Seshagiri Aiyar, J.
1. This is a suit for damages for wrongful dismissal The plaintiff was appointed co-editor of the Madras Times in January 1912 for a period of ten years. He was dismissed from service on the 21st of February 1914. The learned Judge held that the dismissal was right. The appeal raises questions relating to the validity of the plaintiff's appointment and the competency of the Directors to dismiss him. It is not necessary to deal with these questions. The appeal can be disposed of on a shorter ground.
2. Mr. C. P. Ramasami Aiyar, examined for the plaintiff, deposed thus:
By the Court.
You said that the plaintiff has not, to your knowledge, been employed elsewhere since leaving the Times?
Q.---Could he have obtained employment?
A.---I do not think so at all.
A.---He cannot be a co-editor or manager of a paper elsewhere from my knowledge of him. He has not the qualifications for it.
3. The plaintiff has not gone into the witness-box to swear to the contrary. We must, therefore, take it as established that the plaintiff should not have-been appointed as co-editor as he had no qualifications for the appointment. On this conclusion of fact, it is obvious that the plaintiff cannot recover damages from the defendant.
4. In Smith's 'Master and Servant,' it is pointed out, quoting Chitty on Pleadings, that a servant suing for wrongful dismissal will have to plead that ho was and is competent to discharge his duties, but that he was wrongfully dismissed. Willes, J., says in Harmer v. Cornelius (1858) 5 C.B. 236 that 'when a skilled labourer, artizan or artist is employed, there is on his part fin implied warranty that he is of skill treasonably competent to the task he undertakes.' The further question is where a person is employed who has not the required competency for the office, is his dismissal wrongful, because he has been turned out before the time fixed in the agreement. Mr. Rozario is right in his contention that there is nothing in the records of this case to warrant the suggestion of the learned Trial Judge that the plaintiff obtained his position under the Company in a manner which is unexplained and extremely suspicious.' It must be assumed for the sake of argument that both the parties acted honestly and that the plaintiff practised no deception. Even then, on the finding, as to want of capacity the dismissal must be upheld. Mr. Justice Willes in the case already quoted states that the failure to afford the requisite skill which had been expressly or impliedly promised is a breach of legal duty and, therefore, misconduct.' On this fiction of law it has been held that the dismissal of a servant would be right. Jervis, C. J., in Jenkins v. Betham (1855) 15 C.B. 168 : 1 Jur. 237. upheld the dismissal of an arbitrator for ignorance of the subject and incompetency to act in the business.' Lord Ellenborough in Shain v. Arnott 2 Stark. 256 held that 'there is no material difference between a servant who will not and a servant who cannot perform the duty for which he was hired.'
5. Applying the above principles, it is clear that the dismissal of the plaintiff by the company was justified. The learned Judge has, however, directed that the plaintiff to pay costs in the higher scale.' The case does not present any difficulties and noreasons are given why the plaintiff who was employed for a fixed period should be regarded as having abused the process of the Court in suing for damages for wrongful dismissal. The appeal must be dismissed with costs, but the decree of the learned Judge must be modified by directing that the ordinary costs of a single Counsel be paid by the plaintiff for the original trial.
Abdur Rahim, Offg. C.J.
6. I agree.