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Prafulla Ranjan Sarkar Vs. Hindusthan Building Society Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberSuit No. 542 of 1957
Reported inAIR1960Cal214
ActsContract Act, 1872 - Section 73; ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rules 2 and 4
AppellantPrafulla Ranjan Sarkar
RespondentHindusthan Building Society Ltd.
Appellant AdvocateS.C. Sen, Adv.
Respondent AdvocateGouri Mitter, Adv.
DispositionSuit decreed
Cases ReferredRoper v. Johnson
- s.p. mitra, j.1. in this suit the plaintiffs case is that in 1948 he was employed by the defendant as its secretary at a salary of rs. 750/- per month on a confirmed basis. subsequently the defendant granted a car allowance to the plaintiff at the rate of rs. 100/- per month over and above the plaintiffs salary. before joining the defendant company the plaintiff was holding a responsible position under messrs. birla brothers ltd. the plaintiff left that service and joined the defendant solely on promises and assurances made by or on behalf of the defendant that the plaintiffs services under the defendant would be of a permanent nature continuing as long as the plaintiff remained in a fit state of health able to discharge the duties of his office satisfactorily. on 30-9-1954 the defendant.....

S.P. Mitra, J.

1. In this suit the plaintiffs case is that in 1948 he was employed by the defendant as its Secretary at a salary of Rs. 750/- per month on a confirmed basis. Subsequently the defendant granted a car allowance to the plaintiff at the rate of Rs. 100/- per month over and above the plaintiffs salary. Before joining the defendant company the plaintiff was holding a responsible position under Messrs. Birla Brothers Ltd. The plaintiff left that service and joined the defendant solely on promises and assurances made by or on behalf of the defendant that the plaintiffs services under the defendant would be of a permanent nature continuing as long as the plaintiff remained in a fit state of health able to discharge the duties of his office satisfactorily. On 30-9-1954 the defendant wrongfully terminated the plaintiff's service with effect from 1-10-1954 and refused to allow the plaintiff to remain in service under the defendant any longer. Due to the wrongful conduct of the defendant the plaintiff has suffered damages assessed at Rs. 20,000/- which the defendant has not paid. The plaintiff has claimed in this suit a decree for Rs. 20,000/-; alternatively, assessment of damages and decree for the sum so ascertained and costs.

2. The defence, inter alia, is that there wasno promise or assurance on behalf of the defendant that the plaintiff s services would be of a permanent nature or that his services would continue as long as he remained in a fit state of health. The services of the plaintiff were duly terminated by a notice dated 30-9-1954. It is denied that the plaintiff hassuffered any damages. In any event the damages claimed are exorbitant and excessive.

3. The following issues were raised:

1. Were any promises or assurances made or given on behalf of the defendant company that the plaintiffs service would be of a permanent nature as pleaded in paragraph 2 of the plaint? If so, what is the effect of such promises of assurances?

2. Was the termination of the plaintiff's service wrongful?

3. To what relief, if any, is the plaintiff entitled?

4. It is necessary in- the first instance to discuss the relevant portions of the evidence of Profulla Ranjaii Sarkar the plaintiff. He says that his brother Nalini Ranjan Sarkar who was the 'guiding spirit' of the Hindusthan Group of Companies died in January, 1933. Immediately after his death P.N. Talukdar the Special Director of the defendant who was also connected with the other concerns and his group started creating trouble and wanted to crush and victimise the brothers of Nalini Ranjan associated with these companies. Prafulla Ranjan's brother Promode Ranjan started criminal proceedings first before the Commissioner of Police and then before the Chief Presidency Magistrate. The persons accused of crime were P.N. Talukdar, N. N. Law both directors of the defendant, S.M. Basu a solicitor of this court and Amiya Chakravarty an accountant who has deposed before me in this suit. The petition of complaint disclosed certain facts which had nothing to do with the defendant company. It affected the defendant company in this way that the plaintiff was its Secretary and the plaintiff's nephew was in N.R. Sircar and Co. Ltd, & both the plaintiff and his nephew were dismissed. The plaintiff does not remember when the complaint was made to the police or when precisely the Chief Presidency Magistrate was moved The defendant's case is that complaint was made to the Police in October, 1953 and the proceedings before the Chief Presidency Magistrate started in December, 1953. Sometimes the plaintiff attended Court in connection with the proceedings, and also figured as a witness. One of the charges was forging of documents by the persons named above. The plaintiff went three or four times to the Magistrate's Court. He also made a statement to the Police who called at his residence.. There was a judicial enquiry before the matter was taken up by the Chief Presidency Magistrate. The enquiry was held by Mr. Shyam. The plaintiff gave evidence in the Judicial enquiry. He supported the case of forgery. Thereafter there were proceedings before the Chief Presidency Magistrate. The plaintiff went to the Court of the Chief Presidency Magistrate at times. There were also at or about that time civil cases instituted in the High Court. In these cases the fight was between the Sircars on the one hand and Talukdar and his group on the other. Occasionally the plaintiff attended the High Court in connection with these litigations. The plaintiff gave evidence in these civil suits against P. N. Talukdar, N. N. Law and others and was keenly interested. In fact he was one of the plaintiffs in a suit relating to the trust estate of the late Nalini Ranjan Sarkar. The Chief Presidency Magistrate refused to issue any summons with reference to the complaint made by Promode Ranjan Sarkar. This matter came up to the High Court and then was taken to the Supreme Court. The Supreme Court granted special leave to appeal against P.N. Talukdar and S.M. Basu. Then with some ulterior motive the application was settled and thereafter another complaint was filed by another brother of the plaintiff. The plaintiff cave evidence against the Talukdar Croup before his dismissal. The grievances of the Sarkars were not against all the Directors of the defendant company hut against Talukdar, Narendra Nath Law and Kartick Ch. Mullick. In the suit concerning the trust estate of the late Nalini Ranjan Sarkar one of the allegations was that two of the transfer deeds had been forged. Prafulla as I have said was one of the plaintiffs in this suit. According to these plaintiffs an agreement appointing P.N. Talukdar as Managing Director of N.R. Sarkar and Co. Ltd. had been forged. A transfer deed relating to the transfer of one thousand shares belonging to N.R. Sarkar and Co. Ltd. in i'avour of P.N. Talukdar had also been forged. P. N. Talukdar was responsible for this forgery. The suit was instituted before the plaintiff's dismissal. It is still pending. The plaintiff then said that his brother instituted a criminal case for forged transfer of one thousand shares before the plaintiff's dismissal. Then a civil suit was instituted after his dismissal in which he was one of the plaintiffs; and that civil suit is still pending. The suit realting to the trust estate was instituted about two or three months before his dismissal. The defendants in this suit are P.N. Talukdar, N. N. Law and Prafulla's brother Promode Ranjan Sarkar who were the three trustees. Nalini Ranjan created the trust and its subject matter was shares of the two companies N. R. Sarkar and Co. Ltd. and the Hindusthan Insurance Co.. Ltd. The beneficiaries were his brothers and nephew. According to Pratulla the trust deed was not lawfully executed and the plaintiffs in that suit have asked for the cancellation of the deed of trust, vide evidence of Prafulla Ranjan Sarkar (Questions 297 to 479). In questions 480 to 485 Pratulla Ranjan Sarkar has said that the criminal cases, 'the trust suit' a suit challenging a meeting of the Hindusthan Insurance Co. Ltd. and a suit regarding a meeting of the Board of Directors of the New Tea Co. Ltd. were all instituted before his dismissal. It is evident, therefore, that prior to the plaintiff's dismissal the relationship between the Sarkar group and the Talukdar group were extremely bitter.

5. A resolution was passed by the Board of Directors of the defendant company on 11-l-1949, regarding the appointment of the plaintiff. The resolution is as follows:

'Resolved that Mr. Prafulla Ranjan Sarkar be appointed Secretary of the Society on a salary of Rs. 750/- (Rupees Seven hundred and fifty) only per month and undertake such duties as may be assigned to him by the Managing Director'.

6. In paragraph 1 of the plaint it has been. stated that the plaintiff was employed on a confirmed basis. In paragraph 2 of the plaint it is alleged that the plaintiff left his previous employment and joined the defendant company solely on assurances and promises made by Or on behalf of the dependant that the plaintiff's services under the defendant would be of a permanent nature continuing as long as the plaintiff remained in a fit state of health, able to discharge the duties of his office satisfactorily. These allegations of the plaintiff are not boron out by the resolution of the Board of Directors set out above. It should be remembered that when the' resolution was passed, the plaintiffs brother Nalini Ranjan Sarkar who was the 'guiding spirit' of the Hindusthan Group of Companies was alive. On 30-9-1954 the Chairman of the defendant's Board of Directors gave notice to the plaintiff that his services under the defendant would stand terminated from 1-10-1954 and the plaintiff would be allowed a month's salary in lieu of notice. The plaintiff's first reaction to this notice can be found in his letter dated 8-10-1954 to the Chairman. In this letter the plaintiff has, no doubt, alleged that he was appointed on a permanent basis but the other terms of service alleged by him in the plaint have not been mentioned.

7.-8. Mr. Gouri Mitter learned counsel for the defendant first of all relied on the following passage in Halsbury's Laws of England, 3rd Edition, Vol. 25 page 480, Article 923:

'If a contract of hiring and service is a general hiring, that is to say, without limitation of time, there is a presumption that the hiring is for a year, whether the contract is oral or in writing. This presumption exists not only when the original contract was a general hiring, but also when at the expiration of a contract for a definite period of service, the service is continued under a second contract which is indefinite as to time.

A contract may remain a hiring for a year, even though it is subject to a provision giving either party liberty to determine it at the end of a less period than a year.

The presumption of a yearly hiring is capable of rebuttal, it is not an inflexible rule and must be considered in connection with the circumstances of each case'.

9. In McClelland v. North Ireland Health Services Board, 1957-2 All ER 129, Lord Goddard and Lord Evershed were of the view that a 'permanent and pension able' employment was a case of general fairing or employment terminable by reasonable notice. The opinions of Lord Tucker and Lord Keith of Avonholm were also in accord with this view. But the majority decision was that the appellant's employment had not been validly terminated because it was terminable only as provided in the 'September Conditions' which were exhaustive in that respect, and, accordingly, a power to terminate the employment by reasonable notice would not be implied. Clause 12 of these conditions provided that the Board could dismiss any officer for gross' misconduct or who was proved to be inefficient and unfit to merit continued employment. The appellant's employment was sought to be terminated on the ground of redundancy of staff and she was given six months' notice. The presumption of yearly hiring was applied in the case of Jackson v. Hayes Candy and Co. 1938-4 All ER 587. In Bimalacharan v. Trustees, Indian Museum, AIR 1930 Cal 404, Costello J. was of the opinion that the phrase 'substantive and permanent' was more descriptive of the nature and character of the appointment than indicative of the duration of that appointment.

9a. In his evidence the plaintiff has said that be was employed in 1948. He was taken in on a permanent basis so long as he would be able to work. In the defendant company there is no fixed age of superannuation. The average age for retirement is at least 60 years, if not more. The plaintiff was 45 or 46 years of age when he joined the defendant company. P.N. Talukdar informed the plaintiff that a resolution appointing the plaintiff, had been passed by the Board of Directors. But the plaintiff did not know what that resolution was. The plaintiff did not know whether the terms of his appointment had been correctly recorded in the Board's resolution. He discovered it when a copy of the resolution was sent to his solicitor (Qs. 2, 22. 51, 53, 69, 182, 183 and 213 to 216).

10. Mr. Mitter has urged that the plaintiff's oral evidence on his ignorance of the contents of the Board's Resolution relating to his appointment till his solicitor received a copy of it, should not be accepted by me. Having regard to the terms of the resolution the presumption of yearly employment should be applied to this case. The resolution was passed on 11-1-1949. The plaintiffs employment should, therefore, be treated as an employment from 11th of January to the 10th of January of the following year. His service was terminated from the 1st October 1954. He is therefore, entitled to his salaries for the months of October, November and December, 1954 and for ten days in January 1955.

11. I agree with Mr. Mitter that the terms of I the plaintiffs appointment are in the resolution of the Board, but I am unable to accept his arguments' on the applicability of the presumption of yearly hiring to the facts of this case. From Halsburys Laws of England, 3rd Edition, Vol. 25, Article 924 at page 481 it appears, that in the case of an agricultural kbourer, the fact that he serves for a year is strong presumptive evidence of a yearly hiring. In the case of servants generally, it seems that the fact that remuneration is a sum payable at the end of a year, or is a certain sum per annum simply, supports the presumption that a general hiring is. a hiring for a year, but the presumption may nevertheless be rebutted. The remuneration of the plaintiff in the instant case was not payable at the end of a year nor was it a certain sum per annum simply.

12. In De Stempel v. Dunkels, 1938-1 All ER 238, the plaintiff was employed by X a member, of a Diamond Corporation, under an agreement for a year beginning on 1-1-1928. The agreement provided: 'It is the intention of both parties to renew this agreement on expiry for a further period if mutually satisfactory terms can be arranged'. The plaintiff continued in X's employment until he was, given notice of dismissal on 19-11-1935 to take effect on 31-12-1935. It was held by the Court of Appeal that the contract was not a yearly hiring, and the plaintiff was entitled to reasonable notice. There had been therefore a breach of the contract of service. At page 247 Greer L. J. observes that

'The Rule with regard to an indefinite hiring, being, in the absence of a special agreement to the contrary a hiring for a year, arose out of the hiring. of agricultural labourers, which took place at the particular time in each year'.

13. In Fisher v. Dick and Co. Ltd., 1938-4 All ER 467, the plaintiff entered the employment of the defendant in 1933. The Managing Director of the defendant confirmed his appointment on the selling staff as and from the 1st Pecember 1933 at a commencing salary of 400 per annum plus out-of-pocket and travelling expenses. It was held, inter alia, that the contract of service was not an engagement for a year, but for an indefinite period, subject to reasonable notice. The plaintiff was a salesman specialist, and was not entitled to more than. 3 months notice. At page 469 Branson J. refers to-the opinion of Greer L. J. in the case cited above and observes that --

'If I may respectfully say so they appear tome to state the common sense of the matter. When you are dealing with agreements which are not agreements between agricultural labourers and their employers, there is not the same kind of reason for treating the agreement as a yearly hiring, but rather the contrary'.

14. 1938-4 All ER 587 cited by Mr. Gouri Mitter was the case of an employee engaged by a letter at a specified yearly salary and commission. The commission was not payable except for a complete year. Dm Parcq, L. J. sitting as an additional Judge held that the terms of the contract especially that relating to commission were those of a yearly hiring and the contract was only determinate, therefore, at the end of complete year of service. The Editorial Note in this case is interesting. It is as follows:

'The judgments in 1938-1 All ER 238 have been considered in two recent cases apart from the present one, Vernon v. Findlay, 1938-4 All ER 311 and 1938-4 All ER 467. The question in all these cases is how far there is still a presumption of yearly hiring. In times gone by the circumstances in which persons were hired made this presumption a very usual one but in modern times it would seem that the presumption is not often available. The present case, in which the presumption has been applied, is, therefore, to be regarded as an exception to the general rule.'

Upon consideration of the authorities on this subject I entirely agree with this Editorial Note. I am of opinion that the presumption of yearly hiring cannot and should not be applied to the plaintiff in this case.

15. Mr. S.C. Sen, learned counsel for the plaintiff, has contended that his client is entitled to damages for wrongful dismissal till the date of superannuation. He has relied on the judgment of Datta J. in. Suit No. 1957 of 1955 Santosh Kumar Banerjee v. Howrah Amta Light Rly. In this case the defendant No. 1 appointed the plaintiff who is an Engineer on 26-1-1935 on probation for six months on a salary of Rs. 300/- per month. In January 11941 the plaintiff was confirmed by the Martin's Light Railways as an Engineer under a five years' contract with effect from 1-10-1940 on a salary of Rs. 450/- per month with an annual increment of Rs. 25/- up to Rs. 500/-. In 1942 the plaintiff's service was lent to the Government of India. On 7-11-1947 the Government of India released him at the instance of the Railway defendants. On 7-11-1947 the plaintiff's service agreement was renewed for another five years with the Martin's Light Railways as District Engineer on a commencing salary of Rs. 850/- in the scale of 850-50-1000. On 16-1-1951 the plaintiff was appointed to officiate as Chief Engineer. On 18-1-1951 the plaintiff was placed in the grade of 700-50-1200. On 20-1-1952 the plaintiff was confirmed as Chief Engineer, Martin's Light Railways on Rs. 1600/- per month and was placed in the grade of 1600-50-1800 1600-50-1800 with effect from 1-2-1952. There were various disputes and differences between the plaintiff and his employers and on 20-10-1954 the defendant Railways terminated the plaintiffs services and offered three months' salary in lieu of notice. Datta J., was of the view that the word 'Permanent' indicated the period or duration o service. It is in the absence of any stipulation or age of superannuation a service for life. Reliance was placed by his Lordship on the observations of Greer L. J. in Salt v. Power Plant Co. Ltd., 1936-3 All ER 322. In that case the plaintiff was employed by the defendant upon terms of a letter dated December 24 1925 which provided that the engagment would be for a minimum of three years, subject to the defendants' right to cancel the agreement in case of wilful default. The letter continued:

'the Company shall have the right to terminate the agreement after the expiration of the above mentioned period by giving six months' notice in writing prior to December 31, and in the absence of such notice the engagement to remain in force as a permanent one.'

The defendants gave the plaintiff 6 months' notice, to expire on December 31, 1936. The plaintiff brought an action for wrongful dismissal. It was held that in the absence of notice to determine the employment at end of three years ending December 31, 1928, the plaintiff's engagement was to 'be for his life and there had been a breach of the agreement. The form of the engagement, therefore, was that there was a fixed period and then a further year in which notice might be given and thereafter the engagement was to be permanent. A distinction was drawn between the second and third periods. The only distinction possible was that the third or indefinite period was not to be subject to termination by notice. That is why Lord Justice Greer has observed that

'This is a case of a man who had, according to my view, for an engagement which was to last for life, or at any rate for the joint lives of himself and the Company, but I think for his life, because I think there are authorities to the effect that if a Company winds up, that is a dismissal of the servants, and they can then prove for damages and get. their dividend, whatever it may happen to be.'

16. Datta, J. gave damages to the plaintiff up-to the age of retirement which was claimed in the suit.

17. It is evident that the facts before Datta, J. were entirely different from the facts in the present case. Here as in Salt's case, 1936-3 All ER 322, there was no defined temporary period of service which. could be terminated by notice within a further fixed period of time to be followed by an engagement to, remain in force as a permanent one. It is relevant to cite in this connection the following passage in Halsbury's Laws of England, 3rd Edition, Vol. 25,. page 490, Article 946:

'It seems that the fact that the employment offered to and accepted by an employee is described as permanent employment does not in itself normally create a promise of life employment or disentitle the employers from terminating the employee's contract of service on reasonable notice. A contract for permanent employment will, however, be considered as a contract for employment for life if the terms of the contract are such as to render inevitable the conclusion that a lifetime employment was intended.''

18. The resolution of the Board of Directors-of the defendant Company in the instant case passed on the llth January 1949 appointing the plaintiff as its Secretary, does not, in my opinion, lead to the Inevitable conclusion that a lifetime employment was, intended. References may also be usefully made to the observations of Lord Goddard and Lord Ever-shed in McClelland's case, 1957-2 All ER 129 that a 'permanent and pension able' employment is an instance of general hiring or employment terminable by reasonable notice. I am, therefore, unable to accept the contention of Mr. Sen that the plaintiff was entitled to damages at least to the age of superannuation as in Santosh Kumar Banerjee's case.

19. The point that now arises for consideration,, is the period of reasonable notice the plaintiff was entitled to. Mr. Gouri Mitter for the defendant referred me to Halsbury's Laws of England, 3rd Edition, Vol. 25, page 490, Article 945 which is as follows:

'If no custom or stipulation as to notice exists, and if the contract of service is not one which can be regarded as a yearly hiring, the service is terminable by reasonable notice ...........'

20. From the footnotes under this Article it appears that a General Sales Manager and a Controller of Cinema were entitled to six month's notice. In Prabhu Lal v. District Board, Agra : AIR1938All276 , a Secretary of the Board was awarded salary for three months as adequate compensation for wrongful dismissal. On the facts of the present case Mr. Mitter has submitted that the plaintiff might have been entitled to 6 months' notice. Mr. Sen on the other hand has relied on the case of Savage v. British India Steam Navigation Co. Ltd. (1930) 46 T.L.R. 294 in which a ship's Chief Officer was held to be entitled to 12 months' notice and contended that the plaintiff in this case was also entitled to 12 months' notice. Amiya Charan Chakraburtty, accountant of the defendant in his evidence in Suit' No. 2999 of 1956, Hindusthan Building Society v. Prafulla Ranjan Sarkar which has also been heard by me. has stated in Qs. 227 to 229 that the plaintiff was the Chief Officer of the defendant company. He had to attend meetings of the Board of Directors. He also used to sell plots of land belonging to the-Company which was its only business. It is clear,. therefore, that so far as the defendant Company was concerned the plaintiff was occupying the highest position amongst its employees and was in charge and control of the entire business of the Company subject to the directions of the Board. But his position does not appear to me to be as high or important is that of the Chief Officer of a ship. Moreover, the kind of post held by the plaintiff might have been more easily available than the post of a ship's Chief Officer. In those circumstances to my mind it is reasonable to hold that the plaintiff was entitled to nine mouths' notice before his services were dispensed with provided that there was no justification for his summary dismissal.

21. Towards the end of his agument Mr. Gouri Mitter came to the question of justification for the plaintiff being summarily dismissed. On the 29th September 1954 resolution No. 2 passed by the Board of Directors (Ex. 4A) was as follows:

'A statement showing the working results of the Company for the year ended 31-7-54 was placed before the Board. The result for the year was found to be very unsatisfactory, the sale of land in the Society's land at New Alipore during the period being very poor. The Board noted with regret the gross negligence in duty of the Secretary of the Company, who was entrusted with the job.'

22. In the same meeting Resolution No. 4 (Ex. 1(2)) was also adopted and was as follows:

'In view of the gross negligence in duty of the Secretary of the Society, Sri Prafulla Ranjan Sarkar

Resolved that the services of the Secretary be terminated after 30th September 1954, that a month's salary in lieu of notice be paid to him, and he be asked to hand over the necessary papers and documents that are lying with him to Sri Amiya Charan Chakraburtty forthwith.

Resolved further that the Power of Attorney granted in favour of the Secretary, Sri Prafulla Ranjan Sarkar for identifying the signatures of the Directors of the Society in relation to the conveyance of land to the parties be cancelled forthwith.'

23. Mr. Gouri Mitter agrees that there is no positive evidence of gross negligence on the part of the Secretary but he has urged that although the ground of negligence has been taken in the Board's resolution, for the satisfaction of the Court, he can rely on a different ground for dismissal. It is not necessary that the Master, dismissing a servant for good cause, should state the ground for such dismissal; and, provided good ground existed in fact, it is immaterial whether or not it was known to the employer at the time of dismissal. Justification for dismissal can accordingly be shown by proof of facts ascertained subsequent to dismissal or on grounds differing from those alleged at the time, Halsbury's Laws of England, Vol. 25, Article 939, pages 487 and 488. Mr. Mitter has also relied on Articles 933 to 938 of this volume in support of his grounds for the plaintiff's dismissal. According to him summary dismissal was justified in this case owing to the bitter relationship between the plaintiff and the Board of Directors; the Board's lack of faith and confidence in the plaintiff and the plaintiffs conduct amounting to insubordination. His contention is that these grounds are apparent on the face of the plaintiffs admissions in his oral testimony I have already referred to. Amiya Charan Chakraburtty has also spoken about the litigations between the Sarkar group and the Talukdar group in his evidence.

24. As to negligence on the part of the plaintiff in the performance of his duties there is no pleading nor has any issue been raised. It is provided in Order 6 Rule 4 of the Code of Civil Procedure that in all cases in which the party pleading relied on any mis-representation, fraud, breach of trust, wilful default or ndue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in Appendix A, particulars (with dates and items if necessary) shall be stated in the pleading. It is well known that where negligence or contributory negligence is charged, full details must be given of the acts on which the party pleading relies as constituting negligence: see Mulla's Code of Civil Procedure, 12th Edition, page 581.

25. In the absence of pleading and the particulars, therefore, I am not called upon to go into question of negligence of the plaintiff alleged by Amiya Chakraburtty in his evidence. In any event looking into profits derived by the Company by sale of lands from the Balance-sheets published in 1952, 11953 and 1954 it does not clearly appear to me that the Company suffered losses due to the plaintiffs negligence.

26. I shall now deal with the other grounds advanced by Mr. Gouri Mitter. During the relevant period that in 1953 and 1954 the Members of the Board of Directors of the defendant Company were N. N. Law, Kartick Charan Mullick, Pramatha Nath Roy, S. C. Law, J.K. Mitter and P.N Talukdar. The litigations referred to were directed against P. N. Talukdar, N. N. Law and Kartick Charan Mullick. There is no evidence before me that the plaintiff had taken any steps against the defendant company or had damaged the company in any way, except that some of its documents were seized by the Police in connection with the criminal case. The Company as a juristic entity was the plaintiff's employer. The company has not been involved in any of these litigations. The three Directors named above qua Directors of the Company were not involved either. If the plaintiff had grievances against them, unconnected with the affairs of the defendant, I do not see why it was not open to the plaintiff to seek his remedies in appropriate Courts of Law. No evidence has been adduced to show that the plaintiff as Secretary of the Company, was guilty of misconduct or wilful disobedience or insubordination even with respect to any of these Directors.

27. Then again there is no indication of the grounds urged by Mr. Mitter in the written statement. All that is said in the written statement is that the plaintiff's services under the defendant company were terminated by a notice dated the 30th September 1954. The letter dated September 30, 1954 offers to the plaintiff a month's salary in lieu of notice. In Siddik Mahomed Shah v. Mt. Saran , Viscount Dunedin expressed the view that where a claim had never been made in the defence presented no amount of evidence could he looked into upon a plea which was never put forward. It is also strange that none of the directors of the defendant--some of which, I am told, are still living and are in Calcutta -- who attended the meeting of the Board which adopted the Resolution dismissing the plaintiff has come forward to tell the Court what precisely were the reasons, if any, for the plaintiffs dismissal. Amiya Charan Chakra-vartti is no substitute for the directors responsible for this action on the part of the defendant company.

28. It is abundantly clear that the plaintiffs allegations against three of the Directors in Civil as well as Criminal courts led to the plaintiffs summary dismissal. The manner in which Resolutions Nos. 2 and 4 being Exhibits 4A and 1-2 were adopted in the Board's meeting of the 29th September 1954 also supports these conclusions. The step taken by the company, therefore, smacks, in my opinion, of sheer vindictiveness. I am unable in the circumstances to hold that a summary dismissal of the plaintiff was justified.

29. The only other point in this suit urged before me, was that there was no evidence of mitigation of damages. In question 65 the plaintiff has said that he did not look for any other job alter his dismissal. In (Questions 530 to 636 he has said that he tried for a job elsewhere but ailed to secure a suitable one at his age. There are contradictions in his answers. But ray impression is that he did not property listen to question No. 65 put to him by his learned' counsel. I found him unmindful at that particular point of time. Mr. Gouri Mitter has urged that it is the duty of a dismissed employee to minimise the loss. He must use due diligence in endeavouring to obtain employment (See taisbury's Laws of England, 3rd Edition, Vol. 25, Article 995 p. 524). According to Mr. Mitter sufficient evidence of diligent efforts on the part of the plaintiff to secure another employment has not been adduced.

30. It is well settled that a servant's duty is to minimise the damages and for this purpose to seek and accept suitable employment but he is not expected to accept an engagement in a lower status, though it may be reasonable for him, in the state of the labour market, to accept a lower salary; and this will be taken into consideration in the calculation of k the damages: Mayne on Damages, llth Edition, page 293. It may be that at his age the plaintiff did not either find a job conferring on him the same status which he enjoyed in the defendant company or there was no possibility of his getting a similar employment.

31. But I need not enter into this discussion at all. The question what is reasonable for a plaintiff to do in mitigation of his damages is not question of law, but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant; Haisbury's Laws of England, 3rd Edition, Vol. 11, Article 476, page 290. In the footnotes under these observations have been cited the cases of Clayton-Greene v. De Courville, (1920) 36 ILR 790 at page 791 where the question was whether an actor should have mitigated the damages for breach of an agreement to take a leading part in a play by accepting the part of another character in the same play and Waterhouse v. H. Lange Bell and Co. Ltd., (1952) 1 LI Rep. 140 where damages were reduced because the plaintiff failed to mitigate by taking an alternative suitable employment.

32. On the burden of proof has been cited in these footnotes the case of James Finlay and Co. v. N. V. Kwik, (1928) 2 KB 604. In this case it was held that for breach of a contract for sale of goods I a plaintiffs duty to minimise damage was limited to doing what was reasonable in all the facts of the case, the onus of showing a breach of that duty being on the defendant. This decision of Wright J. was affirmed by the Court of Appeal (see 1929-1 K.B. 400).

33. I find these principles were applied by Leach C.J. (Laskshmana Rao J. agreeing with him) in Simdaram v. Chokalingam, AIR 1938 Mad 672. At page 674 Leach CJ. has observed that

'in a case like the present where the employment was for a definite period, the employer is hound to pay the stipulated salary unless he shows (hat the dischnrged servant had an opportunity of other employment but he refused to avail himself of it. In other words, the principle that a person must do what he can to mitigate damages applies to a contract of service just as it applies to an ordinary commercial contract.'

The learned Chief Justice then quoted the passage in Halsbury referred to above and went on to say that the authority for the statement that the burden of proof was upon the defendant was to be found in Roper v. Johnson, (1873) 8 C.P. 167 and (1928) 2 K.B. 604,

34. In the present case the defendant has adduced no evidence at all to show what the plaintiff should have done to mitigate the damages. Indeed questions Nos. 530 to 536 were put to the plaintiff in cross-examination but he was not pressed to give particulars of the efforts that he had made to find another job. In these circumstances it appears to me that the plaintiff is entitled to nine months' salary in lieu of notice aggregating to Rs. 6750/-without any deductions therefrom.

35. The answers to the issues are as follows:

1. From the Resolution of the Board of Directors of the defendant company passed on the llth January 1949 it appears that the plaintiff's employment as Secretary of the defendant, was for am indefinite period subject to reasonable notice.

2. Yes.

36. The result, therefore, is that there will be a decree for Rs. 6750/-; for interest on judgment @ 6 per cent per annum and for costs. Certified for the Counsel

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