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Jatindra Nath Pal Vs. Corporation of Calcutta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal144
AppellantJatindra Nath Pal
RespondentCorporation of Calcutta
Cases ReferredLtd. v. Corporation of Calcutta
Excerpt:
- gentle, j.1. in this suit the plaintiff claims (1) damages for wrongful dismissal (2) the amount due to him which he alleges was about rs. 6500 on 1st october 1935 from the corporation provident fund. an amendment of the plaint, which i have allowed, in regard to the relief claimed also raises a claim for salary from 1st october 1935 until 14th july 1941 or until 18th february 1942. the claim for salary was originally pleaded in para. 11 of the plaint as damages for wrongful dismissal and not as salary simpliciter. in their written statement, the defendants admit that the plaintiff was dismissed from their service and allege that such dismissal was justified by reason of the misconduct of the plaintiff in the course of his service with them. they state that a sum of rs. 5727/13 is.....
Judgment:

Gentle, J.

1. In this suit the plaintiff claims (1) damages for wrongful dismissal (2) the amount due to him which he alleges was about Rs. 6500 on 1st October 1935 from the Corporation Provident Fund. An amendment of the plaint, which I have allowed, in regard to the relief claimed also raises a claim for salary from 1st October 1935 until 14th July 1941 or until 18th February 1942. The claim for salary was originally pleaded in para. 11 of the plaint as damages for wrongful dismissal and not as salary simpliciter. In their written statement, the defendants admit that the plaintiff was dismissed from their service and allege that such dismissal was justified by reason of the misconduct of the plaintiff in the course of his service with them. They state that a sum of Rs. 5727/13 is credited in the plaintiff's account of the Provident Fund of which Rs. 2869-5-0 represents the amount of his own contribution to the fund and which latter amount they were and are still willing to pay to him, and that it is the only sum payable to the plaintiff under the Provident Fund rules. It is also pleaded that the suit is not maintainable since notice was not given pursuant to Section 538, Calcutta Municipal Act, previous to its institution and also that the suit is barred by limitation. No payment into Court has been made.

2. The plaintiff entered the defendants' services in 1909 as an apprentice. In 1914 he became a permanent servant of the corporation. In 1935 he held the appointment of Water Works Sub-Inspector at a salary of Rs. 100 per month. On 1st April 1935 Garden Reach, in the suburbs of Calcutta, was created a municipality and it was separated from the Calcutta Corporation. The plaintiff's services were lent to the Garden Reach Municipality upon its separation and his salary was then paid by the municipality and not by the Calcutta Corporation. The plaintiff was suspended as from 1st October 1935 and he was purported to be dismissed from 29th May 1936, notification of dismissal being given to him on 10th June following. Prior to the creation of the Garden Reach Municipality this district was supplied with water from the corporation tube-wells at Kailasarak, the Dock and Hastings. It was carried in lorries, some being owned by the corporation and others were hired from contractors. Payment to contractors was made according to the number of journeys made by the lorries. The tube-wells were in charge of employees, called drivers, who kept records of each lorry journey in log books from which the measurement book was prepared each month. The measurement book was countersigned by an overseer and by the Superintendent of the Water Works. The contractors' bills were rendered each month and were checked with the measurement book. The tube-wells and their drivers were under the supervision of a Water Works Sub-Inspector and, up to 31st March 1935, the plaintiff was responsible for the Kailasarak tube-well with which this suit alone is concerned, and reference to which is solely required. The driver of this well was a man named Khudiram Chakravarti. It was the plaintiff's duty each day to visit the tube-well, write his initials at the foot of the previous day's entry, and each month to prepare the measurement book from Khudiram's log books. The correctness of the log book and the measurement book is manifestly required in order that the contractors should not be paid for more journeys than those which their lorries had made. If excess or fictitious journeys are entered in the log books and the measurement books it will follow that the corporation will pay for journeys which were not carried out. If the tube-well driver is in league with the contractors the excess journeys entered in the log books will result in illicit mutual profits, at the expense of the corporation, being received by them. The same result will follow if, in addition, the Water Works Sub-Inspector is party to the entry of fictitious journeys in the log and measurement books. The correctness of the plaintiff's measurement books and of his honesty and integrity have not been questioned in respect of the period prior to 1st April 1935.

3. In September 1935, during the time the plaintiff's services were lent to the Garden Reach Municipality, he prepared one measurement book for the months of April, May, June and July 1935 from the log books which were kept by Khudiram Chakravarti. The plaintiff says the logs for April and May, which were first given to him, contained excess or fictitious entries. These were corrected by Khudiram altering one log book and re-writing another book and the measurement book was prepared by the plaintiff from the corrected log books and also from two more log books in respect of June and July which he obtained later and, in addition, from the notes which he made from the entries for the last two days in a fifth log book which he left with Khudiram Chakravarti.

4. It is alleged that the plaintiff was responsible for tampering with the log books and concealing and falsification of the corporation records and that he attempted to cheat the defendants in connexion with the supply of water by lorries to the Garden Reach Municipality. The plaintiff was dismissed on these grounds and on which, in this suit, the defendants seek to justify their dismissal of him. In 1935 Mr. P. C. Gupta was the defendants' Superintendent of the Water Works Department. He is now their Executive Engineer. In the same year Mr. S. C. Chakravarti held the appointment of Executive Engineer and he retired from their service in November 1941.

5. It is common ground that from 1st April 1935, when the plaintiff's services were lent to Garden Reach, he was paid by this authority and not by the corporation, and Mr. S. C. Chakravarti eventually admitted that the plaintiff then ceased to be employed by the corporation. Nevertheless, both Mr. Gupta and Mr. Chakravarti say that, in addition to the work which he performed for Garden Reach, the plaintiff continued to carry out, and to be responsible for, the duties which, he performed for the corporation prior to his being detached to the municipality, including the preparation of the measurement book. On the other hand the plaintiff says when his services were lent to the municipality, he ceased to carry out his former duties for the corporation, he was solely responsible for the municipal work and it was no part of his duty to prepare the measurement book in September 1935. He said he did this at the express request made to him by Mr. Gupta about the end of July. Mr. Gupta denied he made any such request.

6. A few words are now required in regard to Khudiram Chakravarti, He is a cousin of Mr. S. C. Chakravarti, the Executive Engineer in 1935. He entered the defendants' employment in 1931. Prior to 1935 the plaintiff reported him on at least two occasions for dereliction of duty and he was reduced in grade and salary. On another occasion he was warned by the Chief Engineer, Water Works, for allowing men employed by the Lorry Contractors to be in the tube-well at the time when he was preparing the log book. He was dismissed at the same time as the plaintiff in 1935 in respect of the false entries in his log books. Some 18 months later he was re-employed by the corporation in the Workshop. The appointment was made by the Chief Engineer. Mr. S. C. Chakravarty admitted he was acting, or officiating, as Chief Engineer from 21st October 1937 to 4th December following, which period would be about 18 months after his cousin was dismissed and about the time he was re-employed. Mr. Chakravarti denied that he was in any way responsible for the re-employment and said he knew nothing about it until some time after it took place, and also that Khudiram Chakravarti did not seek his assistance in obtaining his re-engagement. Khudiram at first denied he approached Mr. Chakravarti regarding re-appointment, but later 'he said he told him he was a poor man and should be provided for, whereupon Mr. S. C. Chakravarti directed him to leave a petition with him.

7. In regard to the preparation of the measurement book, the effect of the evidence of Mr. S. C. Chakravarti, Mr. Gupta and Mr. Bhattacharya (who in 1935 was the Overseer of District No. 4 which includes the area in which Kailasarak tube-well is situated), is, that ordinarily the measurement book was prepared each month from the log book entries during the previous month. Mr. Chakravarti said if no measurement book was prepared for four months, he would have expected the matter to have been reported to him. No report was made that the plaintiff had failed in his duty to prepare the measurement book each month in regard to April to July 1935. Mr. Gupta said that at least on one occasion, prior to 1935, the plaintiff prepared a measurement book for two or more months but he added these books have been destroyed in accordance with the rule providing for destruction after three years. His evidence regarding the destruction of the measurement books was unsatisfactory and contradictory. At one time he said these books remained in the possession of the Sub-Inspector concerned, who destroyed them, and that they were not kept in the corporation office. Later he explained that they were in the Sub-Inspector's possession inasmuch as they were kept in the sectional office. Later still he said that since all these books were in the office, and that as Mr. Gupta was responsible for the office, then they must be in his possession. There is no record of the destruction of the measurement books.

8. Now, each entry in a log book should contain the registered number of the lorry and its times of arrival and departure from the tube-well. When supervising the tube-wells, plaintiff placed his initials, with the date, at the foot of each day's entries, on the day following that on which the entries were made. In this case there will be reference to six log books, all of which were written by Khudiram Chakravarti, in respect of the period 1st April to 31st July 1935, and it is convenient to give an explanation of each of these books. [After considering the evidence his Lordship proceeded.] I have not the slightest hesitation in accepting the plaintiff's' evidence which is corroborated and borne out by the facts and circumstances to which I have recently referred and discussed. I have also no hesitation in rejecting the evidence of the corporation's witnesses. The plaintiff was not responsible for, and did not supervise, the Kailasarak tube-well after 1st April 1935; the corporation did not appoint anyone to do his work when he was lent to the Garden Reach Municipality ; the preparation of the measurement books fell into arrear in consequence of no one being detailed to carry out the work which the plaintiff had performed prior to 1st April ; Gupta asked the plaintiff to do this and to initial the log books ; the plaintiff found that K. Chuckerbutty's log books contained fictitious entries and thereupon he obtained correct records from him from which he prepared the measurement book; he took the measurement book, with the log books, to Gupta and explained what he had discovered; K. Chuckerbutty was solely responsible for the fictitious entries and being present when Gupta was informed by the plaintiff of what had taken place and having been questioned by Bhattacharjee he attempted to throw the blame on to the plaintiff in the hope that he would escape the consequences of what he had done. I am perfectly satisfied that the plaintiff was entirely guiltless and has been the victim of invented circumstances which an examination reflects, and which should have been manifest to the corporation, had never existed in fact.

9. Learned Counsel on behalf of the Corporation, in his final address, contended that apart from the question of the charges made against the plaintiff, his dismissal was justified, and the plaintiff has no recourse against the defendants, on several other grounds. They are as follows: (1) That the plaintiff allowed K. Chuckerbutty to tamper with the log. books. Whilst the plaintiff obtained correct records in place of incorrect ones from K. Chuckrebutty, he at once informed Gupta of the position regarding the log books and his conduct was in no way improper and he did not give K. Chuckerbutty any permission to fabricate the books. Further, there is no plea in the written statement, as justification for the plaintiff's dismissal, that he permitted K. Chuckerbutty to fabricate or tamper with the books. A defendant must be bound by his pleading in a suit of this nature. (2) If it was not the plaintiff's duty to prepare the measurement book, he nevertheless did so and this act was therefore misconduct on his part. This argument needs no observation save to say that it is wholly untenable. It does not appear in the written statement as a justification for dismissal. (3) That the plaintiff did not immediately report the conduct of K. Chuckerbutty with regard to the fictitious entries which it was his duty to do. This is contrary to the facts, since the plaintiff gave Gupta full information at the proper time and without delay. This allegation is not pleaded in the written statement justifying dismissal. (4) It was argued that the Chief Executive Officer passed the orders for the plaintiff's, dismissal after consideration of the representations placed before him, and after the plaintiff had been given an opportunity of being heard. It was contended that the Chief Executive Officer acted in a quasi-judicial capacity and arrived at his decision after due consideration of the facts, including the plaintiff's explanation, and therefore the plaintiff has no remedy in law against the corporation. In support of this contention reference was made to vol. 4 of Halsbury's Laws of England p. 493 para. 912 regarding expulsion by the committee of a member of a club after being given an opportunity of being heard and Mahomed Kalimuddin v. A. B, Stewart ('20) 7 A.I.R. 1920 Cal. 223 was cited, which authority deals with the expulsion of a member of the Stock Exchange in circumstances similar to the expulsion of the member of a club. In my opinion, this argument is completely falacious. The plaintiff's claim for damages is for breach by the corporation of his contract for service. If the argument were correct, then no claim for damages for breach of contract would lie against a person in breach who defaulted in his obligation through some mistake or who thought that he was not doing wrong in repudiating the contract. (5) The plaintiff admitted that in August he initialled many of the log book entries between 1st April to 31st July at one and the same time and it was argued that this was tampering with and falsification of the corporation records and it justified his dismissal. This was done by the plaintiff at the request of his superior Mr. Gupta, the Superintendent of the Water Works department. The gravamen of the charges preferred against the plaintiff, for which he was dismissed and which are now sought to be a justification for his dismissal, is attempting to cheat the corporation; initialling all the entries in the month of August does not reflect such an attempt on his part. The Superintendent told the plaintiff to do it and he knew when it was done and in the circumstances of this case it was not misconduct justifying his dismissal. (6) The contention that Section 539, Calcutta Municipal Act, exempts the corporation from liability, having been argued, it was subsequently abandoned.

10. None of the matters which were raised, and which I have set out in (1) (2) (3) (4) and (5) above, are a defence to the plaintiff's claim for damages for wrongful dismissal, namely, a claim for breach of contract. I hold that the plaintiff did not tamper with the log books nor concealed nor falsified the corporation records nor attempted to cheat them. He was dismissed upon charges alleging these acts of misconduct and in respect of which the defendant corporation seek to justify his dismissal, in this suit. I hold that the corporation has failed to justify the dismissal and also that the dismissal was wrongful. At the time the plaintiff was purported to be dismissed in May 1936 he had served the corporation for 25 years during which period his honesty and integrity was unassailed. The result of the above findings will restore to him the character of which he was improperly and wrongly deprived. The date when the plaintiff was dismissed has now to be considered. The Chief Executive Officer passed his order for dismissal on 29th May 1935 and it was communicated to the plaintiff on 10th June. On behalf of the plaintiff it is contended that by reason of the matters which occurred with respect to the corporation and its Services Standing Committees there was no dismissal at all, or, if there was, it took place on 14th July 1941 when the Services Standing Committee No. 2 resolved that the plaintiff be paid his salary up to the date when he was dismissed and the question of his reinstatement be dropped.

11. In 1935 the corporation had delegated to the Chief Executive Officer the power to dismiss their officers and servants, subject to an appeal to the Services Standing Committee. Under Section 71 Sub-section (l), Calcutta Municipal Act, the corporation may each year delegate any of its powers to a Standing Committee and, by the proviso to the section direct that its decision shall be final and not subject to confirmation by the corporation. Up to and including the year 1939/40, which ended on 31st March 1940, the corporation delegated to the Services Standing Committee appeals from officers (in the plaintiff's category) against orders of dismissal, and directed that the decisions of the committee should be final. The plaintiff appealed to the committee against his dismissal by the Chief Executive Officer which appeal was dismissed on 21st January 1937. The plaintiff complained that he had not been given an opportunity of being heard by the committee and of presenting his position to them. The appeal was, in consequence, again considered by the Services Standing Committee on 5th March 1940, when it resolved that the appeal be allowed, the plaintiff be reinstated in his former post, and in the opinion of the committee he should be held to have been honourably acquitted.

12. After the last resolution was passed a change took place in the delegation of powers to standing committee. As from 1st April 1940 two Services Standing Committees were constituted. They were Services Standing Committee No. l and Services Standing Committee No. 2. The latter committee and its powers alone need reference. The power to dismiss was no longer in the hands of the Chief Executive Officer and there was in consequence no appeal from an order of dismissal by the above officer to the Services Standing Committee. Power was delegated to Services Standing Committee No. 2 to dismiss officers (of the plaintiff's category) subject to an appeal to the corporation. After the Services Standing Committee had passed its resolution on 5th March 1940, to which reference is made above, the corporation or its officers, took objection to its effectiveness on the ground that the corporation had not been present or consulted at the hearing of the appeal. Whereupon the matter of the plaintiff's dismissal, or of his appeal was placed before the Services Standing Committee No. 2 which had then come into existence having the powers delegated to it which I have outlined above. On 3rd June 1940 this committee resolved that after hearing the Executive Engineer the committee was of opinion that no case had been made out to alter the decision of 5th March 1940 which was consequently reaffirmed and the executives should give effect to it. At this period Services Standing Committee 2 had no power delegated to it to consider an appeal by a dismissed officer. The resolution passed on 3rd June 1940 by Services Standing Committee No. 2 was placed before the corporation which resolved, on 15th January 1941 that the matter be referred back. The reason for this action was that the corporation had been advised that since some other person had been appointed to fill the post which the plaintiff occupied in 1935 there was no budget provision to pay him and the Government auditor might surcharge the amount of the salary paid to the plaintiff if he was reinstated. On 14th July 1941 the matter again came before Services Standing Committee No. 2 which as previously stated, resolved that the plaintiff be paid up to the date he was dismissed and that his reinstatement be dropped. This resolution was confirmed by the corporation on 18th February 1942.

13. In the plaint it is contended that the resolution passed on 14th July 1941 was ultra vires, without jurisdiction and illegal and of no effect or, in the alternative, if valid, it finally dismissed the plaintiff. The plaintiff was suspended as from 1st October 1935 until the Chief Executive Officer passed his order for his dismissal on 29th May 1936, and the effect of the resolution of 14th July 1941 was to grant to him his pay at Rs. 100 per month during the above period which amounts to a sum of Rs. 800. Although the confirmed resolution by the corporation was passed about one and half years ago this payment has not yet been made. It is in the circumstances which I have set out above that the contention was made that the plaintiff has never been dismissed, or alternatively his dismissal took place on 14th July 1941 by the resolution of Services Standing Committee No. 2, or alternatively on 18th February 1942 when the corporation confirmed the resolution. This aspect of the suit is a troublesome one and there was no decision or authority cited to which reference can be made as a guide.

14. The power of the Chief Executive Officer to dismiss in May 1936, when he purported to dismiss the plaintiff, was subject to an appeal to the Services Standing Committee. This must mean that if the committee allowed the appeal against the dismissal by the Chief Executive Officer the order for dismissal would be vacated, and the effect being there was no dismissal and the officer remained in the service of the corporation. The resolution, at this period of the Services Standing Committee allowing an appeal against dismissal was final. The resolution the committee passed on 29th January 1937 dismissing the plaintiff's appeal can be ignored since it was realised that he should have been given an opportunity to be heard and since that had not been accorded the matter must be reconsidered. On 5th March 1940 the Services Standing Committee had authority to hear and to determine appeals as, at that time, this power was delegated to it and its decision was final. The plaintiff's appeal was allowed on 5th March 1940, and it follows his dismissal was thereby set aside and he was then in the position of ' never having been dismissed and, from 1st October 1935 when he was suspended up to the date of the resolution of the Services Standing Committee, he must be deemed to have remained in the service of the corporation. When the matter was referred to Services Standing Committee No. 2, in June 1940, this committee had no power to hear the appeal, it had power only to dismiss subject to an appeal to the corporation. Its decision, reflected by the resolution, was favourable to the plaintiff and it could have considered his case only from the aspect as to whether he should be dismissed. Therefore, the effect of the decision and of the resolution is that he was not dismissed. Consequently the plaintiff, still remained in the service of the corporation. The same position existed, regarding Services Standing Committee No. 2, when it passed its resolution on 14th July 1941, after the matter had been referred back to it by the corporation.' On this occasion the committee resolved that the plaintiff's reinstatement should be dropped and since, at that time, it had no power to hear an appeal but had only power to dismiss subject to an appeal to the corporation, the effect of the resolution, in my view, was to dismiss the plaintiff who up to that date must be deemed to have remained in the service of the corporation. Since there was no appeal from this resolution or this decision to the corporation, the dismissal became effective as from 14th July 1941. The plaintiff performed no duties during the period from 1st October 1935 to 14th July 1941. This was through no fault of his own, but by reason of the action of the corporation which prevented him from performing any duty.

15. In the plaint a claim is made for salary from 1st October 1935 to 14th July 1941. as damages for wrongful dismissal. An application was made to amend the plaint enabling this claim to be made, simpliciter, for salary. It was opposed by the learned Counsel for the defendants on the ground that if granted an entirely, new case would be presented. In para. 10 of the plaint it is alleged, inter alia, that the resolution of 14th July 1941 was the plaintiff's final dismissal. In para. 9 of the written statement this allegation in the plaint is denied and it is stated therein that the plaintiff was dismissed by the Chief Executive Officer on 29th May 1936. There was thus full notice to the defendants of the plaintiff's contention regarding the date when it was alleged he was finally dismissed. In these circumstances I considered the amendment which was sought was one of form and not of substance. It was relative only to the form of the relief claimed and not to the substance of the ease pleaded in the body of the plaint. I enquired of the learned Counsel on behalf of the defendants whether any amendment of the written statement was desired, and I was told that the matter would have to be considered and no decision could be made. In my view there is no amendment of the written statement required, the amendment of the plaint being merely as to the form of relief and not to the substance of the claim. Paragraph 9 of the written statement makes it quite clear to my mind that the allegation in para. 10 of the plaint, alleging that the dismissal did not finally take place until July 1941 was fully appreciated, and was dealt with in the defendant's pleading. I therefore allowed the plaint to be amended. In doing this I am satisfied that it fulfilled the requirements of the Civil Procedure Code to allow amendments so as to determine the real questions in controversy. It enabled justice between the parties to be rendered.

16. The plaintiff, in my view, having remained in the service of the corporation from 1st October 1935 until 14th July 1941, he is entitled to so much of his salary as he can claim in this suit. This must be limited to a period of three years prior to the date of the institution of the suit, which was filed on 20th January 1942. It is therefore limited from 21st January 1939 to 14th July 1941, the date of the plaintiff's dismissal, The salary was Rs. 100, per month and for that period it amounts, to Rs. 2974. The purported dismissal in May 1935 was wrongful as I have already held, and it must follow that it was equally so. in July 1941. It is conceded, on behalf of the plaintiff, that his services could have been terminated by one month's notice and therefore the damage which he is entitled to recover for his wrongful dismissal is an amount equivalent to one month wages, namely Rs. 100. This, of course, is in addition to the salary which he is entitled to recover.

17. The next matter requiring consideration is the claim to the provident fund credit. In the plaint the amount sought to be recovered is the sum in credit on 1st October 1935, which is estimated to be Rs. 6500. In the written statement it is admitted that the plaintiff's credit with the Corporation Provident Fund is Rs. 5727-13-0 of which Rs. 2869-5-0 is the total of his own contribution. The correctness of these amounts has not been disputed. The indebtedness of this corporation in respect of the smaller amount is admitted in the written statement. Rule 20 of the rules of the provident fund, in effect, provides that a subscriber forfeits all the sum to his credit except the amount of his own contribution when he is dismissed from service for dishonesty or serious misconduct. This rule cannot be applied to the plaintiff as his dismissal for dishonesty or serious misconduct was wrongful, and it was not contended that, if the plaintiff was wrongfully dismissed the provisions of Rule 20 should be applied. Rule 25 provides that on termination of service a subscriber's total sum to his credit in the account shall be payable to him. The plaintiff was therefore entitled to receive the whole amount of Rs. 5727-13-0.

18. On 18th July 1941 the plaintiff wrote to the Chief Executive Officer praying that he would order immediate payment to him of his Provident Fund. The defendants' Water Works Executive Officer replied that the question of payment of the provident fund could not be dealt with unless sanction of the corporation was obtained for the lending of his services to the Garden Reach Municipality from 1st April to 80th May 1935 which sanction could not be obtained until the terms of his appointment were accepted by the Chairman of the Municipality. This excuse for non-payment was made six years after the corporation had lent the plaintiff's services to the municipality. If it had not already done so and it was necessary to be done the corporation should have obtained the sanction years before they wrote the letter setting forth this as an excuse to avoid payment of any money to the plaintiff. It follows from the admission in the written statement that the defendants have withheld, and in my view deliberately and intentionally withheld, for at least seven years Rs. 2869-5-0 which is the amount the corporation admits to be due to the plaintiff, and which, on their own case, they should have paid to him not later than June 1936.

20. On behalf of the corporation, it was contended that the plaintiff's dismissal took place on 29th May 1936 and since the suit was not filed until 20th January 1942 the claim to the provident fund credit is barred by limitation, Article 115 being the relevant article. This article requires a suit to be filed within three years from the time a contract is broken in a claim for compensation for the breach of any contract express or implied not in writing registered and not specially provided for in any other article. The claim is for the amount of the credit and not for damages for breach of contract. Nevertheless it was contended that Article 115 applies and in support of the argument reference was made to Tricumdas Cooverjee Bhoja v. Gopinath Jiu Thakur ('16) 3 A.I.R. 1916 P. C. 182 and to Rai Sreenath Roy v. Rai Peari Mohan Roy ('17) 21 C. W. N. 479. Rule 4 (1) of the Provident Fund Rules, so far as is material, provides that

every municipal officer who is in receipt of a salary of not less than Rs. 25 a month shall join the fund as a compulsory subscriber and shall sign an agreement in the form annexed to the rules.

The form of agreement is to the effect that the signatory declares he has read the rules of the fund and he agrees to be bound by them. The plaintiff had no option, but was bound to become a compulsory subscriber to the fund and to make compulsory payments to it. In these circumstances, the ordinary position of parties to a contract, did not exist. There was no freedom either to enter or to refuse to enter into the agreement mentioned in Rule 4 or to become or to refuse to become a subscriber to the fund. Article 115 relates to a simple contract which in my view did not a rise and did not exist, and assuming there was any form of contract between the plaintiff and the corporation in regard to the Provident Fund, it was not a contract of the nature which Article 115 envisages. There is no other article which, it was contended, applies, and consequently, the residual Article 120, is that which is applicable. This prescribes a limitation 'period of six years from the date when the right to sue accrues in respect of suits for which no period of limitation is provided elsewhere in the schedule to the Limitation Act. Even if the dismissal had taken place on 29th May 1936 and the payment of the plaintiffs provident fund credit then became due under Rule 25, and consequently the right to sue arose, since the suit was instituted on 20th January 1942, it was within the statutory period. But since in my view the dismissal took place on 14th July 1941, the suit is not barred by limitation either under the provisions of Article 120 or of Article 115, assuming that the latter article is that which is relevant.

21. Since the plaintiff's dismissal for misconduct was wrongful, it follows that he is not subject to the forfeiture mentioned in Rule 20 and at the termination of his service the whole amount to his credit was payable to him under Rule 25, the amount of which, it is not disputed, is Rs. 5727-5-0, which sum he is entitled to recover. Even if the corporation had justified dismissal on the grounds which they plead in their written statement, and assuming his dismissal had taken place on 29th May 1936, nevertheless the plaintiff would have been entitled to the sum of Rs. 2869-5-0 which sum is admitted in the written statement by the corporation to be due. They say they had been, and still were at the date of the written statement, willing to pay that amount, but for some reason for which there is no explanation at all, the amount has not been paid and was not paid into Court.

22. I now propose to deal with the contention that the suit is not maintainable since notice, which Section 538, Calcutta Municipal Act, prescribes, was not given by the plaintiff to the corporation prior to the institution of the suit, The plaintiff's claims, before the amendment were for: (1) damages for wrongful dismissal; and (2) the sums to which he was entitled and which were to his credit in the Corporation Provident Fund. There is now the further claim, although the amount of it was covered by the claim for damages, namely, the amount of salary. It was common ground that notice was not given by the plaintiff prior to the proceedings being commenced. The relevant provisions of Section 588 (1) are as follows:

No suit shall be instituted against the corporation ... in respect of any act purporting to be done under this Act... until the expiration of one month next after written notice has been delivered or left at the municipal office.

23. The plaintiff was appointed pursuant to a power contained in Section 51 (2) of the Act. which enacts that:

The corporation may appoint such other officers or servants for such period respectively as they think fit and may fix their salaries and allowances.

24In argument reference was made to Section 17, Bengal General Clauses Act, 1899, which provides that:

Where, by any Bengal Act, a power to make any appointment is conferred, then, unless a different intention appears, the authority having power to make the appointment shall also have power to suspend or dismiss any person appointed by it in exercise of that power.

In argument it was contended that since the corporation has power to appoint under Section 51 (2), Municipal Act, and having this power the General Clauses Act provides that it shall also have power to dismiss, the power to dismiss is a power under the Municipal Act; therefore, the act of the corporation when dismissing the plaintiff, was done under the Municipal Act, and hence the present suit must fail as notice pursuant to Section 538 was not previously given. So far as the claim to the provident fund money is concerned, it was held in Corporation of Calcutta v. Asoke Kumar De : AIR1928Cal743 , that such a claim is not barred by failure to give notice under Section 538. Further reference to this claim in the suit is not required.

25. Section 538 does not require notice to be [given before every suit is instituted, but it only requires notice when the suit is in respect of an act purported to be done under the statute. It is therefore contemplated that some suits can be instituted, in respect of acts by the corporation which are not done under the statute, without notice having been given. The restriction in the statute is limited and is not universal. In Bradford Corporation v. Myers (1916) I.A.C. 242, the provisions and the effect of the English Public Authorities Protection Act, 1893, were considered. In the course of his speech Viscount Haldane observed at page 251 that:

In case of such a restriction of ordinary rights (English Public Authorities Protection Act) I think that the words used must not have more read into them than they express or of necessity imply.

26. Section 67, Municipal Act, provides that the corporation may enter into and perform all such contracts as they may consider necessary and expedient for carrying out the provisions of the Act, but in Bando & Co., Ltd. v. Corporation of Calcutta : AIR1939Cal614 , it was held that notice under Section 538 was not required before the institution of a suit for money alleged to be due from the corporation under several contracts for work done and materials supplied. So far as the claim for salary is concerned, the failure by the corporation to pay the salary clearly was not an act purporting to be done under the Act. The Act does not empower the corporation to refuse or to fail to pay its servants and officers their salaries.

27. In order to carry out the power given to it by Section 52 (2) to appoint officers, it made a contract with the plaintiff by which it agreed to pay him wages, and the authority to which reference has just been made clearly covers the case of a claim under a contract by a servant for salary and in such a ease notice is not required previous to the institution of the suit. Further Section 51 (2) of the Act does not make it mandatory on the corporation to engage officers and servants. When the plaintiff was appointed, the corporation exercised the permissive power which the section gives it. This section does not expressly give it power to dismiss. Such express power is given by Section 17, Bengal General Clauses Act, and not by the Municipal Act, and it was by reference to the Bengal General Clauses Act that it was argued that since this statute gives the power to dismiss, such power must be deemed to be a power given by the Municipal Act. The power to dismiss is expressly given by Section 17 of the Clauses Act and when the corporation dismissed the plaintiff, they were not doing an act which was purported to be done under an express power in the municipal statute. The Clauses Act provides that whilst the authority which is empowered by a Bengal statute to appoint shall also have power to dismiss, this provision in the Clauses Act does not make the power to dismiss, a power given under the Municipal Act.

28. In my view and for the reasons stated, the present suit is not barred by the absence of notice under Section 538, either in respect of the claim for damages for wrongful dismissal, for salary, or for the amount of the provident fund credit. The result is there will be a decree in favour of the plaintiff for Rs. 8801-13-0 being the aggregate of Rs. 2974 salary, Rs. 100 damages for wrongful dismissal and Rs. 5727-13-0 provident fund credit. I am unable to find there is any ground, either contractual or statutory, by which interest can be awarded prior to the date of the institution of the suit. The above sum will Carry interest at the rate of 6 per cent. per annum from 20th January 1942, when the suit was instituted, until to-day, and the aggregate of the judgment debt will bear interest at the same rate. There will be an order for the plaintiff's costs carrying a like rate of interest from taxation. Certified for two counsel.

29. I feel I must make a few observations before I conclude regarding the conduct of the corporation towards the plaintiff, assuming the correctness of their case, that the plaintiff was properly dismissed for dishonesty or misconduct on 29th May 1936. On that date he was entitled to be paid about Rs. 3000 from the provident fund to which sum, they admit, he was and is entitled. On 18th July 1941, he wrote asking for payment; his request was met with refusal upon the unwarranted ground that it could not be made as the corporation's sanction had not been obtained for its own act of lending his services to Garden Reach Municipality. This was at a time when he must have been seriously financially embarrassed. Although it is admitted in the written statement the amount of Rs. 3000 was due and it was stated that the corporation 'were and still are' willing to pay this sum, they have deliberately withheld, and deprived the plaintiff of the amount of his own contributions to the fund for over seven years. Further in July 1941, the Services Standing Committee resolved that the plaintiff should be paid his salary up to the date of his dismissal. The intention and the effect of the resolution was that a sum of Rs. 800 should be paid to him in respect of the period from 1st October 1935, when he was suspended, to 29th May 1936, when he was purported to be dismissed. This resolution was confirmed by the corporation on 18th January 1942, 18 months ago but no payment has yet been made. It should have been paid, at the latest, directly after the confirming resolution. I can only express a hope that the plaintiff will not have to wait any longer before he receives the sum which the committee and the corporation resolved should be paid. The treatment to which the plaintiff was subjected by the Calcutta Corporation was shabby in the extreme and is deserving of severe condemnation.


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