrs T.R. Ramaehandra Aiyar and M.N. Krishna Aiyar, for the Respondent.--Plaintiff took two years to lay his claim after his exclusion from employment. His laches disentitles him to any damages.
13. Voluntary payments cannot be the basis for an award of damages. Plaintiff's income consisted entirely of voluntary donations by worshippers. See Krishnasami v. Krishnama Charyar 5 M.P 313; Ramessur Mookerjee v. Ishan Chunder Mookerjee 10 W.R. 457 and the English cases Penn v. Spiers & Pond (1908) 1 K.B. 766 : 77 L.J.K.B. 542 : 98 L.T. 541 : 24 T.L.R. 354. Great Western Railway Co. v. Helps (1918) A.C. 14 : (1918) W.C. & I. Rep. 287 : 87 L.J.K.B. 230 : 118 L.T. 235 : 62 S.J. 120 : 34 T.L.R. 118 and Manubens v. Leon (1919) 1 K.B. 208 : 35 T.L.R. 94 : 63 S.J. 102 : 88 L.J.K B. 311.
14. No objection has been argued to the lower Appellate Court's finding on the first point remanded. We, therefore, hold that the plaintiff was under no obligation to pay the fine under protest and thus obtain the right to continue in service.
15. The question was next of plaintiff's duty to mitigate the damage to himself by making reasonable exertions to find other employment. The lower Appellate Court has held that he was not in default in this matter; and we accept its finding. It is now argued that his delay of over two years in suing involved a lack of diligence, which should mitigate or deprive him of his right to damages. Defendants, however, ejected him from his employment at their own risk and cannot now be heard to say that he should have taken steps to test the propriety of their conduct sooner see Raghunath Singh v. Achutanand 43 Ind. Cas. 374 : 3 P.L.W. 283.
16. There is lastly the finding that the offerings comprising the income for loss of which compensation is claimed are voluntary. In face of the evidence of 1st defendant's agent as defendants' witness No. 8: 'Devotees pay anything they like. If the Archkas decline to do Archana, they cannot be compelled to do it.... Archakas do not generally perform archanai without immediate payment or prospective advantage. Payments vary for the different kinds of archanai, ' no other conclusion is possible. We proceed on the footing that the payments to Archakas are voluntary, in the sense that their amount and the making of them at all is at the devotee's option.
17. On this finding it is argued for defendants that no compensation can be claimed by plaintiff for their loss, and there are no doubt some expressions in Indian decisions to support the view that voluntary payments cannot be the basis of an award of damages. But, read carefully, they seem to us to be reconilable with the result of the English authorities, to which we shall refer, that the question is only whether the amount of damages can be assessed, the voluntary character of the income being immaterial, if an assessment of its amount can be made. In Krishnasami v. Krishnama Charyar 5 M.P 313 it is no doubt said that 'damages cannot be given for the injury suffered by reason of the loss of voluntary offerings, because the injury is too remote and uncertain to be safely measured.' But in that case, the damages were claimed as accruing owing to the loss of prestige sustained by certain worshippers from the interruption of their performance of the temple services by persons, who attempted to join, as officiants, in their recital of the ritual and the consequent diminution of offerings to the former. The facts there differed from those before us, because there was no question of the exclusion of the plaintiffs from the right to perform services, for the performance of which they might be paid 'directly : and in any case the judgment proceeded: ' It is possible that other causes wholly unconnected with the wrong may have influenced the persons, who might have made such offerings, to withdraw their donations,' No such suggestion has been made here and no evidence consistent with it has been given. Again in Ramessur Mookerjee v. Ishan Chunder Mookerjee 10 W.R. 457 the Court held on facts, which are not fully stated, that no suit would lie to recover damages based on uncertain and merely voluntary payments, such as those in question. These are the strongest cases for defendants and they can be explained consistently with the English decisions next to be referred to, on the ground that the Court held that the income could not in fact be ascertained, its voluntary character being no doubt an obstacle in the way of ascertainmg it. Those English decisions are Penn v. Spiers & Pond (1908) 1 K.B. 766 : 77 L.J.K.B. 542 : 98 L.T. 541 : 24 T.L.R. 354; Great Western Railway Co. v. Helps (1918) A.C. 14 : (1918) W.C. & I. Rep. 287 : 87 L.J.K.B. 230 : 118 L.T. 235 : 62 S.J. 120 : 4 T.L.R. 118 and Manubens v. Leon (1919) 1 K.B. 208 : 35 T.L.R. 94 : 63 S.J. 102 : 88 L.J.K B. 311 The two first mentioned were no doubt decided with reference to the definition of earnings ' in the Workmen's Compensation act : but we have not been shown how that affects the principle involved, which is that, although part of the income in question consisted in 'tips,' which like the payments here to plaintiff were voluntary, it was, as it admittedly is here, in the contemplation of the parties that it would be received and that, as plaintiff was prevented by defendants' action from receiving it, he was entitled to claim it as damages.
18. The remaining question then is as to the amount of those damages, which are to be measured by the income plaintiff may reasonably have been expected to receive. The lower Appellate Court did not give a finding regarding them. But the matter was inquired into fully by the District Munsif at the trial; and, as the only evidence there, that of plaintiff, was not attacked in cross-examination, we think that we can act on it. Adopting the District Munsif's finding on this point, we allow the appeal, set aside the decree of the lower Appellate Court and restore that of the District Munsif with costs throughout.