KHIROD RANJAN DAS Vs. SYED MOHAMMAD WASY

JUDGEMENT

(1.) This is an appeal by defendant 4 of a suit instituted by the plaintiff-respondent for recovery of damages for wrongful dismissal. The plaintiff was a travelling ticket examiner under the B.N.W. Railway. It appears that an application purporting to be on behalf of the residents of Digwara in the district of Saran, was submitted to the authorities of the railway complaining against the conduct of the plaintiff. The main allegation against him was that he was carrying on an intrigue with a certain lady doctor who was residing in Digwara Bazar and that his conduct, gave annoyance to the residents of the village. This petition was in due course sent for inquiry to defendant 4 who was the Traffic Inspector under the railway. He submitted a report in which he referred to some previous dereliction of duty by the plaintiff and reported that the allegation made against him in the petition was true, adding that on the night of 11 March 1931, he had himself seen the plaintiff getting down from a train at Digwara and had a talk with him, thereby supporting the allegation in the petition of his paying visits to Digwara. The Traffic Superintendent after making some inquiry reported for the dismissal of the plaintiff from the railway service and thereupon the Traffic Manager of the Railway dismissed him with effect from 26 March 1931. The plaintiff thereupon after serving notices brought the present suit for recovery of damages amounting to Rs. 900 for loss of service by wrongful dismissal. His suit was against (1) the Railway Company, (2) the Traffic Manager of the Railway Company, (3) the Traffic Superintendent and (4) the appellant who was Traffic Inspector.

(2.) The trial Court held the dismissal to be wrong and that the report of defendant 4 about the plaintiff being at Digwara on the night of 11 March 1931, and the charge of his intrigue with the lady doctor were false, and that on the night of 11th March 1931, he was working on the section between Sonepur and Muzafferpur. It therefore gave the plaintiff a decree for Rs. 25 only, being his one month's salary to which he held him entitled to in lieu of notice. It dismissed the suit against the remaining defendants and ordered the parties to bear their own costs. The plaintiff appealed, and the lower Appellate Court, over and above the decree granted by the trial Court against the company, has given the plaintiff a decree for damages amounting to Rs. 150 with costs in both the Courts against defendant 4, the appellant, who has preferred this second appeal. The main points urged on behalf of the appellant are that no separate decree for wrongful dismissal of the plaintiff could be passed against the appellant nor could a decree be passed for libel contained in the report as the occasion when the appellant is said to have libelled the plaintiff was privileged. The first branch of the argument of the learned advocate is based upon the principle of the law of England that a judgment against the principal bars an action against the servant. He relied upon the decision in Brinsmead V/s. Harrison (1872) 7 C.P. 547 and contended that though by 25 & 26 Geo. V, c. 30, the law in England has been changed by statute, the Common law of England still applies to this country as a principle of justice, equity and good conscience till the Legislature of this country intervenes. He relied upon the case in Hemendra Kumar Mullick V/s. Rajendro Lall Moonshee (1877) 3 Cal. 353.

(3.) Now the plaintiff in this case has two grievances. One is that he was wrongfully dismissed and the other is that he was libelled by the appellant in his report submitted to the Traffic Manager. The two stand upon two different footings. The-measures of damages for the two wrongs and the liability for them are separate and different. The defendants cannot be said to be joint tort-feasors either in respect of the wrongful dismissal or in respect of the libel. Persons are said to be joint tort-feasors when their respective shares in the com-mission of the tort are done in the furtherance of a common design: Clerk and Lindsell on Tort, p. 59. In this case there is no allegation that the defendants had a-common design to dismiss the plaintiff or to libel him. I shall therefore deal with-them separately. Regarding the first, the gist of the wrong is the dismissal of the plaintiff without just and lawful cause. The liability is of the railway company and of the Traffic Manager, defendant 2. Defendant 4 is also liable for bringing, about that dismissal. Now it having been found by the trial Court that the plaintiff was dismissed from a permanent service without notice, it was for the defendants, who are liable for this wrong, to show that the dismissal was for just and lawful cause. The Court has found that the charge against the plaintiff was not true and therefore the. dismissal was wrong. The; measure of damages in such a case independent of damages for the loss of character is 1 the amount of wages which the plaintiff; was prevented from earning by reason of his wrongful dismissal: Halsbury's Laws of England, Vol. 22, page 167.