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Kalyanasundara Nadar and anr. Vs. Muthuraman - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1969)1MLJ317
AppellantKalyanasundara Nadar and anr.
RespondentMuthuraman
Cases ReferredIn Tanjore Permanent Bank Ltd. v. Munuswami I.L.R.
Excerpt:
- m. natesan, j.1. the manager and correspondent of the asoka vidyalayam higher elementary school, kachinavilai, and the school represented by him are appellants, in this second appeal. the appeal arises out of an action by the respondent herein,, a higher grade trained teacher and permanent employee of the school whose services-were terminated by the management. the respondent as plaintiff averred in his plaint that the order terminating his services was illegal, unjust and arbitrary and prayed inter alia for a declaration that he continued or must be deemed to continue as the assistant teacher of the school, for his reinstatement as a teacher and for a money decree directing the management to pay him the salary and allowances attached to the post which had accrued. the learned district.....
Judgment:

M. Natesan, J.

1. The manager and correspondent of the Asoka Vidyalayam Higher Elementary School, Kachinavilai, and the school represented by him are appellants, in this second appeal. The appeal arises out of an action by the respondent herein,, a higher grade trained teacher and permanent employee of the school whose services-were terminated by the management. The respondent as plaintiff averred in his plaint that the order terminating his services was illegal, unjust and arbitrary and prayed inter alia for a declaration that he continued or must be deemed to continue as the assistant teacher of the school, for his reinstatement as a teacher and for a money decree directing the management to pay him the salary and allowances attached to the post which had accrued. The learned District Munsif, Servaikuntam, decreed the suit as prayed for giving a declaration that the plaintiff continues or must be deemed to continue as an assistant teacher of the school and consequently a mandatory injunction directing the defendants to reinstate the plaintiff as an assistant teacher. He assessed the damages for the period from 1st October, 1959, to 1st June, 1961, at the sum of Rs. 1,472 and granted a money decree for the said amount. On appeal the learned Subordinate Judge of Tuticorin confirmed the decree.

2. The main defence for the management on the merits of the case was, that the plaintiff voluntarily left the service of his own accord on 30th September, 1959, and that the management under the special circumstances of the case even desisted from insisting on a three months' notice in accordance with the rules which govern the service. It was stated that having got himself relieved from the service at his own request, he again approached the defendants for re-employment and when this was turned down he came out with a case that his services were terminated wrongfully. The service register of the plaintiff contains an entry that the plaintiff was relieved on 30th September, 1959, at his own request. The plaintiff's signature may be seen on the page and may be related to the entry. The plaintiff's case with reference to this entry and his signature thereon was, that his signature was obtained with reference to an entry on the same page in an earlier column relating to an increment awarded to him, and that the entry relating to termination of his services at his. own request was a subsequent interpolation, behind his back. It is his case that a fraud has been played upon him by the management. The plaintiff was employed in the school as a permanent teacher on 1st June, 1957. According to him when on 30th September, 1959, he was informed by the new headmaster of the school that his services had been terminated with that date and that he need not attend, the school from and after 1st October, 1959, he immediately sent an appeal to the District Educational Officer, Tirunelveli South, complaining of the improper termination of his services. While the District Educational Officer dismissed the plaintiff's appeal on further appeal the Divisional Inspector of Schools, Madurai, set aside the order of the District Educational Officer and directed the management to reinstate the plaintiff. As the defendants in spite of the order of the Divisional Inspector of Schools passed on 17th September, 1960, failed to reinstate the plaintiff, after repeated demands he filed the suit out of which this second appeal arises on 23rd June, 1960.

3. The plaintiff does not rest his case on the order of the Divisional Inspector of Schools directing the management to reinstate him. It is conceded on both sides that the order is purely directory and cannot be enforced by a suit. As pointed out by Anantanarayanan, J., (as he then was) in Ramaswami v. State of Madras : (1962)1MLJ269 , the only penalty the management will have to face by not giving effect to the order, may be the withdrawal of recognition or of financial aid by the State. On the merits the Courts below have accepted the plaintiff's case and held that the broad probabilities and the subsequent conduct of the parties as borne out by the immediate step the plaintiff had taken to seek redress clearly established that the plaintiff had affixed his signature only in proof of his knowledge of one event namely, the grant of an increment with effect from 1st June, 1959 and not in acknowledgment of correctness of the entry relating to termination of his services with effect from the evening of 30th September, 1959. This finding is purely one of fact and is not open to challenge in second appeal. It is manifest that the management has played a fraud on the teacher. The management had the custody of his service register and behind his back having taken his signature for one purpose, they had interpolated in the register that he was relieved from his service at his own request. The effect of the entry would not be to terminate his service. Fraud vitiates the action and it must be deemed to be non est and a nullity. But the entry is only evidence of the termination. There is evidence that the plaintiff was refused permission to attend to his service on 1st October, 1959. Even on 30th September, 1959 he had been informed that his services were terminated from that date. The plaint proceeds on the basis that there was an illegal and arbitrary termination of his service on 30th September, 1959. On this state of facts, the contention now urged before me in second appeal on behalf of the appellants is that the relationship between the parties being contractual, there could be no mandatory injunction for reinstatement nor could there be a declaration granted that the plaintiff continues in the service of the defendants. It is contended that at the most, if the termination of his services was wrongful, the plaintiff would be entitled to claim damages, and that on the facts of the case he would be entitled to just three months' salary as damages. The argument in this form had been addressed even in the Courts below but it was overruled. The Courts below would hold that in the circumstances the purported termination is no termination at all.

4. It is not contended for the plaintiff that there are statutory rules or regulations governing the employment in question. It is not argued that the relationship bet-between the parties is not contractual. The service register does contain certain rules in the matter of termination of service. Rule (iii) provides that no teacher shall ordinarily leave a school without giving three months' notice to the management and no management shall dispense with the services of a teacher without giving three months' notice to him except for adequate disciplinary reasons approved by the District Educational Officer. In Elizebeth Rajagopalan v. Athiya Ghani (Second Appeal No. 1713 of 1962), Ramamurti J., points out that having regard to the fact that practically all the schools receive financial aid in the form of grants from the State Government, the management with a view to secure and maintain grants from the Government, would be following Rule 13 of rules relating to Elementary Schools whenever they take action against any member of the staff. The learned Judge further points out that in the service registers of the members of the staff who joined service later, Rule 13 framed by the Government has been specifically incorporated, and that there is no justification for making any distinction between one school and another in the matter of tenure and conditions of service of the members of the staff. The learned Judge referring to these aspects of the matter observes that it is quite possible to draw the inference that the school authorities and the members of the staff impliedly accepted Rule 13 as governing the conditions of service. However, no final opinion was given in the matter and the learned Judge proceeded to consider the case on the condition of servie set forth in the register. The condition therein considered is identical with the condition found in the service register of the present plaintiff. On the facts of the case it was held that the stage had not been reached when it could be postulated in terms and conditions of service that the services had been validly terminated for adequate disciplinary reasons approved by the District Educational Officer. There is no question in the present case that the services of the plaintiff had not been terminated. As already stated the plaint proceeds on the basis of a termination the contention, however, being that the termination is illegal and non est. If the service is contractual and there are no statutory regulations which would govern the service, any termination not in accordance with the contract would be a breach of contract. Whether there has been termination or not is a matter for inference from circumstances. If there is repudiation of the contract between the parties, it would be a case of wrongful termination of the service and the person arggrieved in such a case would be entitled only to damages. We may in the present case ignore the fraudulent entry as non est. But the management has refused to continue the teacher in service on the agreed terms of the employment. This amounts to a wrongful dismissal and repudiation of the contract. In Rubel Bronze and Metal Company and Vos, In re L.R. (1918) KB 315, 323, it is stated:

Dismissal may be effected by conduct as well as words. A man may dismiss his servant if he refuses by word or conduct to allow the servant to fulfil his contract of employment. The refusal must of course be substantial in the sense that it is not a mere repudiation of some minor rights of the servant or of non-vital provisions of the contract of employment. The question is ever one of degree. If the conduct of the employer amounts to a basic refusal to continue the servant on the agreed terms of the employment, then there is at once a wrongful dismissal and a repudiation of the contract.

In the instant case the parties have proceeded on the basis of termination of service and the validity of the decree now impugned must be examined on that assumption. Clearly the management in this case on 30th September, 1959, repudiated the contract of service and forbade the teacher from continuing his service. It is their case that he voluntarily got himself relieved of the post. That has been found against. But the fact remains that the management treated the services of the plaintiff as terminated, and so informed the plaintiff. There was a de facto termination of his services, he was excluded from taking his place among the staff and prevented from working as a teacher. True the exclusion was wrongful a clear case of wrongful termination of services.

5. The question is whether in such a case there could be a declaration and a decree for reinstatement as now provided. For the appellants reliance is placed on S. R. Tewari v. District Board, Agra : (1964)ILLJ1SC , 1682, where it is said:

Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well-recognised exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the industrial law jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker, whom he does not desire to employ, is recognised. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by statute even if by, making the declaration the body is compelled to do something which it does not desire to do....

It must be pointed out that the powers of a statutory body are always subject to the statute which has constituted it, and must be exercised consistently with the statute and the Courts have, in appropriate cases, the power to declare on action of the body illegal or ultra vires, even if the action relates to determination of employment of a servant.

It is not the case that there is any statutory or constitutional service guarantee in the instant case. The relationship between the plaintiff and the management is purely contractual. The educational rules which may govern the service of a teacher had been repeatedly held to be administrative in character and not enforceable statutorily : See Sampoornam v. The Divisional Inspector of Schools W.P. No. 1063 of 1952 and Gunabushanam v. Manager and Correspondent W.P. No. 111 of 1960. The plaintiff did not occupy any special position, which made the relationship other than contractual, and industrial labour law has no application.

6. Whenever there is termination of services a distinction has been drawn between cases where the relationship between the master and servant is governed by contractual obligations and cases where the relationship is governed by statutory obligation. The remedies of an aggrieved party would vary as the breach is of the one or the other. The distinction is one on principles. In the case of breach of contractual obligations a party may either treat the contract as broken and sue for damages or may refuse to accept the repudiation of the contractual obligations as a breach discharging the contract, treat the contract as alive for performance and sue for specific performance of it. But the law must permit specific performances of the contract. Contracts are not always specifically enforceable. For instance in a case of employment between master and servant Section 21 (b) of the Specific Relief Act would make the remedy by way of specific performance of the contract unavailable. In such cases the remedy would be only damages. But where an employment is governed by statutory obligations and terminable only in the manner provided by the statute, there could be no valid or effective termination of the contract, unless the procedure prescribed by the statute is complied with by the party intending to terminate the contract. The contract would otherwise, in law, continue to subsist between the parties. The action which terminated the contract not being in accordance with the statute would be null and void. They are cases of ultra vires acts properly so called. In such a case the servant may be entitled at the discretion of the Court to a declaration that the termination is null and void, and that he continues in the employment of the master.

7. In Dr. S. Dutt v. University of Delhi : [1959]1SCR1236 , the respondent before the Supreme Court, 'the University of Delhi, terminated the services of the appellant who was a Professor of Chemistry in that University. There was an award in the matter and the validity of the award came up for consideration before the Supreme Court. With reference to the provision in the award the High Court took the view that the contract of service between the appellant and the respondent was a contract of personal service, that, the award had the effect of specifically enforcing such contract of personal service, and that, therefore, it offended Section 21 (b) of the Specific Relief Act. Before the, Supreme Court it was urged for the appellant that the declaration that the appellant continued in service under the university inspite of his dismissal by the latter provided in the award was a declaration which the law permitted to be made, and that, therefore, there was no error on the face of the award as looked upon by the High Court. Reliance was placed for the appellant on the decision of the Judicial Committee in High Commissioner for India v. I.M. Lall (1948) F.C.R. 44 : L.R. 75 IndAp 225 : (1948) F.L.J. 23 : (1948) 2 M.L.J. 55, where the Judicial Committee had in fact made such declaration. Repelling the argument of the appellant that such declaration would be valid, the Supreme Court said (at page 1054):

That Lal's case (1948) F.C.R. 44 : L.R. 75 IndAp 225 : (1948) F.L.J. 23 : (1948) 2 M.L.J. 55, was not a case based on a contract of personal service. Indeed the contract of the respondent in that case provided that he service was to continue during the pleasure of His Majesty, His Heirs and Successors, to be signified under the hand of the Secretary of State for India '. The respondent had been dismissed by an order made under the hand of the Secretary of State for India, and as he was liable to be dismissed at the pleasure of the Crown, he could base no complaint against his dismissal on the contract of service and did not, in fact, do so. He founded this suit on the claims that his dismissal by the Crown from the Indian Civil Service of which he was a member, was void and of no effect as certain mandatory provisions of the Government of India Act, 1935, had not been complied with. The Judicial Committee accepted this claim and thereupon made the declaration that the purported dismissal of the respondent was void and inoperative and he remained a member of the Service at the date of the institution of his suit. The declaration did not enforce a contract of personal service but proceeded on the basis that the dismissal could only be effected in terms of the statute and as that had not been done, it was a nullity, from which the result followed that the respondent had continued in service. All that the Judicial Committee did in this case was to make a declaration of a statutory invalidity of an act, which is a thing entirely different from enforcing a contract of personal service.

8. The aforesaid observations of the Supreme Court clearly show that it is only when termination of service is challenged on the ground that there is breach of statutory obligations and the action terminating the service as ultra vires, the suit cannot be said to be one for enforcing a contract of personal service. The Supreme Court in this case clearly brings out the distinction between a breach of contractual obligation and violation of a statutory obligation in terminating the services of an employee. Earlier their Lordships of the Supreme Court observed (at page 1054):

The award held that the appellant had been; dismissed wrongfully and mala fide. Now, it is not consequential to such a finding that the dismissal was of no-effect, for a wrongful and mala fide dismissal is none the less an effective dismissal though it may give rise to a claim in damages. The award, no doubt, also said that the dismissal of the appellant was ultra vires but as well be seen later, it did not thereby hold the act of dismissal to be a nullity and, therefore, of no effect.

9. In the instant case there can be no question of any ultra vires act or of the act of termination of service being a nullity. There is no statute prescribing and circumscribing the manner in which the services should be terminated by the management. In Vine v. National Dock Labour Board (1957) 2 W.L.R. 106, 112, 118, Viscount Kilmuir, L.C., said:

Here, the removal of the plaintiff's name from the register being, in law, a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which by statute, that status conferred on him.

In that case the plaintiff was a dock labourer employed in the reserve pool by the National Dock Labour Board, the defendants, in the case, under the scheme set up by the Dock Workers (Regulation of Employment) Order, 1947. The plaintiff's dismissal was held invalid, as the Local Dock Labour Board had no power under the scheme to delegate to a disciplinary committee their disciplinary powers given by clause 16 of the order. Lord Keth observed:

This is not a straightforward relationship of master and servant. Normally and apart from the intervention of statute, there would never be a nullity in, terminating an ordinary contract of master and servant. Dismissal might be in breach of contract and so unlawful but could only sound in damages.

In Barber v. Manchester Regional Hospital Board (1958) 1 W.L.R. 181, 196, referring to Vine v. Motional Dock Labour Board (1957) 2 W.L.R. 106, 112, 118, it was observed:

There the plaintiff was working under a statutory scheme of employment, and clearly in those circumstances all the Lords of Appeal who dealt with the case in the House of Lords took the view that it could not be dealt with as though it were an ordinary master and servant claim in which the rights of the parties : were regulated solely by contract. Here, despite the strong statutory flavour attaching to the plaintiff's contract, I have reached the conclusion that in essence it was an ordinary contract between master and servant and nothing more. In those circumstances I feel bound to apply the general rule stated by Lord Keith and to reach the conclusion here that the plaintiff's only remedy against the board is the recovery of damages.

Reference may also be made to Francis v. Kuala Lumpur Councillors (1962) 1 W.L.R. 1411, 1417. A.P. 266, a decision of the Privy Council, where Lord Morris observed:

In their Lordship's view, when there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principles of law that the Courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the Court. In their Lordship's view there are no circumstances in the present case which would make it either just or proper to make such a declaration.

The special circumstance which may permit of a declaration as seen from the case law is either the violation of statutory rules and regulations in the matter of termination or Constitutional provisions. In Ridge v. Baldwin L.R. (1964) A.C. 40, 65, a case of dismissal of a chief constable by the Watch Committee, it was said:

The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence : it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not full within this class because a chief constable is not the servant of the watch committee or indeed of anyone else.

In Vidyodaya University v. Silva (1964) 3 All E.R. 865 (P.C.), a case from Ceylon the Privy Council again restated the principle with reference to a University professor, quoting the above passage in Ridge v. Baldwin L.R. (1964) A.C. 40, 65. In support of his position learned Counsel for the appellants cited also Mohanakrishniah Naidu v. National Bank of India : (1954)ILLJ136Mad , Krishna Rao v. Anjaneyulu (1953) 1 M.L.J. 781 : A.I.R. 1954 Mad, G. T. M. Committee v. Narasaiah (1965)1 An.W.R. 351 : A.I.R. 1965, Surendra Nath v. I. A. Corporation : AIR1966Cal272 , Tata Chemicals Ltd. v. Kailash : (1965)ILLJ54Guj and Ram Babu v. Divisional Manager : AIR1961All502 , In the last case referred to above, it is observed:

In other words, the general law of master and servant to the effect that the servant is at the pleasure of the master will stand in every case except in those where the same has been abrogated either by a statutory provision or by special contract. In the case of Government servants to whom Article 311 of the Constitution is applicable and in those cases where the provisions of the Industrial Disputes Act are applicable the general law that a servant is at the pleasure of the master stands abrogated to the extent to which the provisions of the Constitution or the Industrial Disputes Act provide.

The petitioner's case as I have already said above cannot be governed by the provisions of the Constitution and Article 311 would not apply to his case. It is also clear that the provisions of the Industrial Disputes Act will not apply to his case and it is equally clear that neither there is any statutory provision nor a contract which curtails, modifies or takes away the power of the Corporation to dismiss the petitioner at pleasure and the petitioner cannot claim for himself a tenure of ' good behaviour.' For these reasons I am of the opinion that no writ of mandamus can be issued in the circumstances of the present case.

In S.R. Tewari v. District Board, Agra : (1964)ILLJ1SC , 1683, the Supreme Court referred to this case Ram Babu v. Divisional Manager : AIR1961All502 , with the following observations:

In Ram Babu Rathaur's case : AIR1961All502 , the Court had to consider the question whether an employee of the Life Insurance Corporation whose employment was terminated could claim a writ of mandamus restoring him to the service of the Corporation, or a writ of certiorari quashing the proceeding of the Corporation. The Corporation is an autonomous body and is not a department of the State, and the relation between the Corporation and its employees is governed by contract, and no statutory obligation is imposed upon the Corporation in that behalf. The Court was therefore right in holding that the relationship between the employee and the Corporation had to be determined in the absence of any statutory provision or a special contract, by the general law of master and servant.

In view of the aforesaid observations of the Supreme Court on Ram Babu Rathaur's case : AIR1961All502 , there can be the least hesitation in holding that in the present case the plaintiff can have neither a declaration that he continues in the service of the school nor an order for reinstatement in service. No decision contra has been placed before me for the plaintiff. Learned Counsel for the plaintiff-respondent referred to the decision of this Court in Sarangapani v. K. H. S. E. Society : (1957)2MLJ24 The decision is by a Division Bench. But the question now under consideration was not the subject-matter of any discussion. In that case the management of a school terminated the services of a teacher and the teacher preferred an appeal to the Director of Public Instruction under clause 10 of the agreement between him and the school authorities. The Director of Public Instruction passed an order holding that the order terminating the services of the teacher was null and void and that the teacher must be reinstated in service forthwith. Rajagopalan, J., before whom the writ petition came in the first instance held that the order of the Director of Public Instruction was vitiated, and on appeal his view of the learned Judge was not accepted. The Division Bench restored the order of the Director of Public Instruction. Whether the order of Director of Public Instruction directing reinstatement of the teacher in the school service could be enforced by the teacher against the management and whether a civil Court can pass such an order was not the subject of consideration in the case. This Court merely restored the order of the Director of Public Instruction as not vitiated by any irregularity or illegality. It did not issue any writ of mand mus; nor did it grant any declaration. There was no enforceable order of reinstatement in that case by the civil Court. Therefore, the decision cannot be an authority for the contention that there could be specific enforcement of a simple contract of employment. The other two decisions cited on behalf of the plaintiff. The Divisional Inspector of Schools v. Ramachandran S.A. No. 309 of 1965, and Elizabeth Rajagopal v. Athiya Gani S.A. No. 1713 of 1962, also will not help the plaintiff. In neither of the cases did the question come up for consideration. In the former case the learned Judge Ramamurti, J., particularly points out that in that case it was not claimed that the authorities of the school wanted to put an end to the services of the plaintiff on any ground whatever other than age, and that the controversy related only to the correct date of birth of the plaintiff. The declaration originally sought for in that case was the correct date of birth of the teacher and at the time when the plaintiff instituted the suit, he was still in service. There was no question of termination of the services of the plaintiff at that time and the proposition the learned Judge had to consider was whether the plaintiff could claim a mere declaration to establish the correct date of birth without further consequential relief. In the latter case Elizabeth Rajagopal v. Athiya Gani S.A. No. 1713 of 1962 no doubt there was a declaration by the trial Court, that the plaintiff continued in service of the school. But mandatory injunction for reinstatement in service was not granted. There was only a decree for money, being the salary due to the plaintiff. On appeal by the management, the suit was dismissed in its entirety and this Court in second appeal restored the decree of the trial Court. I have already referred to the basis of the decision in that case. The charges levelled against the plaintiff were not investigated and the learned Judge observed that the matter was still sub judice though the District Judge had expressed his opinion against the teacher and in favour of the management when he did not have all the materials before him. There was no dispute on the quantum of damages and the learned Judge referred to the money portion of the claim as damages. In that case this. Court only restored the decision of the trial Court. There was no discussion whether a declaratory decree as now claimed could be given. The points raised before me in the form were not raised before the learned Judge in that case.

10. From the above discussion it follows that the provisions in the decree declaring that the plaintiff continues as a teacher in the school and directing the defendants to reinstate the plaintiff as an assistant teacher in the school have to go. To retain these provisions is to specifically enforce the contract of service. There can, however, be a declaration that the plaintiff's services were wrongfully terminated. It follows from the finding, that the plaintiff was not relieved from the service on his own request and that the termination of the plaintiff's services was not in accordance with the contract. It is this finding which makes the management liable for breach of contract of service, entitling the plaintiff to damages. The declaration that would go against law in a case like the present, is a declaration that the termination of service is a nullity, and the plaintiff continued in service notwithstanding a purported termination.

11. The management questions also the money portion of the decree. But here the decree for Rs. 1,472 has not been awarded merely as arrears of salary and allowances accrued, but as damages. The appellants would contend that the plaintiff at the most would be entitled to three months salary. But in this case the plaintiff's service register was not handed over to him immediately. Under Rule 13 (1) (i) of the rules relating to elementary schools every teacher working in a school under private management except schools under Railway management shall possess a. Teacher's Service Register issued by the District Educational Officer. For the plaintiff to join in any other school he would have to produce his service register.. The plaintiff got back his service register only in February, 1961. His services-had been terminated on 30th September, 1959 in the most fraudulent manner behind his back, the management taking advantage of their custody of the service register which is the property of the plaintiff. The Educational Department had allowed the appeal of the Teacher and directed his reinstatement. The teacher might have normally expected his being re-entertained by the same school, as otherwise the school would incur the penalty of forfeiting the State grant. As stated already the teacher's certificate was received by the plaintiff only in February, 1961, about the close of the school year and normally it would take some time for him to find employment in some other school. In Beckham v. Drake (1849) 2 H.L.C. 579, 606, 608, Erle, J., observed:

The measure of damages....is obtained by considering what is the usual rate of wages for the employment here contracted for, and what time would be lost before a similar employment could be obtained.

In Tanjore Permanent Bank Ltd. v. Munuswami I.L.R. (1964) 1 Mad. 434, 435, Veeraswami, J., set out the principles for assessment of damages in the case of wrongful dismissal between master and servant thus:

Where an employment is contractual and the terms of which provide or do not provide for the manner of termination of service, the principles for assessing damages to be awarded for wrongful dismissal are not in doubt. The basis of damages in such cases is breach of contract of service either because the stipulated notice was not given for termination or in the process of termination, the requisite procedure has not been followed. Where the contract provides for the manner of termination, as for instance, a month's notice or a month's pay in lieu of such notice, normally that will be the measure of damages. But in addition to that, on account of the fact that the employee has been wrongfully dismissed from service the time that may probably be taken and the reasonable chance of getting re-employment should be kept in view. Where the contract did not provide for the manner of termination a reasonable period of notice or pay in lieu of such notice would be a basis together with the additional factor I have mentioned for assessing damages. There may be exceptional cases where other circumstances may well enter into the computation of the quantum of damages, as for instance, employment in a specialised department in which case alternative employment will be difficult to get.

In the light of the above principles the sum of Rs. 1,472 awarded as damages for the period from 1st October, 1959 to 1st June, 1961, as the salary and allowances which the teacher would have received if he had continued in service cannot be said to be excessive. It may be that the appellate Court has regarded the amount as arrears of pay in the view it has taken that there was no termination of service at all. But ultimately the appellate Court has only confirmed the decree of the trial Court which as stated above has assessed the figure only as damages. It cannot be said that the trial Court erred on principle in assessing the damages at the said figure-It is in perfect accord with the principles found enunciated in decided cases.

12. In the result clause 3 of the decree of the trial Court confirmed by the appellate Court awarding the plaintiff a sum of Rs. 1,472 as damages will stand confirmed. Clauses 1 and 2 of the decree of the trial Court shall stand deleted. A declaration will be given that the plaintiff's services were not terminated by the defendants rightly and in accordance with law. The second appeal is allowed to the extent above indicated and dismissed in other respects. On the question of costs, having regard to the disreputable conduct of the management the plaintiff would be entitled to his full costs throughout. No leave.


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