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Varma, J.—The plaintiff, Gidugu Venkata Sitapati, is the appellant in this appeal. The suit was for recovery of damages for wrongful dismissal of the appellant by the defendant, who happens to be the Raja of Paralakemidi. The plaintiff was dismissed on 6th February 1932. The plaintiff was a professor in a college, which was an Intermediate College in the year 1896 and remained in charge of the zamindar till the year 1905. Prom 1905 to 1913, the Court of Wards was in charge of the estate, and the zamindar again came in charge some time in April 1913. The plaintiff was appointed on 10th July 1911, and by the year 1926 he was drawing his maximum salary at the rate of Rs. 175 a month. The college was first affiliated to the Madras University and then to the Andhra University. I may mention here that on 1st July 1930, the plaintiff was selected a fellow to carry on research under the Andhra University, and he continued as such till June 1931. There was another attempt on his part to be elected a fellow and he succeeded in that attempt. Near about that time we come to the second phase of the case. In 1932 a Statutory Committee was formed, known as the Orissa Boundary Commission, and it is said that a memorial (Ex. W) was prepared by the plaintiff. As this memorial plays an important part in the case, it is better to quote it in extenso. It runs as follows:
To the Secretary, the Orissa Province Boundary Committee, Cuttack.
Mahajarnama presented (by)--Village�Taluk--we hereby inform you that we are not at all inclined to the inclusion (amalgamation) of our Ganjam District in the Orissa Province that is to be newly constituted now. Our reasons for this will be made known to you in detail by our Andhra leaders, on our behalf. We indicate (them) here only in brief.
Ganjam was never included in Orissa before. The mountain ranges and the Chilka lake are situated as the natural northern boundary of the Telugu country. Long before the Oriyas have colonised our country, our Telugu people were already inhabiting this district.
The number of Telugu people in this district is greater than that of, the Oriyas. As they started for colonization from the north-west, their population is greater, only in that portion of the country. As one goes southwards from the Chilka lake, the population of the Telugus will be found more and more. It is sheer injustice to include the taluks of Paralakimedi, Tekkali and Sompeta in the Orissa Province as there are about 80 per cent., Telugus in these Taluks.
If this district is included in the Orissa Province, we will have to be paying more taxes to the Orissa Government which will not have the strength to support itself at all, on account of deficit funds and reapless benefit. Moreover, as our business dealings have hitherto been going on from Vizagapatam District, we will sustain loss in future.
In the Orissa Province which is going to be constituted for the benefit of the Oriyas solely, the Telugus must remaim subservient to the Government of the Oriyas who are few in number and are known to be backward in civilization. When they are financially not in a position to carry on the Government the Oriyas with racial animosity and incapability for carrying on the proper administration will be managing the Government and thereby the Telugus will surely find their plight unbearable, in such a Government to which they will have to become subservient. As our connexions have ceased with the Andhra country, our intelligence, our knowledge, our civilization and our Andhra individuality will undoubtedly be lost for ever in the Orissa Province. The sufferings which the Oriyas say that they have been undergoing now will have to be experienced by the Telugus, in future, a thousandfold.
We regret that, forgetting the fact of his being the descendant of the Ganga Dynasty which ruled the Andhra country in the past, for a long time, and unaware of his ancestors having been non-Oriyas, and not observing that about 80 per cent, of the ryots in his Samastbanam are Telugus and that 80 per cent, of his income is derived from the Telugus alone and yielding himself to the words of the people of Orissa which were mentioned for merely selfish ends, the Baja of Paralakimidi is depriving his benefit and that of the Telugu people who are living in his Samasthanam in large numbers. In the past, the zamindars were treating the Telugu ryots and the Oriya ryots alike without any partiality and thereby the Telugu people were having respect and faith towards those zamindars. Now, as the zamindars themselves have been showing partiality, they are instrumental for creating the spirit of dissension in the Telugu people. It is apprehended and regretted that the unity that was existing between the Telugus and the Oriyas would be lost and hatred would increase. We therefore submit that the Government themselves, who are 4 the administrators of both the people and the zamindars will consider the matter well and will not amalgamate Ganjam district in the Orissa Province.
In this case we will also have to look to the nature of the service of the present plaintiff in order to come to the conclusion whether his dismissal was wrongful.
The case of the plaintiff is that owing to ill-feelings between the Principal of the College and the plaintiff, the authorship of the Telugu memorial addressed to the Secretary, Orissa Boundary Commission, was attributed to the present plaintiff, and was represented as such to the defendant, that the memorial does not contain anything mischievous against the defendant, that the plaintiff was served with a notice, dated 8th January 1932 signed by the Dewan of the defendant requiring him to attend an enquiry into his conduct, that the plaintiff submitted his explanations to the charges framed against him and he was dismissed by an order, dated 6th February 1932 as already mentioned. The plaintiff alleges that the inquiry was illegal and also the dismissal was unjustifiable and wrongful. He, therefore, elected to treat his contract of service with the defendant as subsisting, and, therefore sued for damages for breach of contract by the defendant. He also attempts to show that the service in the college is governed by the Fundamental Rules and the Civil Service Regulations regarding pay, increments, pension, leave and furlough to be granted to the staff.
The case for the defence was that the plaintiff''s contract of service was always terminable either for misconduct or on reasonable notice being given, that the defendant was not bound to retain the 9 services of the plaintiff up to the plaintiff''s completing the 55th year when he would be able to earn his pension, that his services were dispensed with after due inquiry of misconduct and, therefore the plaintiff could not claim damages on account of loss of pay or loss of pension, that the Fundamental Rules have no application to the facts of the case, and that the grant of pension depended on service being really approved and was not payable as a matter of course under the Civil Service Regulations which govern the conditions of service in the college. The defendant further stated that an inquiry was held by his Dewan into the plaintiff''s conduct in connexion with a memorial for presentation to the Orissa Boundary Commission, that the said memorial contained unfounded allegations against the defendant, who is the proprietor of the college, with a view to set up the Telugu ryots of I the estate against the defendant, that the allegations made in the memorial were mischievous and amounted to gross misconduct justifying the removal of the plaintiff, and that the inquiry held by the defendant''s Dewan was a proper one. It was further stated on behalf of the defendant that in 1929 the plaintiff also set up the teachers of the college against the principal for which he was severely warned by the then Agent, that the plaintiff committed acts of insubordination in submitting his leave application directly to the Registrar of the Andhra University and not through the proper channel in spite of warnings and in his application, dated 25th March 1931, wanted to avail himself of leave on loss of pay if the management did not grant him leave with allowance''s, and thereby waived his claim, if any, to leave with allowances. The defendant asserted that the order of removal was-passed after due inquiry and was not a matter liable to be reviewed by the Court nor are the orders passed on applications for leave. On these pleadings the following issues were framed:
Whether there was any agreement, express or implied, between the parties that the plaintiff should not be removed from the defendant''s service except for misconduct or on the plaintiff attaining 55 years of age?
Whether the dismissal or removal of the plaintiff from service was wrongful?
Whether the plaintiff is entitled to the leave allowance claimed by him?
To what damages, if any, is plaintiff entitled?
On Issue 1 the lower Court has held that the plaintiff''s service was terminable by reasonable notice. It also held that, according to the general law of Master and Servant, the plaintiff having failed to prove any express agreement or custom to the contrary, his service being a private service was terminable by reasonable notice and two months was a reasonable period for notice in the circumstances of the case. The lower Court further held that there was no agreement that the plaintiff should not be removed from service except for misconduct or on his attaining 55 years of age, and the issue was decided against the plaintiff accordingly.
On issue 2, the Court below found that the dismissal of the plaintiff was perfectly justified and not wrongful. On this finding it has come to the conclusion that the plaintiff had gone directly against the defendant in writing out Ex. W and as such it was a direct act of insubordination and insult to the defendant and no master could have tolerated such an act of his servant at a time of tension of feelings.
On issue 3, the lower Court held that the plaintiff was not entitled to leave allowances as claimed, and on issue 4 the lower Court held that the plaintiff was not entitled to any damages as claimed. He was only entitled to a reasonable notice and the Court thought that two months'' pay in lieu of notice was sufficient in the circumstances of the case. Hence, the plaintiff was given a decree for Rs. 350 which is double of Rs. 175 which was the pay he was drawing per month as a professor.
Mr. Ramana Murti, appearing on behalf of the plaintiff-appellant has urged that the finding of misconduct by the lower Court was not sustainable, although an enquiry was made after charges were framed. The defence in the present case has referred to the early incidents and acts of insubordination. r This view also requires going into the question as '' to what the nature of the service was. The plaintiff never claimed to be a servant under the Government who are governed by special set of rules. In the present case the college belongs to the defendant in which the plaintiff was a lecturer. There is no written agreement between the parties proved or pleaded in this case by the plaintiff regarding the terms of the service. The plaintiff relies on the advertisement (Ex. A) which runs as follows:
Wanted for the Raja''s College, Paralakemidi, a Lecturer in History, M.A. preferred. Salary Rs. 120-5-140 per mensem. Appointment permanent. College awards gratuity for a long and good service....
Exhibit 3 is the application of the plaintiff and Ex. C is the order of his appointment on 11th January 1911. Exhibits C (1) to C (6) are the salary acquittance rolls from 1st November 1919 to 1st July 1929 and Ex. M is the service book of the plaintiff. From these it is clear that the plaintiff was a permanent Lecturer in History in the College and he got his increments from time to time, and his pay at the time of dismissal was Rs. 175 per mensem. But, although the plaintiff''s service was permanent, the question is whether the plaintiff could take up the attitude that in no circumstance could his employment with the defendant be terminated till he reached his pensionable age. As to what is meant by "permanent" has been, the subject of discussion in a number of cases. In Bimalacharan Batabyal Vs. Trustees for the Indian Museum, , where the plaintiff was an employee under the Trustees for the Indian Museum that question came up for consideration where Costello, J. held:
I think that the words "substantive and permanent" as used in the service book import no more into the relationship between the plaintiff and the Trustees of the Museum than that his employment is of a permanent as opposed to a purely temporary character, and that he is the incumbent of his appointment and not merely "acting" and was entitled to the emoluments of it in such a way that, in the ordinary course, if his employment had continued he would be entitled to and subject to all the rights and liabilities incidental to the service in accordance with the Civil Service Regulations. In other words, the phrase "substantive and permanent" is more descriptive of the nature and character of the appointment than indicative of the duration of that appointment.
I accordingly, hold that there is nothing in the plaintiff''s service book which indicates that the defendants were binding themselves to employ him either for the rest of his life or for as long as he chose to remain in their service or until he, attained the age of 55 or until he was entitled to receive a pension.
In view of the principle laid down in this Calcutta case with which I respectfully agree it is not necessary for me to multiply instances in which a similar view was taken. The next question that we have to consider is whether the plaintiff was guilty of misconduct. This again will involve the-question whether instances previous to the writing of Ex. W could be taken notice of and whether the inquiry was a proper one and whether the facts alleged on behalf of the defendant did amount to misconduct. I would take up the question of misconduct first; but that necessitates going into the history of the various incidents that took place from the time of the appointment of the plaintiff till his dismissal.
The plaintiff was appointed, as I have already said, a Lecturer in 1911, and reached his maximum in 1916. Prom Ex. 8, dated 11th January 1939, it appears that a representation was sent to the principal protesting against the word "chastise" which was used by him against another professor along with some other lecturers and teachers in the college. This matter was gone into by the agent to. the Raja of Paralakemidi who by an order dated-19th January 1929, Ex. 8 (A), held that there was nothing wrong in the conduct of the principal and the plaintiff lecturer was asked to submit an explanation "for his unseemly conduct in signing and actively canvassing signatures to the petition" and the other members of the staff were asked to apologize. On 1st February 1929, the agent passed an order which is Ex. 8 (D) characterizing the act of the plaintifi as a gross breach of discipline and warning him against any repetition of similar conduct in future. In this connexion I may mention, another document, Ex. 16, which is a letter dated 28th January 1929, before the order was passed by the agent from the principal suggesting to the agent to take a lenient view of the matter and not to award any punishment except a warning. This incident took place in 1929.
The next incident that occurred was in connexion with the question of leave of the plaintiff when he was elected fellow of the Andhra University to carry on research work in connexion with the Savaras, an aboriginal tribe. It appears that on 30th March 1930, the plaintiff sent an application (Ex.B) to the Registrar of the Andhra University, praying that he should be awarded fellowship for research work in connection with the Savaras; but he informed the principal of this action of his on 1st April 1930, and sent an application in duplicate to the principal to be forwarded to the Registrar by the principal. Exhibit Section (4), dated 2nd April 1930, is a letter from the principal to the plaintiff asking him if he was aware that the notice had been on the board for some time and on 3rd April 1930, the principal wrote a letter, Ex. Sectopm (7), to the defendant requesting the latter to excuse the plaintiff for having sent the letter direct to the Registrar. Exhibit Section (5), dated 22nd April 1930, is a letter from the principal inquiring from the plaintiff whether he was going to apply for leave. On 1st May 1930, the application, Ex. Section (6), was submitted by the plaintiff to the Raja of Paralakemidi, praying for such leave from 1st July 1930, upon which the principal submitted a report, Ex. Section (9), on 6th May 1930, recommending him leave on a loss of pay for one year from 1st July 1930 while complaining of the conduct of the plaintiff in applying to the Andhra University direct. It seems that that recommendation was accepted; but, as against that, the plaintiff seems to have made an application, Ex. Section (10), to the Raja of Paralakemidi on 6th May 1930. This matter was evidently gone into by the Raja who by his order, Ex. Section (13), dated 16th June 1930, refused to modify his order granting him leave with loss of pay; but in this order the following remark was made:
In this matter the undersigned has observed many instances of infringement of rules by the lecturer, such as submitting the application for the scholarship without the previous knowledge of the management, etc.; which cannot but be taken up for consideration at this stage of disposing of the, appeal petition. All this conduct goes against the '' applicant very seriously, as it is nothing short of insubordination affecting the general tone of discipline of the institution. As such, the undersigned is strongly of opinion that the grounds upon which the appeal petition is based do not deserve any reconsideration. Hence the decision already arrived at stands.
These incidents occurred in connexion with his first application for leave on loss of pay; but evidently the plaintiff was anxious to continue his research work and therefore he submitted an application for extension of leave and, not hearing anything about that application, he, by his report, Ex. T(4), dated 1st July 1931, informed the principal that as his leave expired the previous day he had come to join on that day. But he was informed that he could not be allowed to take charge, and therefore he awaited orders; but before this the application for renewal, Ex. T (22), had been made on 24th March 1931. On 13th May 1931, the principal of the college wrote a letter, Ex. T (21), to '' the Registrar of the Andhra University, complaining that the plaintiff was allowed to again move the University directly for the renewal of his fellowship. On this letter the Registrar of the Andhra University informed the plaintiff by a letter, Ex. T (20) dated 6th July 1931, that the whole correspondence was recorded. Exhibit BB is a letter dated 25th June 1931, from Mr. Muir to the plaintiff supporting his statement that, between November 1930 and March 1931 when the former was the agent of the Raja Sahib, the plaintiff had informed him of his intention to apply for a year''s extension of his fellowship. Then came Ex. T (4) on 1st July 1931, which I have already mentioned. The order for this leave was sent. in a letter, Ex. 12, from the Dewan to the plaintiff on 4th January 1931, alloying him leave on loss of pay for one year from 1st July 1931, in continuation of the leave granted. before.
I have given this historical background to point out the real significance of the statements contained in the memorial, Ex. W, which was sent to the press in the handwriting of the plaintiff and was supposed to be on behalf of the Telugu speaking people who were against their amalgamation with Orissa. The following charges were framed against him on 16th January 1932:
(i) That you wrote a memorial to the Orissa Boundary Committee containing certain unwarranted allegations against the Eaja Sahib which you know to be false.
(ii) That you have a hand in publishing the said allegations inasmuoh as the copy sent to the press for print was in your handwriting and you, knew at the time of writing the memorial that it would go to the press.
In reply to this charge the plaintiff submitted an explanation, Ex. EE (1) on 25th March 1932, and his main explanation was that he wrote the original memorial at the dictation of his father and that he did not know that the statements contained therein were false. Upon this an enquiry was held and, in the course of the enquiry, the memorial itself, its manuscript copy, the statement of the plaintiff and the charges framed against him were considered (Ex. JJ) and under this order his services were dispensed with.
Our attention has been drawn by Mr. Ray, appearing on behalf of the defendant-respondent, to emphasise the general attitude of the plaintiff to Ex. U (16), dated 24th June 1930. This was a letter addressed to the Registrar of the Andhra University in the nature of a protest against the decision of the college authorities and expressed a desire that the University to which the college was affiliated and the Government from whom the college received grants should take measures to safeguard the rights and privileges of the lecturers. Exhibit T (22) dated 2nd June 1931 is another letter of the Registrar of the Andhra University making complaints against the action of the college authorities and suggesting that, if the Syndicate was indifferent and declined to intercede, a heavy punishment was imminent.
Although the plaintiff alleged that he wrote the memorial at the dictation of his father, and he is supported in this by the statement of his father, there is no doubt, in my mind, that the plaintiff cannot be absolved from the responsibility of the authorship of this memorial.
The next question that has to be decided is whether there was an enquiry into his conduct and whether the writing of this memorial which the plaintiff must have known was to be sent to the press amounted to misconduct. As to what amounts to misconduct will depend upon the facts and circumstances of the case. Halsbury''s Laws of England, Vol. 20, paras. 191 and 195, 1911 Edition, throw a good deal of light on the subject:
Misconduct, inconsistent with the due and faithful discharge by the servant of the duties for. which he was engaged, is good cause for his dismissal. So if he is guilty of fraud or dishonesty in connexion with the business of his employer he may be dismissed....
A servant may also be summarily dismissed if he has been guilty of an offence outside his employment of such a character as to make it unsafe for the master to retain him....
A servant, whose conduct is incompatible with the faithful discharge of his duty to his master, may be dismissed, as where, unknown to his employer, he enters into transactions whereby his personal interests conflict with his duty as a servant in his particular capacity....
In Pearce v. Foster 17 Q.B.D. 536, it was decided that if a servant''s conduct was incompatible with his duty, it would amount to misconduct. This decision was followed in Delhi v. New Victoria Mills Co. Ltd. Cawnpore I.R. 1929 All. 87. This was a case in which the plaintiff sued the defendant and claimed for certain reliefs on the basis of a contract of agency entered into by the parties under which the plaintiff company were made the managing agents of the defendant company. The plaintiff company came into existence in 1921 and had a well-established reputation in high commercial circles. The importance of the plaintiff company lay in the fact that it bore the name of two persons and it was popularly believed that it had connexion with an English company of the same name. In 1922 the plaintiff company were appointed managing agents of the defendant company for a term of 20 years and an agreement dated 1st February 1922 was duly executed. In December. 1922 suspicions were aroused as regards the reputation and credit of the plaintiff company in commercial circles. The defendant company regarded the association of the plaintiff company damaging to the interest of the former company and dismissed the plaintiff company from the managing agency on 29th March 1923. Thereupon the plaintiff company brought a suit on 30th September 1924. One of the reliefs claimed was for a declaration that the dismissal of the plaintiff company resolved on by the directors and share-holders was not operative, leaving the plaintiff''s position as managing agents under the agreement, dated 1st February 1922, unaffected and * subsisting up to the date of the suit. They also claimed damages to the extent of 16 lacs of rupees for dismissal before the expiration of the stipulated period of 20 years. The trial Court decided against the plaintiff. On an appeal, almost all the points raised in the trial Court were raised. After finding that the reputation of the plaintiff company was odious in financial circles, it was held that the defendant company was clearly within its rights to terminate the agreement of 1922, regardless of the term of 20 years entered therein in consideration of the advantages then forthcoming but which were quite out of question in March 1923. Their Lord, ships relied upon the dictum of Lord Esher, M.R. in Pearce v. Foster 17 Q.B.D. 536 that:
The elation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully.... What circumstances will put a servant into the position of not being able to perform, in a due manner, his duties, or if not being able to perform his duty in a faithful manner, it is impossible to enumerate. Innumerable circumstances have actually occurred which fall within that proposition, and innumerable other circumstances which never have yet occurred, will occur, which also will fall within that proposition.
Their Lordships of the Allahabad High Court observed as follows:
Lindley, L.J. who delivered a separate judgment in the same case indicated that though a servant may have been employed for a fixed number of years he can be dismissed during the term if his connexion with the employer raises a reasonable apprehension of injury to his reputation. We think that moral deliqueney in the servant is not the only justification. Whatever may be the cause which so alters the position of the servant as to render his retention harmful to the master would justify his removal within the term agreed on under different circumstances.
It seems to us that the Indian statute law on the subject is very elastic and damages for termination of agency before expiry of the agreed term cannot be recovered as a matter of course. It is only where such termination is without ''sufficient cause'' that damages can be recovered. The circumstances of each case will determine the question whether there was sufficient cause. It will largely depend upon the nature of the business to which the agency relates, the personal qualification which existed when the contract was entered into, the altered conditions which since came into existence and their probable effect on the interests of the employer. No hard and fast rule can be laid down for any class of cases.
In the course of argument before this Court reference has been made to Smith''s Law of Master and Servant at page 83, Edn. 8, where it is said that "Misconduct inconsistent with the fulfilment of the express or implied conditions of service will-justify dismissal." In view of the principle, lam of opinion, considering the fact that the plaintiff was an employee in a college owned by the defendant and the defendant occupied an important position as a member of the Commission to which the memorial, Ex. W., was addressed and further taking into consideration the fact that one of the paragraphs in that memorial was likely to discredit the defendant in the eyes of the public, especially in the light of the historical background of previous acts which showed utter disregard of rules and spirit of obstructiveness, the dismissal of the plaintiff was not wrongful.
The question whether in passing the order of dismissal the defendant was justified in referring to matters before Ex. W is well covered by authority. I may mention only one. In The Madura Devasthanam Vs. Sundaram Annavi and Others, it was held that a Judge had to determine whether there was justification for the order of dismissal and not whether he personally would have dismissed for such conduct. When an offence has been condoned or dealt with and the offender retained in service, it is not open to the employer to subsequently dismiss him for the same offence but if the servant offends again, it is perfectly justifiable for the employer to consider the prior offences in determining in what manner he should be dealt with for the subsequent offences.
There is another aspect of the case which does not arise after the above finding but with which I should like to deal shortly, because it has been argued before this Court by both the sides. The question was that even if the dismissal of the plaintiff was not justified, to what amount of reasonable notice or pay in lieu thereof the plaintiff was entitled. In the plaint the plaintiff claimed pension in view of the fact that originally under the Court of Wards the provision that was made for gratuity to teachers and lecturers retiring after a period of service was changed by the defendant who introduced the system of giving pension according to the Civil Service Regulations. Exhibit PP, dated 13th February 1915, shows the introduction of the system of giving pensions. On 18th July 1920, a note to the effect that the following rules should be embodied in the rules and regulations of the college was submitted to the Raja:
No member of the staff in the Raja''s College, Paralakemidi, will be allowed to quit his appointment in the college without giving full two months'' notice or without forfeiting or refunding two month''s pay instead. On the other hand, if the Raja Sahib proposes to terminate the service of any member of the staff, the teacher will be given either two months'' previous notice or two months'' pay instead.
The case of the plaintiff was that this rule was subsequently changed; but it appears that the draft, Ex. F, was sent to the press before this Ex. Z came into existence. Exhibit P is a set of printed rules of which Rule 4, deals with the question of notice. The drafting of Ex. F was completed either in 1920 or early in 1921 at the time of the principal, Mr. T.R. Raghu Nath Rao. It appears also that there was a special contract between one of the principals and the Raj and in that case the term was three months notice on either side. If that was so, it is doubtful if Ex. P superseded Ex. Z. There was an order, Ex. Z (2), with regard to Ex. P that it should be kept in safe custody and this was after taking the signatures of the various employees in the college. There is oral evidence on the record to show the various dates on which certain incidents in connexion with Exs. P and Z took place; but the important evidence, is of the principal (D. W. 1) who says that there was no memorial after Ex. Z was drawn up and accepted by the staff. Instances have been given in which the services of the members of the staff were dispensed with after giving two months'' notice or two months'' pay: vide Ex. Z (3). Prom this it is clear that even if the dismissal of the plaintiff was not justified it was the practice in the Raj that two months'' notice was to be given on either side. This part of the case is of importance only if it is held that the dismissal of the plaintiff was not justified; but, as I have held, the conduct of the plaintiff amounted to misconduct and, therefore, his dismissal was justified.
There is no necessity for modifying the decree inasmuch as there is no cross-appeal on behalf of the defendant. The appeal is, therefore, dismissed with costs.
Fazl Ali, J.
I agree.