DEVAR AND CO Vs. C RADHAKRISHNA NAIDU

JUDGEMENT

(1.) This appeal is against the judgment and decree of the learned Principal City Civil Judge, partially decreeing the suit brought about by the plaintiff claiming arrears of salary, bonus and dearness allowance.

(2.) The plaintiff was employed as a driver under the defendants. The defendants are a firm of merchants carrying extensive business in timber in several places in the State of Madras. The allegations of the plaintiff are that, while he was serving the defendants from February 1943 to June 1947 he was discharged from service without cause and without notice on the 10th June 1947. He, therefore, filed the suit claiming arrears of salary from 1st June 1947 to 10th June 1947 and three months' salary for wrongful dismissal. He also claimed dearness allowance and bonus for the period during which he served under the defendants. He alleged that in the accounts maintained by the defendants, the plaintiff was credited with certain sums on account of dearness allowance, and bonus for the years 1943-44, 1944-45 and 1945-46, and though these sums were credited to the account of the plaintiff they were not paid, notwithstanding the fact that there were entries to the effect that those sums were paid to the plaintiffs.

(3.) The defendants filed an elaborate written statement. In that written statement they denied that there was any agreement between the defendants and the plaintiff for payment of dearness allowance, but all the same, the defendants admitted that, as a matter of fact, ex gratia, they gave the staff, including the plaintiff, dearness allowance calculated at the rate of one third of the month's salary from April 1943 onwards in addition to the monthly salary to which alone they were entitled in law. They also denied that there was any agreement that the dearness allowance formed part of the salary and was a term under the agreement of service, but they, nevertheless, averred that in fact dearness allowance was paid to the plaintiff, though not month by month, but in lump sums as per particluars given in the statement of accounts appended to the written statement. With regard to the claim for dearness allowance in respect of the year 1946-47 by the plaintiff, the statement of the defendants was that no dearness allowance was allotted or intended to be paid to the plaintiff for the year 1946-47, and that consequently nothing had been paid to him in that respect, nor was he entitled to the payment. The defendants did not admit the legal position that by reason of the credit entries in the account books of the defendants in regard to the dearness allowance, the said entries had in law the effect of transferring to the plaintiff the right to such amounts, for the reason that they did not form part of the contract of service and that, therefore, such payments were intended to be made only on gratuitous basis. The defendants further denied the allegations of the plaintiff in regard to the payment of bonuses to the plaintiff or other employees. They nevertheless admit that, as they thought it fit that some bonus should be given, they had voluntarily and gratuitously declared bonuses and paid the same to the staff including the plaintiff, as per particulars mentioned in the statement of accounts appended to the written statement, and that no bonus was allowed to the plaintiff for the year 1946-47 as claimed by him. They also make the further allegation that the plaintiff did not discharge his duties to the satisfaction of the defendants, but nevertheless the payment of bonus was made in favour of the plaintiff also because it was not thought desirable to make any exception in the case of the plaintiff when other members of the staff were being paid, and so out of pity and consideration, to the plaintiff, he was also paid bonus, and that the dismissal was not wrongful and that the plaintiff was dismissed for the reason that he did not discharge his duties satisfactorily.