KALYANASUNDARA NADAR AND ANR. Vs. MUTHURAMAN

JUDGEMENT

(1.) THE manager and correspondent of the Asoka Vidyalayam Higher Elementary School, Kachinavilai, and the school represented by him are appellants, in this second appeal. The appeal arises out of an action by the respondent herein, a higher grade trained teacher and permanent employee of the school whose services -were terminated by the management. The respondent as plaintiff averred in his plaint that the order terminating his services was illegal, unjust and arbitrary and prayed inter alia for a declaration that he continued or must be deemed to continue as the assistant teacher of the school, for his reinstatement as a teacher and for a money decree directing the management to pay him the salary and allowances attached to the post which had accrued. The learned District Munsif, Servaikuntam, decreed the suit as prayed for giving a declaration that the plaintiff continues or must be deemed to continue as an assistant teacher of the school and consequently a mandatory injunction directing the defendants to reinstate the plaintiff as an assistant teacher. He assessed the damages for the period from 1st October, 1959, to 1st June, 1961, at the sum of Rs. 1,472 and granted a money decree for the said amount. On appeal the learned Subordinate Judge of Tuticorin confirmed the decree.

(2.) THE main defence for the management on the merits of the case was, that the plaintiff voluntarily left the service of his own accord on 30th September, 1959, and that the management under the special circumstances of the case even desisted from insisting on a three months' notice in accordance with the rules which govern the service. It was stated that having got himself relieved from the service at his own request, he again approached the defendants for re -employment and when this was turned down he came out with a case that his services were terminated wrongfully. The service register of the plaintiff contains an entry that the plaintiff was relieved on 30th September, 1959, at his own request. The plaintiff's signature may be seen on the page and may be related to the entry. The plaintiff's case with reference to this entry and his signature thereon was, that his signature was obtained with reference to an entry on the same page in an earlier column relating to an increment awarded to him, and that the entry relating to termination of his services at his own request was a subsequent interpolation, behind his back. It is his case that a fraud has been played upon him by the management. The plaintiff was employed in the school as a permanent teacher on 1st June, 1957. According to him when on 30th September, 1959, he was informed by the new headmaster of the school that his services had been terminated with that date and that he need not attend, the school from and after 1st October, 1959, he immediately sent an appeal to the District Educational Officer, Tirunelveli South, complaining of the improper termination of his services. While the District Educational Officer dismissed the plaintiff's appeal on further appeal the Divisional Inspector of Schools, Madurai, set aside the order of the District Educational Officer and directed the management to reinstate the plaintiff. As the defendants in spite of the order of the Divisional Inspector of Schools passed on 17th September, 1960, failed to reinstate the plaintiff, after repeated demands he filed the suit out of which this second appeal arises on 23rd June, 1960.

(3.) THE plaintiff does not rest his case on the order of the Divisional Inspector of Schools directing the management to reinstate him. It is conceded on both sides that the order is purely directory and cannot be enforced by a suit. As pointed out by Anantanarayanan, J., (as he then was) in Ramaswami v. State of Madras : (1962) 1 MLJ 269 , the only penalty the management will have to face by not giving effect to the order, may be the withdrawal of recognition or of financial aid by the State. On the merits the Courts below have accepted the plaintiff's case and held that the broad probabilities and the subsequent conduct of the parties as borne out by the immediate step the plaintiff had taken to seek redress clearly established that the plaintiff had affixed his signature only in proof of his knowledge of one event namely, the grant of an increment with effect from 1st June, 1959 and not in acknowledgment of correctness of the entry relating to termination of his services with effect from the evening of 30th September, 1959. This finding is purely one of fact and is not open to challenge in second appeal. It is manifest that the management has played a fraud on the teacher. The management had the custody of his service register and behind his back having taken his signature for one purpose, they had interpolated in the register that he was relieved from his service at his own request. The effect of the entry would not be to terminate his service. Fraud vitiates the action and it must be deemed to be non est and a nullity. But the entry is only evidence of the termination. There is evidence that the plaintiff was refused permission to attend to his service on 1st October, 1959. Even on 30th September, 1959 he had been informed that his services were terminated from that date. The plaint proceeds on the basis that there was an illegal and arbitrary termination of his service on 30th September, 1959. On this state of facts, the contention now urged before me in second appeal on behalf of the appellants is that the relationship between the parties being contractual, there could be no mandatory injunction for reinstatement nor could there be a declaration granted that the plaintiff continues in the service of the defendants. It is contended that at the most, if the termination of his services was wrongful, the plaintiff would be entitled to claim damages, and that on the facts of the case he would be entitled to just three months' salary as damages. The argument in this form had been addressed even in the Courts below but it was overruled. The Courts below would hold that in the circumstances the purported termination is no termination at all.