9911796707
TMI Blog1967 (4) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... to reinstate the plaintiff as an assistant teacher. He assessed the damages for the period from 1st October, 1959, to 1st June, 1961, at the sum of ₹ 1,472 and granted a money decree for the said amount. On appeal the learned Subordinate Judge of Tuticorin confirmed the decree. 2. The main defence for the management on the merits of the case was, that the plaintiff voluntarily left the service of his own accord on 30th September, 1959, and that the management under the special circumstances of the case even desisted from insisting on a three months' notice in accordance with the rules which govern the service. It was stated that having got himself relieved from the service at his own request, he again approached the defendants for re-employment and when this was turned down he came out with a case that his services were terminated wrongfully. The service register of the plaintiff contains an entry that the plaintiff was relieved on 30th September, 1959, at his own request. The plaintiff's signature may be seen on the page and may be related to the entry. The plaintiff's case with reference to this entry and his signature thereon was, that his signature was obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge in second appeal. It is manifest that the management has played a fraud on the teacher. The management had the custody of his service register and behind his back having taken his signature for one purpose, they had interpolated in the register that he was relieved from his service at his own request. The effect of the entry would not be to terminate his service. Fraud vitiates the action and it must be deemed to be non est and a nullity. But the entry is only evidence of the termination. There is evidence that the plaintiff was refused permission to attend to his service on 1st October, 1959. Even on 30th September, 1959 he had been informed that his services were terminated from that date. The plaint proceeds on the basis that there was an illegal and arbitrary termination of his service on 30th September, 1959. On this state of facts, the contention now urged before me in second appeal on behalf of the appellants is that the relationship between the parties being contractual, there could be no mandatory injunction for reinstatement nor could there be a declaration granted that the plaintiff continues in the service of the defendants. It is contended that at the most, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een reached when it could be postulated in terms and conditions of service that the services had been validly terminated for adequate disciplinary reasons approved by the District Educational Officer. There is no question in the present case that the services of the plaintiff had not been terminated. As already stated the plaint proceeds on the basis of a termination the contention, however, being that the termination is illegal and non est. If the service is contractual and there are no statutory regulations which would govern the service, any termination not in accordance with the contract would be a breach of contract. Whether there has been termination or not is a matter for inference from circumstances. If there is repudiation of the contract between the parties, it would be a case of wrongful termination of the service and the person aggrieved in such a case would be entitled only to damages. We may in the present case ignore the fraudulent entry as non est. But the management has refused to continue the teacher in service on the agreed terms of the employment. This amounts to a wrongful dismissal and repudiation of the contract. In Rubel Bronze and Metal Company and Vos, In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by statute even if by, making the declaration the body is compelled to do something which it does not desire to do.... It must be pointed out that the powers of a statutory body are always subject to the statute which has constituted it, and must be exercised consistently with the statute and the Courts have, in appropriate cases, the power to declare on action of the body illegal or ultra vires, even if the action relates to determination of employment of a servant. It is not the case that there is any statutory or constitutional service guarantee in the instant case. The relationship between the plaintiff and the management is purely contractual. The educational rules which may govern the service of a teacher had been repeatedly held to be administrative in character and not enforceable statutorily : See Sampoornam v. The Divisional Inspector of Schools W.P. No. 1063 of 1952 and Gunabushanam v. Manager and Correspondent W.P. No. 111 of 1960. The plaintiff did not occupy any special position, which made the relationship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award had the effect of specifically enforcing such contract of personal service, and that, therefore, it offended Section 21 (b) of the Specific Relief Act. Before the, Supreme Court it was urged for the appellant that the declaration that the appellant continued in service under the university inspite of his dismissal by the latter provided in the award was a declaration which the law permitted to be made, and that, therefore, there was no error on the face of the award as looked upon by the High Court. Reliance was placed for the appellant on the decision of the Judicial Committee in High Commissioner for India v. I.M. Lall MANU/FE/0014/1948MANU/FE/0014/1948 : (1948) F.C.R. 44 : L.R. 75 IndAp 225 : (1948) F.L.J. 23 : (1948) 2 M.L.J. 55, where the Judicial Committee had in fact made such declaration. Repelling the argument of the appellant that such declaration would be valid, the Supreme Court said (at page 1054): That Lal's case MANU/FE/0014/1948MANU/FE/0014/1948 : (1948) F.C.R. 44: L.R. 75 IndAp 225 : (1948) F.L.J. 23 : (1948) 2 M.L.J. 55, was not a case based on a contract of personal service. Indeed the contract of the respondent in that case provided that he servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of dismissal to be a nullity and, therefore, of no effect. 9. In the instant case there can be no question of any ultra vires act or of the act of termination of service being a nullity. There is no statute prescribing and circumscribing the manner in which the services should be terminated by the management. In Vine v. National Dock Labour Board (1957) 2 W.L.R. 106, 112, 118, Viscount Kilmuir, L.C., said: Here, the removal of the plaintiff's name from the register being, in law, a nullity, he continued to have the right to be treated as a registered dock worker with all the benefits which by statute, that status conferred on him. In that case the plaintiff was a dock labourer employed in the reserve pool by the National Dock Labour Board, the defendants, in the case, under the scheme set up by the Dock Workers (Regulation of Employment) Order, 1947. The plaintiff's dismissal was held invalid, as the Local Dock Labour Board had no power under the scheme to delegate to a disciplinary committee their disciplinary powers given by clause 16 of the order. Lord Keth observed: This is not a straightforward relationship of master and servant. Normally and apart from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence : it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not full within this class because a chief constable is not the servant of the watch committee or indeed of anyone else. In Vidyodaya University v. Silva (1964) 3 All E.R. 865 (P.C.), a case from Ceylon the Privy Council again restated the principle with reference to a University professor, quoting the above passage in Ridge v. Baldwin L.R. (1964) A.C. 40, 65. In support of his position learned Counsel for the appellants cited also Mohanakrishniah Naidu v. National Bank of India MANU/TN/0287/1953MANU/TN/0287/1953 : (1954)ILLJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous body and is not a department of the State, and the relation between the Corporation and its employees is governed by contract, and no statutory obligation is imposed upon the Corporation in that behalf. The Court was therefore right in holding that the relationship between the employee and the Corporation had to be determined in the absence of any statutory provision or a special contract, by the general law of master and servant. In view of the aforesaid observations of the Supreme Court on Ram Babu Rathaur's case MANU/UP/0124/1961MANU/UP/0124/1961 : AIR 1961 All 502 , there can be the least hesitation in holding that in the present case the plaintiff can have neither a declaration that he continues in the service of the school nor an order for reinstatement in service. No decision contra has been placed before me for the plaintiff. Learned Counsel for the plaintiff-respondent referred to the decision of this Court in Sarangapani v. K. H. S. E. Society MANU/TN/0185/1956MANU/TN/0185/1956 : (1957) 2 MLJ 24 The decision is by a Division Bench. But the question now under consideration was not the subject-matter of any discussion. In that case the management of a school term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequential relief. In the latter case Elizabeth Rajagopal v. Athiya Gani S.A. No. 1713 of 1962 no doubt there was a declaration by the trial Court, that the plaintiff continued in service of the school. But mandatory injunction for reinstatement in service was not granted. There was only a decree for money, being the salary due to the plaintiff. On appeal by the management, the suit was dismissed in its entirety and this Court in second appeal restored the decree of the trial Court. I have already referred to the basis of the decision in that case. The charges levelled against the plaintiff were not investigated and the learned Judge observed that the matter was still sub judice though the District Judge had expressed his opinion against the teacher and in favour of the management when he did not have all the materials before him. There was no dispute on the quantum of damages and the learned Judge referred to the money portion of the claim as damages. In that case this Court only restored the decision of the trial Court. There was no discussion whether a declaratory decree as now claimed could be given. The points raised before me in the form were not raised before the learned Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear and normally it would take some time for him to find employment in some other school. In Beckham v. Drake (1849) 2 H.L.C. 579, 606, 608, Erle, J., observed: The measure of damages....is obtained by considering what is the usual rate of wages for the employment here contracted for, and what time would be lost before a similar employment could be obtained. In Tanjore Permanent Bank Ltd. v. Munuswami I.L.R. (1964) 1 Mad. 434, 435, Veeraswami, J., set out the principles for assessment of damages in the case of wrongful dismissal between master and servant thus: Where an employment is contractual and the terms of which provide or do not provide for the manner of termination of service, the principles for assessing damages to be awarded for wrongful dismissal are not in doubt. The basis of damages in such cases is breach of contract of service either because the stipulated notice was not given for termination or in the process of termination, the requisite procedure has not been followed. Where the contract provides for the manner of termination, as for instance, a month's notice or a month's pay in lieu of such notice, normally that will be the measure of damages. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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