Nirod Chandra Roy vs Raja Kirtya Nanda Singh and Others

The plaintiff in the suit giving rise to this second appeal, sought for damages for wrongful dismissal against the Managing Committee of the Tej Narain Jubilee College, Bhagalpur.

It appears that the plaintiff-appellant was appointed Professor of History at the College on a salary of Rs. 100 per mensem in July 1908, but, beyond the mere appointment on that salary no agreement was drawn up as to the term of the appointment or as to the conditions on which it was made. In 1909, having been offered a Professorship at St. Columba''s College, Hazaribaugh, the plaintiff resigned but subsequently withdrew his resignation, and, therefore, drew salary at the increased rate of Rs. 120 per mensem. Mean while he was studying law and in July 1912 passed the B.L. examination and obtained the B.L. diploma in March 1913. At the end of that year he was enrolled as a Pleader and obtained the permission of the High Court, Calcutta, to work as a Professor at the College while practising as a Pleader. He did not at the same time take the permission of the Managing Committee to practise as a pleader while holding the appointment of Professor of History. On the 6th April 1914 ho obtained his license to practise, and from the 8th of April began to attend the Courts at Bhagalpur.

In November 1913 the Director of Public Instruction informed the Managing Committee of the College that it was the intention of Government to make a grant of Rs. 1,000 per mensem to the College on condition that an adequate staff of teachers was maintained and those teachers were paid salaries not less than certain minima to be approved by the Government, and requested the Committee if they accepted the conditions to submit their scheme. In connection with this matter the Principal of the College in his letter dated 13th September 1913 (Exhibit 8) suggested that the salary of the Professor of History should be raised from Rs. 120 to Rs. 150 and noted "Professor Ray" (the plaintiff) "is leaving the institution shortly but a Professor will have to be appointed in his place" and again "Professor N.C. Roy: has passed his B.L. and applied for license to join the Bar, will do so within a month or two." In his letter dated the 22nd December 1913 the Director of Public Instruction communicated sanction to the payment of a grant of Rs. 1,000 per mensem to the College for one year with effect from Juno 1st, 1913 on condition among others, that a Professor of History should be maintained on a salary of Rs. 150. At the end of May 1914 the Managing Committee accepted the offer and in pursuance of the new system of graded salaries submitted to the Director of Public Instruction a list allowing increments with effect from June 1913 to some of the Professors and with effect from January 1914 to others, but allowing nothing to the plaintiff.

The reason for this attitude of the Managing Committee seems to have been that the Member had come to know of the plaintiff''s intention to leave the College and join the legal profession, and also that the Committee had discovered that the plaintiff had been attending Court as a pleader without obtaining their permission.

A meeting of the Committee was held on the 31st May 1914 and in pursuance of instructions the Secretary wrote to the plaintiff on June 2nd,

It has come to the knowledge of the Managing Committee that you have taken out license and joined the local Bar. This, if true, would naturally stand in the way of your throwing your whole heart into the work of College which, if not done with earnestness and whole-hearted devotion, is bound to be ill done. The Committee, under the circumstances, feel constrained to demand that you will either be pleased to have your license cancelled and give the Committee an undertaking that you will serve the Institution devoting your whole time to it for at least two academical years or resign your post at the College.

In reply the plaintiff wrote on the 13th June 1914 that he agreed to give an undertaking "to stick to the College for a further and longer period, but that, as in order to qualify himself for enrolment as a High Court Vakil he would have to practise in the mofussil Courts for four years, he requested that a cancellation of his license should not be insisted on. He stated that he had already renewed his license for 1914, and was doubtful whether he could have it cancelled, while with regard to 1915 it would be optional with him to renew the license or not, but he was afraid that such renewal would be necessary in order to complete the four years'' practice. He then proceeded to insist that ho should be allowed salary at the rate of Rs. 150 per mensem with retrospective effect from June 1913, and that the Syndicate of the Calcutta University might be consulted on the question whether he should be allowed to practise as a pleader while holding the Professorship.

There was no further meeting of the Managing Committee till the 13th September 1914 and on that date the plaintiff handed to the Secretary a letter to be placed before the Committee. In that letter he stated, "As desired by you I undertake to serve the Institution devoting my whole time to it for two academical years. You have, however, desired me to cancel my pleader''s license but this, I regret to point out, is not possible for me to dc as there is no provision in the High Court rules for cancellation of a license already issued. I may, however, fulfil your desire by not practising as a pleader till the end of December next and then by not renewing my license for the ensuing year." He then again asked that increment of salary might be granted with effect from June 1913, and that the advantage of any new grade system which might be introduced should be extended to him.

After considering this letter and the letter of the 14th June, the Committee passed the following Resolution.

Resolved that the application of Babu Nirod Chandra Roy be rejected and that he be asked forthwith to resign his post, failing which his services will be dispensed with effect from the 1st October 1914.

The plaintiff was thus given fifteen days notice before dismissal, and was dismissed as from the 1st October, receiving salary up to that date. He moved the Syndicate and Senate of the Calcutta University, but, after some inquiry and a motion in the Senate it was decided to take no action. Similarly, the Director of Public Instruction, though moved, abstained from interference in the matter of the refusal to grant increment of salary to the plaintiff with retrospective effect.

The plaintiff then instituted the present suit on 31st October 1917, asserting that the letter of the 2nd June 1914 had contained a proposal by the Committee that he should serve them for two academical years and that, as he had accepted that proposal in his letter of September 13th, a contract had been entered into which had been broken by his wrongful dismissal on the 1st October 1914. He claimed salary from October 1914 till May 1915 at the rate of Rs. 160 per mensem and at the rate of Rs. 170 per mensem, for the month of June 1915, in all Rs. 1,450. He also claimed back increment at the rate of Rs. 30 per mensem from June 1913, at Rs. 40 from June to September 1914 in all Rs. 520, and damages for travelling expenses assessed at Rs. 300. His total claim amounted to Rs. 2,270, or if he were found entitled only to salary up to the end of the session, having been dismissed in the middle of it, to Rs. 2,100.

Both of the lower Courts have agreed in dismissing the plaintiff''s suit. The learned Munsif in a clear and well considered judgment found that the proposal contained in the Secretary''s letter of June 2nd, 1914, was not accepted by the plaintiff in his letters either of the 14th June or the 13th September as to effect any contract, between the parties, as there was no unqualified acceptance nor was there an acceptance within a reasonable time. He held that the Committee were justified in objecting to the plaintiff''s conduct as being prejudicial to the interests of the College, and that the plaintiff took no heed of the warning but continued to practise in spite of the objection which fact might have given the Committee a right to dismiss him summarily, but he was given a fortnight''s notice. He decided that the plaintiff was not wrongfully dismissed.

With regard to the sufficiency of the fifteen days notice, after discussing the evidence to show that notice of fifteen days or at most a month is customary in the College, he pointed out that the plaintiff really had notice on the 3rd June that he would be called on to resign, and, therefore, it could not be held that sufficient notice was not given.

As to the increments of salary claimed, the learned Munsif pointed out that the plaintiff''s name had been expressly excluded from the list sent to the Director of Public Instruction, and no amount was officially sanctioned for the plaintiff, nor was any trust created by the Government in favour of any of the Professors. He found the claim to be unsustainable.

On appeal the learned District Judge agreed with the Munsiff and held that the plaintiff was guilty of a dereliction of duty which exposed him to summary dismissal, and that in any case one month''s notice would have been ample. As to the increments, the District Judge found that the grant was made for the benefit of the College and not for that of a Professor who was known to be intending to leave his post, and that the recommendation of the Committee as to the exclusion of the plaintiff from the benefit of increment of salary was not dissented from by the Director of Public Instruction. He dismissed the appeal.

The learned Counsel for the appellant has argued that the notice given to his client was insufficient, and that there not having been any period fixed at the time of the appointment, it must be held that there was a yearly hiring, and, therefore, the appellant was entitled to claim salary up to the expiry of the year during which he was dismissed. He contended that the appellant ought to be paid the equivalent of his salary up to June 1915, or if not that, up to the end of the current session, that is to say, up to May 1915.

His contention in the first place is that by the letter of June 2nd, 1914, the Committee made a proposal to the appellant that he should serve the College for two academical years and that the appellant by his letters of the 14th June and the 13th September agreed to serve for two years and thus, though at the time of his first appointment no agreement was made as to its term, a new contract was effected by the plaintiff''s letters of acceptance. We need, I think, only look at the contents of the letters to sea that the contention cannot be sustained. The Committee asked the appellant either both to have his license cancelled and to undertake to serve for two years or to resign. The plaintiff replied that he agreed to serve for two years, but was not ready either to cease practice or to have his license cancelled. He also insisted on an increment of his salary with retrospective effect. This was no acceptance of the proposal; to convert a proposal into a promise the acceptance must be unqualified and without conditions. By his conduct too the appellant showed that he did not accept the proposal for he continued to attend the Courts. Again by his letter of the 13th September the appellant, though undertaking to serve the College for two academical years, and suggesting that he might carry out the Committee''s desire by not practising as a Pleader till the end of December and thereafter not renewing his license, refused to get his license cancelled and furthermore again asked for increment. Besides the fact that the letter contained no unqualified acceptance, the reply was made unreasonably late, and after the practical refusal of the 14th June. After that refusal the proposal cannot be held to have good, and after it no acceptance could convert the proposal into a promise so as to create a contract. The support of this proposition I need only refer to the case of Hyde v. Wrench (1840) 3 Bea. 334 : 4 Jur. 1106 : 52 R.R. 144 : 49 E.R. 132. It is clear then that no new contract was effected between the appellant and the Committee for the former''s service for the period of two years.

In case the first contention failed the learned Counsel fell back upon the general law that where no term is expressed a hiring will be held to be a yearly hiring and argued that the appellant would be entitled to be paid up to the end of the year in which he was dismissed. He has referred us to various works on the law of Master and Servant. It is quite obvious that the rule of one month''s notice which applies to menials, will not apply to the case of a school master. The Rule I have mentioned as to yearly hiring extends to domestic and other servants such as clerks and others, but it is not an inflexible rule and, as has been pointed out in MacDonnel''s "Master and Servant page 136, each case must be considered by itself, and in each case it must be decided what notice would be reasonable.

In my opinion, in the case of a school master, especially when he was intending to leave his profession and join another, a notice of three months would be reasonable, and this period was held to be reasonable in the case of Governors and School mistresses in Todd v. Kerrick (1852) 8 Ex. 151 : 22 L.J. Ex. 1 : 17 Jur. 119 : 20 L.T. (O.S.) 101 : 91 R.R. 403 : 155 E.R. 1298.

In the alternative the learned Counsel argued that the plaintiff-appellant was entitled to receive pay to the end of the session, that is to say, till May, He relied on a Resolution of the Syndicate of the University of Calcutta dated the 21st January 1911 to the following effect:

"In every case that the services of a teacher or a professor are dispensed with for reasons other than incompetence or dereliclution of duty his pay for the full period of twelve months must be paid to him," and urged that this was binding on the Committee. It is unnecessary to discuss bow far this resolution bound the Committee; it will be sufficient to refer to my decision later in this judgment that the real reason for the dismissal of the plaintiff was a dereliction of duty, and so the resolution does not affect the circumstances of this case. The learned Counsel also relied on the case of Wittenbaker v. J.C. Galstaun 43 lnd. Cas. 11 : 44 C. 917. In that case the plaintiff had been appointed Master at the Armenian College, Calcutta, for a term of three years in 1912, and on the 26th July 1916, while he was still teaching after the expiry of his three years'' term, received a notice that his services would be dispensed with on August 1st, and ho was offered and received one month''s salary. It appears that his dismissal was not due to any misconduct, or dereliction of duty on his part. In the suit which he subsequently instituted the Principal of the City College deposed that it was the custom in the City College and the Schools which he knew, that the teachers or Governing Body were entitled to terminate an engagement by giving notice to terminate it with the existing session. Greaves, J. after considering, what the plaintiff''s position was after the expiry of the three years for which he was appointed, stated that he was inclined to think that after the three years the plaintiff''s employment must he considered to continue as a yearly employment which would terminate with the end of the school year or session. He held, however, that the plaintiff was entitled to a reasonable notice and that a notice of three months would be reasonable.

That case can be distinguished from the present one in that the dismissal was not for any misconduct, dereliction of duty or fault of the plaintiff, and in the Armenian College the academical year is divided into three terms, while in the case of the Tej Narain Jubilee College there are not terms.

Whatever may have been deposed to be the custom in Calcutta schools and Colleges in that case cannot affect this case, in which the evidence, including that of the plaintiff himself would seem to show that a notice of one month or even fifteen days had ordinarily been held to be sufficient. However, the learned Judge in Wittenbaker v. Galstaun 43 lnd. Cas. 11 : 44 C. 917 held, as I hold in this case, that a notice of three months would be reasonable, and he considered three months to be about equivalent to a term.

In the present case the appellant was asked to cancel his license or resign by the letter of June 2nd 1914. This was practically a notice to him given four months before his actual dismissal, and thus I consider that he could not complain that he had no sufficient notice. He had full time to look for another appointment if ho wanted one.

The letter of June 2nd too, informed him plainly that the Committee did not approve of his practising as a pleader, it was virtually a direction to him to cease practice, and he was informed that the Committee held that the practice was detrimental to the interests of the College. In spite of this the appellant continued to practice and paid no attention to the warning given to him. It is quite plain that the appellant''s practice in Court must be detrimental to the interests of the College to which the appellant was required to give his whole attention. The direction, therefore, contained in the Secretary''s letter was a reasonable one, and the appellant wilfully paid no notice to it. I am of opinion in agreement with the lower Court, that there was dereliction of duty on the part of the appellant and disobedience to a lawful and reasonable direction of the Committee which would have justified his summary dismissal.

I see no reason to differ from the findings of the lower Court and would dismiss the appeal. Having regard to all the circumstances of the case, I am of opinion that each party should bear its own costs throughout.