G H WITTENBAKER Vs. JCGALSTAUN

JUDGEMENT

(1.) The plaintiff in this case claims from the defendants, who are two of the managers of the Armenian College, a sum of Rs. 1,490 by way, of damages under the circumstances to which I shall presently refer. On the 28th February 1912, the plaintiff was appointed as Mathematical and English Master at the Armenian College for a period of three years from the 1st of March 1912, at a salary of Rs. 159 a month with board and lodging. The agreement, which is contained in a resolution signed by three of the governors or managers of the College on the 5th of March 1912, contains one or two other matters to which I need not refer and it concludes with these words: "The security to be paid him (that is, a certain sum to be retained from his salary) when the managers dispense with his services which they are entitled to do for insubordination, insobriety, neglect of duties, etc., on one month s notice." In pursuance, of, that agreement, the plaintiff continued as a teacher at the Armenian College until the month of July of last year. On, the 22nd of July of last year he received verbal notice to terminate his appointment, and on the 25th of July he received, a written notice to terminate his appointment as from the 1st of August. He was offered and paid one month s salary for the month of August, at the rate provided by the agreement, i.e., Rs. 150. He continued to occupy his quarters and received board and lodging until the 24th of August last, without performing any duties of the College and he was tendered and accepted a sum of Rs. 50 in lieu of the loss which he had sustained by losing the board and lodging during the period, one month from the 1st of August. The plaintiff accepted the sums of Rs. 150 and Rs. 50 without prejudice to such rights as he had and which he claims in this suit. The plaintiff s claim of Rs. 1,420 is set forth in detail in paragraph 16 of the plaint. His claim is for Rs. 1,690, i.e., Rs. 900 on account of salary in lieu of notice from the 1st of August 1916 to the end of January 1917 at the rate of Rs. 150 a month, and Rs. 790 for board and lodging, electric current and attendance from the 1st August 1916 to the end of January 1917 at the rate of Rs. 150 a month, and he gives the defendants credit for the sum of Rs. 200 received under the circumstances which I have already stated, making his total claim for Rs, 1,400, as already stated at the commencement of this judgment. The issues which have been agreed upon between the parties, are as follows: first, what notice is the plaintiff entitled to; secondly, to what damages, if any, is he entitled?

(2.) The defendants case shortly put is this, they say that they are not liable to the plaintiff for any sum at all, that they were entitled to give him a month s notice as they did, and pay him a sum of Rs. 150 in respect of salary, and that the sum of Rs. 50, which they have paid him for the loss of board and lodging, compensates him for any loss which he has incurred in that respect, and they sought to show before me that there was a custom or usage in the profession of school-masters, both in Calcutta and in India, establishing that, apart from any definite agreement, the school-master was entitled to give and receive and the school authority was entitled to give and receive one month s notice to terminate the agreement.

(3.) The evidence that was given before me was to this effect. On behalf of the plaintiff Mr. Heramba Chandra Maitra, the Principal of the City College since 1905, stated that according to the custom of the City College and of the schools which he knew, the teacher or the governing body were entitled to terminate an engagement by giving notice to terminate it with the existing session. He said that in his own case he gave notice in April to terminate his employment and that the session ended in May and that that was good notice, and he said in cross-examination that the college must have accepted a month s notice from him and that if the college gave him notice in April to terminate in May, the notice would be sufficient as the session ended on the 31st of May. He also stated in cross-examination that he knew nothing of European schools. The plaintiff also gave evidence and, with regard to the question of the custom, he stated in cross-examination that he did not know of any custom in connection with the Armenian College that teachers should receive a month s notice, and be said: "I am prepared to say that one month s notice is not given except in cases of misconduct." He also gave evidence upon the question of damages for loss of board, and he said that at the college he occupied a large room and had the use of the school dining room, the school servants, electric lights and fan, and received board and lodging and had the use of a godown for a private servant of his own, and he estimates that he could not have got accommodation similar to this or suitable accommodation for his position under a less sum than Rs. 150, including therein all those things which I have mentioned. Then on behalf of the defendant, Mr. Joseph Samuel Zemin gave evidence. He is Professor of English literature at St. Paul s College in this city, and is also a Professor at the Central College in Cornwallis Street. He was previously, he stated, at the Doveton College for thirty-one years, part of the time as a junior master and part of the time as Head of the College, and he stated that while he was there, the services of masters were dispensed with other than for misconduct, and that in those cases a month s notice was given and received when there was no special contract or agreement. He gave one or two specific instances. He said: In Calcutta itself I have no personal knowledge of the length of notice that is usual in schools", and in cross-examination he said that with regard to the cases in which notice had been given that it was perfectly understood, when the persons came to the college, that one month s notice should be given to terminate their appointments. He said this was one of the terms of their employment. Then Mr. Kirkpatrick gave evidence. He spoke from 33 years experience in the Punjab, i.e., in Ludhiana, Amritsar, Delhi and Simla, and he said that so far as he was aware it was always the custom that one month s notice should be given and received. Then Mr. Moreno, the present Principal of the Armenian College, was called and he spoke from experience both of the Armenian College and as head of the C.M.S. School and as Principal of the Kidderpore Institution, and he stated that his understanding of the custom was that, in the absence of an agreement, a month s notice is usually given and accepted, and he stated that when he ceased to reside upon the college premises he accepted from the governors an allowance of Rs. 50 a month in lieu of board and lodging. Then we had the evidence of Mr. Galstaun, who is one of defendants, and of Mr. David, who is the other defendant, both of them being managers of the college at the present time, and they stated that in their experience it had been the custom among the masters of the Armenian College to take and receive one month s notice to terminate their engagements, and with regard to the sum of Rs. 50 which they tendered to the plaintiff in lieu of board and lodging, they stated that they arrived at this figure upon the basis of what it would cost to obtain suitable accommodation at the Young Men s Christian Association in Corporation Street. Mr. David stated that, for full board and lodging and the use of a separate room including electric light and fan and the general use of other rooms there the charge would be Rs. 35 a month, but that, of course, no profit was being made by the Society in respect of these charges.