1. The defendant is a District Council. The plaintiff is one of its teachers on a salary of Rs. 44 a month. On 28th April 1937 the plaintiff was suspended and was subsequently reinstated on 12th June 1937. The claim is in respect of the plaintiff's salary during the period of suspension which salary the defendant refuses to pay. The facts are as follows: A report was made against the plaintiff by a member of the District Council. It is not clear when the report was made nor is it clear when the offence to which that report relates was committed. All that we can gather is that the report and the offence were made and occurred some time before 24th April 1937. The offence complained of in that report was that the plaintiff had abused the office bearers of the Local Board and the District Council. The nature of the abuse was not set forth. The Vice-Chairman of the District Council acting on this report passed orders suspending the plaintiff on 28th April 1937. The plaintiff was thereupon asked to submit an explanation. He did so and an inquiry appears to have been made because the next thing that we know is that on 10th June 1937 the School Board of the District Council confirmed the action of the Vice-Chairman suspending the plaintiff and at the same time ordered the plaintiff to rejoin his duty on 12th June 1937.
2. The plaintiff rejoined.
3. He had originally been attached to the Takarkhed school but on re-appointment he was posted to Khartalegaon. While there another complaint was made against him in respect of another matter and the District Council thereupon passed a resolution on 5th August 1938 to the effect that the plaintiff should be degraded down to a salary of Rs. 15 a month and that if he did not accept the same his services should be dispensed with. On 16th August 1938 the School Board of the District Council passed a resolution which sets out the resolution of the District Council itself and resolved that the plaintiff be degraded in accordance with the resolution of the District Council and also added that “the period of suspension be treated as a suspension period without allowance.” It is not clear what period this refers to but it appears to have been assumed throughout that the period referred to is the period of suspension which I have mentioned above. This matter then went to the Deputy Commissioner and he passed an order on 3rd April 1939 setting aside the orders of the District Council. It is contended on behalf of the District Council that it does not know anything about this order of the Deputy Commissioner as it was not referred to in the lower Court. I find, however, that it is a portion of Ex. D-1 which has been placed on record wholesale. No trouble has been taken to separate out any portion of this voluminous document and it is clear that the whole of it has been tendered in evidence. In any case, reference has been made indiscriminately to portions of this document. In the circumstances, seeing that it is the defendant's own evidence and seeing that it is a copy of an official document sent by the Deputy Commissioner himself to the Chairman of the District Council, I see no reason why I should not take judicial notice of it. It is agreed by both sides that there is no written agreement of service in this case. The learned counsel for the applicant has not been able to refer me to any laws or rules relating to the engagement of teachers and the conditions of their service by the District Council. He asks for an adjournment but, in my opinion, the case has no merits and I see no reason why the matter should be kept pending any longer. It is argued in the first place on behalf of the District Council that the civil Court has no jurisdiction because a servant of the District Council is on the same footing as a servant of His Majesty and holds office at pleasure, consequently the District Council being on a par with His Majesty in this respect the jurisdiction of the civil Court is barred. For these wide and sweeping claims, reliance is placed on AIR 1940 Lah 71, (’40) 27 AIR 1940 Lah 71 , 187 IC 540, Jhang ILR (1938) ALL 252 (’38) 25 AIR 1938 All 276 , 175 IC 875 , ILR (1938) All 252 , 1938 ALJ 351, Agra and ILR (1937) Mad. 532. (’37) 24 AIR 1937 PC 31 , 166 IC 516 , 64 IA 55 , (1937) Mad 532 (PC)
4. It is not necessary for me to decide in this case whether the wide and sweeping propositions which are contained in the argument addressed apply in all cases where there are rules or regulations framed by Government. That was the position in the Allahabad case, and so far as the Privy Council case is concerned, it is a case in which a servant of the Crown was concerned. It may be that if there is a special statute, or if rules are framed under an Act by Government which set out that a servant of a local body shall hold office at pleasure, then the rule enunciated by their Lordships of the Privy Council in the case of servants of the Crown will apply. But in the present case no such rules have been brought to my notice, no such rules were pleaded and no such rules were produced in the lower Court. So far as the Lahore case is concerned, I am not clear whether there are such rules in the Punjab or not. If there are then as I say the matter is distinguishable. If however the learned Judge who decided the Lahore case quoted above meant to state that every employee of a local body was on the same footing as a servant of His Majesty, I am with respect unable to agree. A local body has no more authority and power over its servants and employees than any other person or body unless such powers are expressly conferred by statute. The matter therefore must be governed along the ordinary lines of master and servant.
5. It is to my mind clear that an ordinary master not given special powers by statute or by some rule or law flowing from a statute has no power to suspend a servant. He can either dismiss him or continue him in service on fresh terms. In either case the servant is entitled to be paid up to the date of dismissal in the one case or of continuance in service in the other. This rule is enunciated in AIR 1938 Cal 759 (’38) 25 AIR 1938 Cal 759 , 180 IC 918 , ILR (1939) 1 Cal 46 , 42 CWN 1186 , 68 CLJ 320 and AIR 1921 Cal 346. (’21) 8 AIR 1921 Cal 346 , 60 IC 756 , 33 CLJ 336 Reliance was also placed on 30 NLR 173. (’33) 20 AIR 1933 Nag 247 , 147 IC 571 , 30 NLR 173 The Nagpur case is not quite in point, but it is of assistance in this way. It decides that a servant is entitled to be paid his wages up to the date of dismissal even if he has not worked in the interval. A servant who is suspended is clearly not working in the interval. If therefore a servant who is dismissed is entitled to be paid his wages up to the date of dismissal, it is clear that a servant who has not been dismissed but continued in service has a right to similar treatment.
6. In an ordinary case of master and servant, a master who dismisses his servant has to justify his action in a Court of law if the servant brings an action for wrongful dismissal. If the servant succeeds in showing that the dismissal was without justification, he is entitled either to his wages or to damages. If a master has no power of suspension, then he can only justify a refusal to pay the wages during the period of suspension on the ground that he had a right to dismiss the servant because of some wrongful action justifying dismissal or that, instead of exercising the right he came to a fresh agreement with the servant under which the servant rather than be dismissed agreed to forgo his salary during a certain period and agreed to continue to serve on fresh terms under a fresh contract. But it would be necessary for the master to prove in such a case first, that there is this fresh agreement, and secondly that he was justified in dismissing the servant and thus forcing him into a fresh engagement. Not only have these matters not been proved but the order of the Deputy Commissioner shows that there was never at any time any justification for the order of suspension because no proper enquiry was made. That in turn means that there is no proof of any misconduct on the servant's part and as I have said there is no vestige of proof of such misconduct in this case.
7. Apart from that it is clear from the order of 10th June 1937 that the plaintiff was reinstated in service on 12th June 1937. No conditions were imposed, and the plaintiff rejoined service on the strength of that order. There was therefore no fresh contract when the plaintiff rejoined. There was no undertaking by him or agreement that he would forgo his salary during the period of suspension. There was no agreement that he would continue to serve on a lower salary. The orders in respect of these were not passed till much later, namely on 5th August 1938, but then it was too late, quite apart from the fact that they were passed in respect of another matter. Once a master has condoned any misconduct which would have justified dismissal or a fine, he cannot after such condonation go back upon his election to condone and claim a right to dismiss him (servant) or impose a fine or any other punishment in respect of the offence which has been condoned. This rule is to be found in AIR 1925 Cal 87 (’25) 12 AIR 1925 Cal 87 , 86 IC 310 and in many other cases? The reason is obvious. A servant even though he misconducts himself has a right to seek other employment, and it is proper and just that he should be given the earliest opportunity of seeking such fresh employment. As time goes by and he grows older, his chances of obtaining employment grow less and less. Therefore the rule is that a servant must be dismissed at once or given the chance of serving upon a fresh contract. If no such terms are imposed then clearly new terms cannot be imposed at some later date after the election to condone has been, made, for the simple reason that had these conditions been put forward at the time, the servant might have preferred dismissal and the opportunity of obtaining other service. That is the reason underlying the rule which, in my opinion, is a fair, just and proper one. For all these reasons, it is clear that the order of the lower Court is right. The application is therefore dismissed with costs. Counsel's fee Rs. 15.
D.S/R.K
8. Application dismissed.