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G.H. Wittenbaker Vs. J.C. Galstaun and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in43Ind.Cas.11
AppellantG.H. Wittenbaker
RespondentJ.C. Galstaun and ors.
Cases ReferredTodd v. Kerrich
Excerpt:
master and servant - school master--notice to dispense with services--reasonable notice--one month's notice, whether reasonable--custom or usage--proof, mode of. - .....which they are entitled to do for insubordination, insobriety, neglect of duties, etc., on one month's notice.' in pursuance, of, that agreement, the plaintiff continued as a teacher at the armenian college until the month of july of last year. on, the 22nd of july of last year he received verbal notice to terminate his appointment, and on the 25th of july he received, a written notice to terminate his appointment as from the 1st of august. he was offered and paid one month's salary for the month of august, at the rate provided by the agreement, i.e., rs. 150. he continued to occupy his quarters and received board and lodging until the 24th of august last, without performing any duties of the college and he was tendered and accepted a sum of rs. 50 in lieu of the loss which he had.....
Judgment:

Greaves, J.

1. The plaintiff in this case claims from the defendants, who are two of the managers of the Armenian College, a sum of Rs. 1,490 by way, of damages under the circumstances to which I shall presently refer. On the 28th February 1912, the plaintiff was appointed as Mathematical and English Master at the Armenian College for a period of three years from the 1st of March 1912, at a salary of Rs. 159 a month with board and lodging. The agreement, which is contained in a resolution signed by three of the governors or managers of the College on the 5th of March 1912, contains one or two other matters to which I need not refer and it concludes with these words: 'The security to be paid him (that is, a certain sum to be retained from his salary) when the managers dispense with his services which they are entitled to do for insubordination, insobriety, neglect of duties, etc., on one month's notice.' In pursuance, of, that agreement, the plaintiff continued as a teacher at the Armenian College until the month of July of last year. On, the 22nd of July of last year he received verbal notice to terminate his appointment, and on the 25th of July he received, a written notice to terminate his appointment as from the 1st of August. He was offered and paid one month's salary for the month of August, at the rate provided by the agreement, i.e., Rs. 150. He continued to occupy his quarters and received board and lodging until the 24th of August last, without performing any duties of the College and he was tendered and accepted a sum of Rs. 50 in lieu of the loss which he had sustained by losing the board and lodging during the period, one month from the 1st of August. The plaintiff accepted the sums of Rs. 150 and Rs. 50 without prejudice to such rights as he had and which he claims in this suit. The plaintiff's claim of Rs. 1,420 is set forth in detail' in paragraph 16 of the plaint. His claim is for Rs. 1,690, i.e., Rs. 900 on account of salary in lieu of notice from the 1st of August 1916 to the end of January 1917 at the rate of Rs. 150 a month, and Rs. 790 for board and lodging, electric current and attendance from the 1st August 1916 to the end of January 1917 at the rate of Rs. 150 a month, and he gives the defendants credit for the sum of Rs. 200 received under the circumstances which I have already stated, making his total claim for Rs, 1,400, as already stated at the commencement of this judgment. The issues which have been agreed upon between the parties, are as follows: first, what notice is the plaintiff entitled to; secondly, to what damages, if any, is he entitled?

2. The defendants' case shortly put is this, they say that they are not liable to the plaintiff for any sum at all, that they were entitled to give him a month's notice as they did, and pay him a sum of Rs. 150 in respect of salary, and that the sum of Rs. 50, which they have paid him for the loss of board and lodging, compensates him for any loss which he has incurred in that respect, and they sought to show before me that there was a custom or usage in the profession of school-masters, both in Calcutta and in India, establishing that, apart from any definite agreement, the school-master was entitled to give and receive and the school authority was entitled to give and receive one month's notice to terminate the agreement.

3. The evidence that was given before me was to this effect. On behalf of the plaintiff Mr. Heramba Chandra Maitra, the Principal of the City College since 1905, stated that according to the custom of the City College and of the schools which he knew, the teacher or the governing body were entitled to terminate an engagement by giving notice to terminate it with the existing session. He said that in his own case he gave notice in April to terminate his employment and that the session ended in May and that that was good notice, and he said in cross-examination that the college must have accepted a month's notice from him and that if the college gave him notice in April to terminate in May, the notice would be sufficient as the session ended on the 31st of May. He also stated in cross-examination that he knew nothing of European schools. The plaintiff also gave evidence and, with regard to the question of the custom, he stated in cross-examination that he did not know of any custom in connection with the Armenian College that teachers should receive a month's notice, and be said: 'I am prepared to say that one month's notice is not given except in cases of misconduct.' He also gave evidence upon the question of damages for loss of board, and he said that at the college he occupied a large room and had the use of the school dining room, the school servants, electric lights and fan, and received board and lodging and had the use of a godown for a private servant of his own, and he estimates that he could not have got accommodation similar to this or suitable accommodation for his position under a less sum than Rs. 150, including therein all those things which I have mentioned. Then on behalf of the defendant, Mr. Joseph Samuel Zemin gave evidence. He is Professor of English literature at St. Paul's College in this city, and is also a Professor at the Central College in Cornwallis Street. He was previously, he stated, at the Doveton College for thirty-one years, part of the time as a junior master and part of the time as Head of the College, and he stated that while he was there, the services of masters were dispensed with other than for misconduct, and that in those cases a month's notice was given and received when there was no special contract or agreement. He gave one or two specific instances. He said: In Calcutta itself I have no personal knowledge of the length of notice that is usual in schools', and in cross-examination he said that with regard to the cases in which notice had been given that it was perfectly understood, when the persons came to the college, that one month's notice should be given to terminate their appointments. He said this was one of the terms of their employment. Then Mr. Kirkpatrick gave evidence. He spoke from 33 years experience in the Punjab, i.e., in Ludhiana, Amritsar, Delhi and Simla, and he said that so far as he was aware it was always the custom that one month's notice should be given and received. Then Mr. Moreno, the present Principal of the Armenian College, was called and he spoke from experience both of the Armenian College and as head of the C.M.S. School and as Principal of the Kidderpore Institution, and he stated that his understanding of the custom was that, in the absence of an agreement, a month's notice is usually given and accepted, and he stated that when he ceased to reside upon the college premises he accepted from the governors an allowance of Rs. 50 a month in lieu of board and lodging. Then we had the evidence of Mr. Galstaun, who is one of defendants, and of Mr. David, who is the other defendant, both of them being managers of the college at the present time, and they stated that in their experience it had been the custom among the masters of the Armenian College to take and receive one month's notice to terminate their engagements, and with regard to the sum of Rs. 50 which they tendered to the plaintiff in lieu of board and lodging, they stated that they arrived at this figure upon the basis of what it would cost to obtain suitable accommodation at the Young Men's Christian Association in Corporation Street. Mr. David stated that, for full board and lodging and the use of a separate room including electric light and fan and the general use of other rooms there the charge would be Rs. 35 a month, but that, of course, no profit was being made by the Society in respect of these charges.

4. Now it seems to me that there are three possible conclusions that one can arrive at in this case. First, you can say that the employment of the plaintiff having been continued after the expiration of his agreement, he must be treated as holding his post upon a yearly employment which could only be terminated with the end of the session, i.e., upon the 21st of December 1916, or if you take the holidays into account then on the 21st of January 1917; or, secondly, it is possible to say that he is entitled to a reasonable notice, i.e., either three months' notice or a term's notice, the first of which would have the effect of terminating his Employment at the end of October and the second on the 21st of December 1916. So far as I can gather, the school year ends on the 21st December, and there are three terms in the year,--one from the 21st of January to the 15th of May, another from the 15th of June to the 1st of October and another from the 11th October to the 21st of December. If he was entitled to three months' notice from the 1st of August his employment would come to an end at the end of October, and if he was entitled to a term's notice then his employment would come to an end either on the 21st of December or, as the plaintiff contends, on the 21st of January when the school holidays end; or, thirdly, there is the contention of the defendants that according to the custom, which is generally in vogue in Calcutta and in India, an employment of this kind can be terminated by a month's notice. Now, first of all, so far as the custom is concerned, I am not satisfied upon the evidence that any custom of a month's notice in an employment of this kind has been established to my satisfaction. The rule of proof of custom or usage can be stated shortly as follows:Usage is proved by the oral evidence of persons who become cognisant of its existence by reason of their occupation in the particular trade or business, and evidence establishing custom or usage must be clear, convincing and consistent, and to prove an usage in a particular trade it must be shown that the usage is consistent and reasonable and was universally acquiesced in and that everybody acknowledged it in the trade and knew of it, or might know of it if he took the pains to enquire. Now, of course, I have before me certain evidence as to the existence of this custom, but I am not satisfied that the evidence is sufficient to establish that this custom is so established as to be known to every one in the profession if he takes the pains to enquire, nor am I satisfied at all that one month's notice in the case of an employment of this kind is a reasonable notice, because as I pointed out in the course of the case the school terms beginning as they do, it might press very harshly upon a person employed as a teacher if he were given one month's notice, say, at the beginning of a term, as then he might have to wait two months and probably another month during the school holidays before a new term began at another school, i.e., unless he were fortunate enough to get a temporary position or some other kind of employment he might well find himself without any means of support during that period if a rule of a month's notice were established. Therefore, I cannot say that in a profession of this kind this is a reasonable notice Counsel for the plaintiff referred me to the case of Todd v. Kerrich (1852) 8 Ex. 151 : 22 L.J. Ex. 1 : 17 Jur. 119 : 20 L.T. (O.S.) 101 : 91 R.R. 403. In that case a lady had been employed as a governess for a term of one year at a salary of the a year. She was given notice to terminate her engagement before her term had expired and her employer offered her a month's salary in lieu of notice. She declined to accept this, and she sued for salary at the agreed rate for the balance of the year during which she had been engaged and she recovered the amount for which she sued, Against that there was an unsuccessful appeal and Chief Baron Pollock made this statement in his judgment: 'The position which the lady holds, the station which she occupies in the family, and the manner in which such a person is usually treated in society, certainly place her in a very different situation from that which mere menial and domestic servants hold. So far, therefore, as the question is to he treated as a matter of law a governess does not fall within that rule', and I do not see why that principle should not be applicable here.

5. Then I have got to consider the two other alternatives, i.e., whether having regard to the terms of the resolution of the 5th of March 1912, the employment must be deemed to have been continued as an yearly employment, which would terminate with the end of the year or of the school session. I am inclined to think that this is probably the true position in this case, and that after the plaintiff's agreement had expired, he stayed on with the Armenian College on an yearly agreement terminating when the school year terminated, i.e., on the 21st December or thereabouts in any year, but if I am not right in this, then I think that apart from any provision in the agreement itself, the plaintiff is entitled to a reasonable notice, which I should put at either three months' or a term's notice. So, I think, for the purposes of this case, it will be sufficient if I take it that the plaintiff was entitled to notice up to the 21st of December, whether under the agreement or as a reasonable notice. Before I come to deal with the actual sum to which the plaintiff is entitled, I think, I should say something with regard to the concluding words of his agreement. I think that the fact that one month's notice applies to a case of insubordination, insobriety, neglect of duties, etc., (the etc., of course, being ejusdem generis) negatives the idea of one month's notice if his service is dispensed with on other grounds. I think that this is an additional reason why notice to terminate his services should terminate with the end of the session itself, or that he should receive the reasonable notice such as I have described. Therefore, I think, the plaintiff is entitled to recover from the defendants salary at the rate of Es. 150 a month for the four months of August, September, October and November and for a further period of 21 days, i.e., up to the 21st December (I do not think he is entitled to include .the school holidays from the 21st of December to the 21st of January), i.e., under these two heads he will be entitled to a Sum of Rs. 705 calculated at the rate of Rs. 150 a month. Then so far as board and lodging are concerned, I feel some difficulty in this matter and apart from the case of Mr. Moreno himself, I should have certainly thought that the plaintiff was entitled to be recompensed for the loss, which he says he suffered, at a sum greater than Rs. 50 a month, and, of course, Mr. Moreno says that this was a mutual arrangement between himself and the managers. It may have been that other arrangements would have been arrived at if he had not been agreeable to the managers' proposal and had accepted the sum offered. I think a fair figure to allow is Rs. 75 a month calculated for the months of August, September, October and November and up to the 21st of December; this will roughly be Rs. 350, i.e., I think, the plaintiff is entitled to recover from the defendants the sum of Rs. 705 plus Rs. 350 less the sum of Rs. 200 already paid, that is to say, a total sum of Rs. 855.

6. I give judgment for, that sum to be paid to the plaintiff by the defendants, who do not as managers desire to dispute their liability if I am against them in the defence they raise, and the defendants must pay to the plaintiff his costs of the suit. As the suit has been brought in the High Court, I direct taxation under Rule 58, Chapter XXXVI, of the Rules of the Original Side of this Court.


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