Thuraisamy and Thailpayar.
1943Present: de Kretser and Wijeyewardene JJ.
THURAISAMY, Appellant, and. THAILPAYAR, Respondent.
231—D. C. Point Pedro, 1,300.
Teacher—Wrongful dismissal—Claim for salary in lieu of notice.
An uncertificated teacher in the circumstances of this case is entitledto no more than two months’ salary in lieu of notice before his servicesare discontinued.
^i^PPEAL from a judgment of the District Judge of Point Pedro.'
A. Rajapakse (with him V. F. Gunaratne), for defendant, appellant.31 o appearance for plaintiff, respondent.
Cur. adv. vult.
WUEYEWARDENE J.—Thuraisamy and Thailpayar.
April 8, 1943. Wueyewardene J.—
The plaintiff, an uncertificated teacher, filed this action against thedefendant, the manager of a school, for the recovery of Rs. 2,000 as.damages sustained by him in consequence of the defendant discontinuinghis services without notice and without reasonable cause.
The District Judge held that the discontinuance was wrongful andawarded the plaintiff Ks. 620 and costs in that class. He assessed thedamages on the following basis : —
For six months’ salary in lieu of notice..120 '
•2.“ For opportunity lost by plaintiff ”_..300
3. “ For the postponement of plaintiff’s right to getincrements in his, salary ” caused by his dismissal .. • 200
The evidence shows clearly that the defendant was not actuated byany improper motive in discontinuing the plaintiff’s services. Thedefendant was compelled to act as he did owing to the situation created,by the Department of Education issuing to him somewhat, inconsistentand irreconcilable instructions with regard to the appointment of theplaintiff and the subsequent discontinuance of his services. . Thedefendant had to carry out the orders issued to him by the Departmentin 1940, as, otherwise, his school ran the risk of being deprived of theyearly grant from Government. The defendant made every . effort . toretain the services of the plaintiff and the plaintiff was aware of it. Butthese facts do not avail the defendant in resisting the plaintiff’s claim..He lias committed a breach of contract and he is answerable in damages.
I shall, therefore, proceed to consider the question of damages.
The plaintiff was employed about October, 1936, on a salary of Rs. 35a month as an uncertificated teacher. He was willing to be employedfor three years as he knew the defendant was taking him in place ofanother teacher, one Mr. Samundi, who had gone on study leave for a3-years’ course at a training school for teachers. As the Department ofEducation, however, was not prepared to approve of the appointmentfor a definite period of three years, the plaintiff was employed as a“ permanent ” member of the staff. After some time – the plaintiff’ssalary was reduced to Rs. 20 a month in accordance with the DepartmentalRegulations as the plaintiff continued to remain an uncertificated teacher.When Mr. Samundi concluded his 3-years’ course, the Department ofEducation insisted vn the defendant re-employing him at the school asfrom April 21, 1940, and the defendant then gave notice to the plaintiff,on March 29, 1940, determining the plaintiff’s employment as fromApril 21, 1940. Under the Roman Dutch Law which is applicable to thtpresent case an employee is entitled to a’ reasonable notice and what itreasonable notice will depend on the circumstances of each particulaicase (Nathan Vol. 2, page 902). Several decisions of this Court Wertcited to us on the question of reasonable notice. But where a decisiondepends upon facts, a variation in facts deprives the alleged precedent of. value, and it is useful only as an illustration of the way in which otherjudges considered a case of this kind; In the present case there is
WIJEYEWARDENE J.—Thuraisamy and Thai Ip ay ar.
■evidence to show that the plaintiff was willing to be employed as a teacheron an estate school or as a minor clerk in the Irrigation Department. Ithink that in the circumstances of this case I am treating the plaintiffgenerously when I hold that he' should have been given two months’notice. The plaintiff would, therefore, be entitled to claim Rs. 40 astwo months’ salary in lieu of notice.
I find it difficult to understand what was meant exactly by the DistrictJudge when he awarded a sum of Rs. 300 as damages for “ the opportunitylost by the plaintiff ”. It is possible that the judge was thinking of thefollowing piece of evidence given by the plaintiff :—
“After teaching three years in a school, an .uncertificated teacher isexpected to go on study leave and qualify himself as a trained teacherat a training centre. As a result of my discontinuance, I have lost thechance of training myself. I have not lost the right to get myselftrained. I have lost the opportunity of getting employment afterbeing trained. A teacher going into training resumes his course in theschool after the period of training is over. ”
Now according to the plaintiff’s evidence the only examination theplaintiff has passed is the Junior School Certificate examination.During the period of his employment under the defendant he sat for theTraining College Entrance Examination but failed to secure a pass. Hewas therefore not qualified either to enter the Training College or aTraining School, as under Regulation 25 of the Departmental Regulations(D 8) only those who had a Senior School Certificate are eligible foradmission to a training school. Apart- from this, i do not think it rightto take into consideration this so called “ lost opportunity ” after thecourt had reached a decision on the question of reasonable notice. Ifthe plaintiff had been given adequate notice, he could not have claimeddamages on the ground of “lost opportunity”. The period of notice isso calculated as to ensure the employee getting a reasonable opportunityof securing another employment. If the plaintiff found an employmentas a teacher after getting reasonable notice, then there could have beenno question of compensation for “ lost opportunity ”, as he would havebeen then in a position to return to his new school after a course oftraining at a training school. If he failed to get a new employmenthfter getting reasonable notice he could not have made a claim for■damages for “ lost opportunity ”. It would have meant that he waspermitted to make a claim for damages as he failed to secure a newemployment though he had been given reasonable notice. The positionbecomes clear when it is realized that the period of reasonable notice is'calculated after taking all the relevant facts into consideration and that •the period so fixed is sufficient in the view of the judge for the employeeto get a suitable employment elsewhere.
The District Judge has awarded Rs. 200 as damages on the thirdground given by him. He has erred in doing so as the plaintiff being anuncertificated teacher was not entitled to any increments. If the DistrictJudge had in view the increments which the plaintiff might get at afuture date after the plaintiff had qualified himself for admission at a04/23
288WIJEYEWARDENE J.—Thuraisamy and Thailpayar.
training school or the Training College and completed his three years’course of training successfully then clearly such increments are tooremote to be taken into consideration.
On the above findings the plaintiff is entitled to Rs. 40 and the costswhich he would have got in a contested action in the Court of Requestsfor the recovery of Rs. 40. The defendant is entitled to the excesscosts incurred by hint in having to contest a claim for Rs. 2,000 in theDistrict Court. The plaintiff will have to pay the defendant in addition,the costs 'of this appeal.
I set aside the decree of the District Court and order decree to be-entered as directed above.
de Kbetser J.—I agree.