JUDGMENT
1. The facts of this case are simple & further not many. They lie in a short & narrow compass & require but a brief statement. The pltf. was a clerk in the service of the deft, the Andhra University, down to 3-1-1940, the date of his dismissal by its Vice-Chancellor, Sir C.R Reddi, after his inquiry into the offence of theft of a B. Ed., diploma from the records of the University of which he found the pltf. guilty. On appeal taken by the pltf. to the Syndicate, the Syndicate finding no power of dismissal vested in the Vice-Chancellor treated his order as a recommendation which it accepted by its order dated 25-6-1940 after constituting a Committee to go into the matter & obtaining a report from it without any independent inquiry by the committee. The pltf. thereupon sued for a declaration that the orders were unjust & illegal. The deft, resisted the suit by pleading that the orders were just & legal, as also that the suit for a bare declaration was not maintainable without a consequential prayer as for damages the Addl. Subordinate Judge, Vizagapatam who tried the case held the dismissal to be wrongful for want of an inquiry by the Syndicate notwithstanding the fairness of the inquiry by the Vice-Chancellor & on the ground of a violation of rules of natural justice by the Syndicate in that neither the Syndi cate nor the Committee appointed by it gave the pltf. any chance of any hearing of his case or any notice to show cause why the dismissal order of the Vice Chancellor should not be treated as a, recommendation which it might accept & act upon. The learned Subordinate Judge however nonsuited the pltf. on the ground that even assuming, the suit for a bare declaration to be otherwise maintainable, no declaratory relief cold be granted to the pltf. who had already earned employment elsewhere, since the granting of such relief would only serve as a stepping stone for further-litigation to get himself restored to his position, before dismissal which must end in a futility. On appeal by the pltf. to the learned Dist. J. of Vishakapatnam, that Judge reversing the trial Ct. has held that the jural relationship between the deft. & the pltf. was the ordinary one of master I & servant under which the servant can always be dismissed for misconduct which however is a matter for proof by the master in Ct. when the dismissal is challenged. & that the suit for a mere declaration was maintainable & would not end in a futility, as the declaration, if granted, although ineffective to reinstate the pltf. except on the good sense of the master, would be a valuable gain to him as a vindication of his character. In the result, the learned Dist. J. remanded the case to the Ct. of first instance for the trial of an addl. issue framed by him, “was the pltf. guilty or not guilty of the charge of theft made against him?,” & for fresh disposal of the suit in the light of the finding to be recorded by the trial Ct. on that, issue. Against the order of remand by the learned. Dist. J. the deft, fcas preferred this appeal.
2. Althour in the initial stages of the argument stress was laid by Sri Alladi Krishnaswami Ayyar, the learned counsel for the applt. on cases like Lennox Arthur Patrick O'Reilly v. Cyril Cuthbert Gittens, 1949-2 M.L.J 574 : (AIR (36) 1949 P.C 313) laying down that,
“Provided that a domestic tribunal (like the steward’ of a turf club) does not exceed its jurisdiction & acts honestly & in good faith, the civil Ct. cannot intervene-even if it thinks that the penalty is severe or that a very strict standard has been applied,”
the learned counsel in the later stages of the argument gave up such stress, maintaining only that, if as also contended by him, the contract of service in the present case is to be regarded as containing an implied term that the deft, should have the power to dismiss the pltf. on due inquiry into suspected misconduct in accordance with, rules of natural justice, the question of honesty & bona fides about the conduct of the deft, would become relevant. This line of contention was not raised in the Cts below & cannot be entertained by me, turning as it does on evidence as to the intention of the parties which could & would have been adduced & canvassed, had it been appropiately raiaed. Moreover, I am not satisfied prima facie that any such term can be implied by the Ct. into the contract of service in the present case & any question of honesty & good faith about the conduct of the Vice-Chancellor & the Syndicate in suspending & dismissing the pltf. falls to be considered as at all relevant to the present case. The rule as to implication of terms not expressly four in a contract is stated thus in Halsbury's Law of England, Edn. 2 vol vil, at p. 822:
“Such an implication must in all case be founded on the presumed intention of the parties & upon reason & will only be made when it is necessary in order to give the transaction that efficacy that both parties must have intended it to have & to prevent such a failure of consideration as could not have been within the contemplation of the parties.”
The term sought to be implied in the present case is not, strictly speaking, necessary in the sense indicated in the passage quoted & cannot be allowed to be imported into the interpretation of the contract of service between the pltf. & the deft.
3. The two main contentions for the applt. before me have been (1) that the office of the pltf. under the deft, is one held during pleasure & no misconduct need be proved by the master as in the case of an office held during good behaviour but subject to reasonable notice, & (2) that the learned Dist. J. should, like the learned Subordinate Judge, have refused the declaratory relief sought in the circumstances of the case. In support of the first contention reliance has been placed on V.A. Chellam Aiyar v. Corporation Of Madras, 6 M.L.W 284 : (A.I.R (5) 1918 Mad. 710) which was the case of a servant under the Corpn. of Madras dismissed by its President. The office of the servant was regarded by the Ct. (Wallis C.J & Oldfield J.) as one held at pleasure, & it was ruled that in the case of such an office, no notice or framing of charges was necessary to validate the dismissal of its holder & that the servant had no cause of action against the Corpn. for his dismissal by it President. Notwithstanding the highly critical & erudite scrutiny to which this decision has been subjected by Varadachariar, J. In Venkateswara Aiyar v. Minahhi Sundares-warar, 69 M.L.J 206 : (A.I.R (22) 1935 Mad. 945) an far as it was sought to be applied to the case of the servant of a Devasbhanam holding office in accordance with a scheme of management governing it. I am satisfied that this decision is still good authority with reference to the kind of office dealt with by it. It is urged by Mr. Narasaraju that Varadachariar, J. must be taken to have disapproved of the reasoning of the case in V.A. Chellam Aiyar v. Corporation Of Madras, 6 M.L.W 284 : (A.I.R (5) 1918 Mad. 710) so far as it is founded on the two English decisions in Smyth v. Letham, 9 Bing 692 : (2 L.J Ex. 241) & Motley v. London County Council, (1915) 3 K.B 580 : (85 L.J.K.B 113). That may be; but the decision, as being that of a Bench was binding as much on the learned Judge as it is on me. His Lordship could not & did not dissent from it. It is also urged by Mr. Narasaraju that another single Judge of this Ct. (Newsam J.) has in Lakshminarayanarao v. Imperial Bank of India, Guntur, (1939) 1 M.L.J 615 : (A.I.R (26) 1939 Mad. 580) accepted & acted upon Vardachariar J's critical appreciation of Chellam Aiyar v. Corpn. of Madras, 6 M.L.W 284 (A.I.R (5) 1918 Mad. 710) in Venkateswara v. Minakshi Sundareswarar, 9 M.L.J 206 : (A.I.R (22) 1935 Mad. 1945) as expressing the true legal position. In Lakshmmarayana Deo v. Imperial Bank of India, Guntur, (1939) 1 M.L.J 615 : (A.I.R (26) 1939 Mad. 580) the Cts below having held that a servant of the Imperial Bank of India holds his office at pleasure & is liable to be dismissed without notice, the learned Judge here observes:
“This view is based on V.A. Chellam Aiyar v. Corporation Of Madras, 6 M.L.W 284 : (A.I.R (5) 1918 Mad. 710) in which case provisions similar to 8.50 of Sch. II of the Imperial Bank of India Act were considered & interpreted in that light. The decision along with others has been fully considered in Venkateswara Aiyar v. Sri Meenakshi Stmdarswarar, 69 M.L.J 206 : (A.I.R (22) 1935 Mad. 945) which I take as my authority for the true position. Servants of the Crown hold office during the pleasure of the Crown net by virtue of any special prerogative of the Crown but because such are the terms of their engagement (Shenton v. Smith, (1895) A.C 229 : (64 L.J.P.C 119).) But servants even of a statutory body do not hold office at their pleasure merely because the statute provides the body or persons by whom they may be dismissed. It is not right to assume that the power of dismissal is a power of summary dismissal.”
4. With the actual decision or even the real reasoning in Lakshminarayana Deo v. Imperial Bank of India, Guntur, (1939) 1 M.L.J 615 : (A.I.R (26) 1939 Mad. 580) I have no quarrel; but I must at the same time discountenance any suggestion that Chellam Aiyar v. Corpn, of Madras, 6 M.L.W 284 : (A.I.R (5) 1918 Mad. 710) has ceased to be authoritative in this Ct. by reason of Venkateswara v. Minakshi Sundareswara, 69 M.L.J 206 : (A.I.R (22) 1935 Mad. 945) & Lakihminarayana Deo v. Imperial Bank of India, Guntur, 1939-1 M.L.J 615 with reference to the kind of office with which the Gi was concerned in that case. Newsam, J. even like Varadachariar, J. had on power to say any such thing as that; nor do I understand them to have meant, much less said, any such thing. I consider the ruling in V.A. Chellam Aiyar v. Corporation Of Madras, 6 M.L.W 284 : (A.I.R (5) 1918 Mad. 710) to be correct, not merely & generally with reference to the distinction made by it between offices which are held during good behaviour or freehold offices & offices which are held at pleasure but also with reference to the conclusion reached therein on the basis of the English decisions in Smyth v. Lathan, (1833) 9 Bing. 632 : (2 L.J Ex. 241) & Notley v. London County Council, (1915) 3 K.B 580 : (85 L.J.K.B 113) that it is well settled that when an officer in the position of the President of the Madras Corpn. is empowered by statute to appoint & dismiss subordinate officers & servants, these officers & servants hold their office at pleasure. As observed in Halsbury's Laws of England, Edn. 2, vol. XXII at p. 146:
“Public servants hold their office during the pleasure of the Crown Officers of local authorities usually hold the office during the pleasure of the local authority.” I need only observe that the word “usually” in the second sentence of the quotation rather suggests that in the case of Crown offices the rule is absolute while in the case of offices under local authorities the rule is one of presumption liable to rebuttal by proof to the contrary. I am not satisfied, however, that the kind of office with which I am concerned here is governed by the ruling in V.A. Chellam Aiyar v. Corporation Of Madras, 6 M.L.W 284 : (A.I.R (5) 1918 Mad. 710). No authority English or Indian, has been brought to my notice which has extended the rule of office held during pleasure beyond offices under the Crown & offices under local authorities to offices under a University or such other authority. Nor am I prepared solely from the power of appointment & dismissal provided for in favour of the Syndicate in the Andhra University Act, to presume that officers & servants of the University are persons holding their offices & places during the pleasure of the Syndicate. Such a view would, however high the legitimate place of honour which a statutory body like the University ought to enjoy in the public life of the country, not only exalt it to a higher place than is warranted by needlessly assimilating it to a Governmental authority or a body connected with Local Self Govt. but also involve far-reaching consequences which ought not to be countenanced in regard to the security of tenure which ought to be assured to public officers & servants holding employment under it.
5. It is significant too to bear in mind in this connection what the learned Dist. J. says in para. 6 of his judgment:
“Not the slightest attempt has been made before me to contend that the service of the pltf. was at the pleasure of the University. It must be held that the service was during good behaviour subject to reasonable notice. In this case notice was not given & the question is whether the dismissal was or was not for proper reason.”
On the whole it seems to me that the proper approach to the case has been made by the learned Dist. J. with due regard to the legal status & authority of the University as appears from his observations in para. 13 to this effect:
“In the circumstances it was not necessary for the Syndicate to frame charges against the pltf. or to give a hearing to the pltf. The Syndicate had the power of dismissal. No enquiry was needed. If the cause for dismissal was not true or proper, that dismissal would be wrong. But the dismissal cannot be challenged on the ground that no opportunity had been given to the pltf. to show cause or that the pltf. was not heard”.
He has rightly revsd. the learned Subordinate Judge who proceeded on the basis that an inquiry on the part of the Syndicate in accordance with rules of natural justice was necessary, & he has at the same time rightly held it incumbent on the deft, to satisfy the Ct. about the propriety of its dismissal of the pltf. The issue framed by him has been correctly raised, & the order of remand must accordingly stand, subject to the next contention of the petnr. already indicated & to be immediately dealt with.
6. On this contention the point is put by counsel in a twofold way: (a) This case attracts Section 42 of the Specific Relief Act, & falls within its proviso. The pltf. must, therefore, sue for damages, nominal though they may be; (b) Even quite apart from that section & its proviso, a suit for a bare declaration of the present kind is something unheard of in & unknown to law. The pltf. cannot sue for such declaration if it only be to vindicate his character. That will be a suit for damages in tort, not in contract. Where there is a breach of contract, pltf. may accept it & ask for damages or repudiate it & ask for reinstatement in office if possible. He cannot have a tertium quid—a bare declaration to vindicate character. In the present case the pltf. has accepted the breach & gone about employment elsewhere & in fact got it. Therefore the suit must go.
7. As to the first way of putting the point I am perfectly clear that it must fail. The present suit is not one of the kind contemplated by 8.42, Specific Relief Act, & no question of the proviso applying or not applying, therefore, arises. The section contemplates only a suit for a judicial declaration of the legal character or status of a party or of his right as to any property, & this suit is not of that kind. As Mr. Narasaraju rightly argues, the section is not, according to well settled authority of this Ct. exhaustive of all possible declaratory suits; but the question still remains whether the present one is maintainable otherwise than with reference to the section. This leads me to a consideration of the second branch of the contention.
8. On this branch the applt. cites first Ramakrishna v. Narayana, 39 Mad. 80 : (A.I.R (2) 1915 Mad. 584). There the suit was by a purchaser of rights from the second deft, a subscriber to a half ticket in a kuri started by deft. 1 as its proprietor & sought a declaration against the latter that the pltf. was not a defaulter & was in a position to continue to pay subscriptions to the kuri. The Ct. (Sadasiva Aiyar & Napier JJ.) after holding Section 42 of the Specific Relief Act, not to be exhaustive ruled that
“a declaratory relief will not be given in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract unless there are exceptional circumstances in a case to take it out of the ordinary rule.”
In the particular case before the Ct. the learned Judges held that there were no such exceptional circumstances. I am not prepared to say that in the present case the declaratory relief if granted would affect only the pecuniary relationship between the parties or that there are not, at any rate, exceptional circumstances taking this case out of the ordinary rule, if regard is had to the view of the learned Dist. J. that the relief, if granted, would be a valuable gain to the pltf. as vindicating his character & preserving his reputation. The ruling in Ramakrishna v. Narayana, 39 Mad. 80 : (A.I.R (2) 1915 Mad. 584) has been followed in Nathuram v. Mula, A.I.R (24) 1937 Lah. 25 : (169 I.C 932) and Gopaldas v. Mulraj, A.I.R (24) 1937 Lah. 389 : (173 I.C 444) which take the applt's case no further. It may be, by the way, observed that in these two Lahore cases decided by the same learned Judges (Abdul Rashid & Addison JJ.) the mistake is committed of supposing that Ramakrishna v. Narayana, 39 Mad. 80 : (A.I.R (2) 1915 Mad 584) ruled the unmaintainability of a suit for a declaration affecting only the pecuniary relationship between the parties with reference to Section 42 of the Specific Relief Act only. Ramakrishna v. Narayana, 39 Mad. 80 : (A.I.R (2) 1915 Mad. 584) ruled such unmaintainability also quite apart from that section on the footing that it is not exhaustive of all declaratory suits.
9. The next case cited worth considering is Addis v. Gramaphone Co. Ltd., (1909) A.C 488 : (78 L.J.K.B 1122) which holds as the headnote rightly bears, that:
“Where a servant is wrongfully dismissed from his employment the damages for the dismissal cannot include compensation for the manner of the dismissal, for his Injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment.”
Although the actual conclusion of the majority of the House in that case does not cover the point on hand, what counsel stresses is the following passage in the judgment of Lord Atkinson at p. 496 of the report:
“In many other cases of breach of contract there may be circumstances of malice, fraud, defamation, or violence, which would sustain an action of for a an alternative remedy to an action for breach of contract. If one should select the former mode of redress, he may, no doubt, recover exemplary damages, or what is sometimes styled vindictive damages; but if he should choose to seek redress in the form of an action for breach of contract, he lets in all the consequences of that form of action: Thorpe v. Thorpe, (1832) 3 B & Ad. 580 : (110 E.R 211). One of these consequences is, I think, this: that he is to be paid adequate compensation in money for the loss of that which he would have received had his contract been kept, & no more.”
The passage cited does, no doubt, draw a distinction between the two forms of action—in delicto in contractu—arising out of the same wrongful act of the deft, in the matter of damages recoverable in each. It has hardly any bearing, in my opinion, on the maintainability of a suit for a bare declaration of the present kind framed without reference to a claim for damages of the one kind or the other & purely with a view to the vindication of character & preservation of the reputation of the pltf.
10. The last case cited worth considering is Thomas v. Moore, (1918) 1 K.B 555 : (87 L.J.K.B 577). There was a contention in that case that the declaration as to conspiracy to slander on the part of the several defts. could be made, although damages with regard to the conspiracy had been waived. Pickford L.J dealing with the contention observescthus at p. 567 of the report somewheres about the bottom of the page:
“If what Bowen L.J called the gist of the action is waived, it seems to me that the cause of action is abandoned. But I will not put it that the pltfs. abandoned their cause of action. It may be convenient to have a claim for a declaration as to the rights of the parties in respect of contracts extending over a long space of time, & not to wait until there is a breach to have the rights' determined. But I have never heard of a declaration that a deft, is doing wrong, unless perhaps it is folld. by a statement that damage has accrued or is likely to accrue & that the deft, threatens to continue his wrongful act against the pltf.”
The learned Lord Justice was dealing with a case of tort conspiracy to slander in which as observed by His Lordship earlier in the judgment at; p. 566 (bottom) & p. 567 (top) of the report quoting; from Bowen L.J in Mogul Steamship Co. v. Mcgregor Gow & Co., (1889) 23 Q.B.D 598, it in the damage wrongfully done, & not the conspiracy that is the gist of the action. His Lordship was not dealing with a case of contract in respect to which a declaration as to breach is sought by one party as against the other without a claim of damages. On the other hand, His Lordship's observations recognise the possibility of suits for declarations as to contracts although not of a suit precisely like the present. It cannot be said, of a contract broken, as it can & must be said of the tort of slander committed, that damage is the gist of the action. It may be that damage cannot be waived in the latter case. It does not follow that it cannot be waived in the former. Divorced from the context the last sentence of the locus citatus may seem to warrant its applicability as much to the case of a declaration that the deft, is doing or has done wrong in respect of a contract; as to the case of a declaration that he is doing or has done wrong by way of tort. Read, however, in conjunction with the rest of the passage & in the light of the facts of the case before the learned. Lord Justice & in the context in which the sentence occurs, that sentence, in my opinion, does; not admit of the unqualified interpretation sought to be imposed on it by learned counsel for the applt.
11. The position, therefore, is that there has-been no case cited to me which holds that a suit for a declaration of breach of contract lying in the wrongful dismissal of the pltf. from the deft's service uncoupled with a claim of damages for such breach but conceived solely with a view to the? vindication of the pltfs. character which stands tarnished by such wrongful dismissal is unmaintainable. The passage cited from Thomas v. Moore, (1918) 1 K.B 555 : (87 L.J.K.B 577) even on the unqualified interpretation pressed by learned counsel for the applt. suggests that if the plaint couples the declaration with a statement that damage has accrued or is likely to accrue the suit may possibly be in order. In my judgment, the damage need not compulsorily lie in the loss of remuneration for service or such other pecuniary advantage but may well lie in detriment to reputation which is sometimes far more serious.
12. I do not & cannot subscribe to the argument of learned counsel for the applt. that in every case like this there can only be a suit for damages or a suit for restoration to office & there cannot be a tertium quid in the nature of a suit like the present, although there is no doubt that is ordinarily so. The fact that the pltf. may well have pursued the remedy of an action for damages in tort does not, in my opinion, necessarily preclude the present form of suit if otherwise in order. The pltf. has not accepted the breach, & the circumstance that on account of his procurement of employment elsewhere he has not asked for damages does nob disentitle him to sue as he has done. It is said that the pltf. ought to have asked for damages, however nominal be it a pie at the lowest or at the least. I see no magic about such a claim that its presence in the plaint should give it life & that its absence should leave it lifeless.
13. In my view, the learned Subordinate Judge did not appreciate the legal or the factual position in the case a right in holding that the declaration sought, if granted, would serve as a stepping atone to further litigation by the pltf. to get himself restored to his position before dismissal which must end in a futility. The learned Dist. J. has, on the other hand, appreciated the legal as well as the factual position a right from the standpoint of legal sense as well as commonsense in holding that the declaration, if granted would acts, although ineffective be bring about the pltf's. restoration to office except on the good sense of the master, end in a futility but in a valuable again to the pltf. as he shall have thereby vindicated himself. I need only remark in conclusion that no Ct. ought to be unduly solicitous to throw, out a declaratory suit unless its unmaintainability or the inexpediency of its entertainment is made out in strictissima juris & beyond the slightest shadow of a doubt.
14. In the result this appeal fails & must be & is hereby dismissed with costs. As regards the advocate's fee, having regard to the importance of the questions raised & the length of time taken up by argument I fix it at Rs. 250 in the exercise of my discretion under the Rules.
15. No leave. (The case having been set down for being mentioned, the Ct. made the following Order):
I see no reason to reconsider my order refusing leave in this case.
C.R.K/V.B.B
16. Appeal dismissed.