Nitindra Nath Bose vs National Rolling and Steel Ropes Ltd.

Hazra, J.—Nitindra Nath Bose (shortly I shall call him ''Bose'') was an employee of National Rolling and Steel Ropes Ltd. (shortly I shall call ''the company''). The registered office of the company is at Nicco House, Hare Street, Calcutta. In or about November 1943 Bose joined service as an employee of the company''s sister concern ''India Rolling Mills Ltd.'' at an initial basic salary of Rs. 250 per month. He was designated as Production Manager. In or about July 1946 he was transferred to Hindusthan Wire and Metal Products Ltd. at a basic salary of Rs. 325 per month. In July 1950 his monthly basic salary rose to Rs. 550 per month. Bose became the Factory Manager of M/s. Conduit Pipes Ltd. He was deputed as ''special officer'' for organising another sister concern known as M/s. National Pipes and Tubes Co. Ltd. He was posted as Works Manager of Hindusthan Wire and Metal Products Ltd. in March 1952 and his salary rose to Rs. 600 per month.

In June 1955, he was posted as Assistant to the Superintendent, Wire Mills of the company. In November 1955, Bose was sent to England by the company as trainee for specialised training in manufacturing steel wires. After his return from England in October 1956 Bose was appointed Assistant Superintendent of the Wire Mills of the company. His monthly basic salary at that time was Rs. 750 per month. He was promoted as Superintendent of Wire Mills of the company and was posted at the factory of the company at Shyamnagar in or about 1959. Thereafter, by stages his salary rose up to Rs. 1,050 with effect from January 1968. Thereafter, some events happened which are important for the purpose of this case.

On September 29, 1967, Sri S.C. Roy, a director of the company, addressed a letter to S.B. Firke, Acting Works Manager, Shyamnagar Works, 24-Parganas. This was a confidential letter relating to production in Wire Mills. There are certain figures given in this letter relating to production scrap and loss of high tension wires and mild steel wires for the years 1965-66 and 1966-67. In this letter it is stated as follows:

For H.T. wires the scrap and loss percentages for the year 1966-67 appears to us to be abnormally high.... The management is greatly perturbed at the declining percentage''s of production and we would like to have your views and comments regarding the reasons of such high percentages of loss and scraps. We are enclosing a duplicate of this letter which may kindly be handed over to the Wire Mill Superintendent for his study and comments. After the report from the Wire Mill Superintendent is received, we hope you would kindly discuss the matter with him and let us have a reply as early as possible.

Bose got a copy of this letter dated September 29, 1967, through S.B. Firke and discussed with him on the technicalities about these matters. Bose made a note or pen duplicate of the points which he wanted to put up before his immediate boss Mr. Firke, the acting Works Manager.

The pen duplicate is dated October 18, 1967. Thereafter on October 23, 1967, Firke addressed a letter to Sri S.C. Roy in reply to his letter dated September 29, 1967. In this letter Firke mentioned that he had discussion with the Wire Mill Superintendent (Bose) regarding the abnormal scrap and loss percentage during the year 1966-67. In this letter Firke stated, infer alia,

as regards scrap percentages, the Wire Mill Superintendent is of the view that this has increased because of the locally procured high carbon wire-rods which were breaking during processing, resulting in bare scrap...regarding the loss percentage, the Wire Mill Superintendent also agrees that it is abnormal, but justifies it oh the grounds of heavy rust, scales'' and oxides, since the wire-rods were lying in the open for a long time....

This is a confidential letter written by Firke to the Director, Sri S.C. Roy, on the basis of the note prepared by Bose.

Thereafter, according to Bose, on January 19, 1968, he was suddenly asked by D.P. Sahai, Technical and Commercial Manager, in the presence of S.B. Firke, Acting Works Manager, to seek a job elsewhere stating that the company was suffering a loss. This is the case of Bose but this allegation is denied by the company.

Thereafter, certain incidents happened on January 31, 1968. Both parties gave different versions of what happened on January 31, 1968 and I shall deal with it later on. But on the next day, admittedly, a letter dated February 1, 1968, was'' signed by Bose by which he expressed his desire to retire from the service of the company with effect from May 1, 1968 and stated that this letter might be treated as three months notice of his retirement. This letter was accepted by the company on February 2, 1968.

On February 26, 1969, this suit was instituted by Bose claiming damages and other dues for his wrongful dismissal amounting to a total sum of Rs. 1,91,586 or, in the alternative, an enquiry into the losses and damages suffered by the Plaintiff for his wrongful dismissal and a decree for such sum as may be found due on such enquiry and also for such other and further sums of money as to this Court may appear just and proper.

It is necessary to state the case which Bose has made out in the plaint.

The cause of action of the Plaintiff on which the suit is founded against the Defendant company will appear from paras. 16 to 23 of the plaint. Briefly stated the same is as follows:

In or about September 1967, Plaintiff Bose learnt that management of the Defendant company was alleging declining percentage of production and material losses in the Wire Mills. Motivated attempts were made to malign the Plaintiff and to make a scapegoat of him to cover up mismanagement and bunglings within the management itself. The Plaintiff was called upon to give his study and comments on the alleged losses. Certain curious revelations were detected by the Plaintiff who personally called the attention of the Defendant and specially of Sri S.C. Roy, the Managing Director, who thereby appeared rather enraged and determined to terminate his service by any means and bent upon getting rid of him anyhow by hook or crook. On January 19, 1968, he was asked by D.P. Sahai, Technical and Commercial Manager of the Defendant, in the presence of S.B. Firke, Acting Works Manager, to seek a suitable job elsewhere as the management had already decided anyhow to get rid of him on the alleged plea that the Defendant company was suffering loss. He was asked by the said D.P. Sahai to see the Managing Director Sri S.C. Roy at his said office. He was shocked and stunned to learn of such dishonest intention of the Defendant, as aforesaid, particularly at a time when he was in a very embarrassing, situation due to his daughter''s marriage which was just settled and was to take place very soon and for various other family troubles. On discharge of his service, he would have to leave the residential quarter provided by the Defendant and he had no other place to live in. These facts completely upset him and had shaken his nerves. On January 31, 1968, he was made to call at the office of the Defendant company at Nicco House, where the Managing Director Sri S.C. Roy told him that the Wire Mills were running at a loss and that the Wire Mills would have to close down. He placed before him the facts and materials at his disposal and gave his study and comments to prove the incorrectness of the said allegations. However, the Managing Director Sri S.C. Roy brushed it aside and called upon him to seek service elsewhere. All these happened in the presence of two other directors, namely Sri J.N. Bhan and Sri S. Singh Ray and the Technical and Commercial Manager D.P. Sahai, who all exercised undue influence and coercion on the Plaintiff and caused him to tender the purported letter of retirement dated February 1, 1968, against his will in circumstances of terrific pressure and strain which broke his nerves and mind and made him do as commanded by them. He helplessly bowed to their wishes in the utmost agony and pain.

D.P. Sahai himself drafted the text of the letter of retirement and called upon him to type it out and persuaded and prevailed upon him to sign it and the Plaintiff, accordingly, did as he was commanded to do under duress.

The said letter of retirement having been procured under the aforesaid circumstances at the dictation and command of the Defendant is not binding on the Plaintiff. The Defendant acted in furtherance of a motivated plan to terminate the Plaintiff''s services under colour of retirement of resignation in procuring the said purported letter from him as aforesaid. Thereafter with effect from May 1, 1968, he was thus wrongfully dismissed under mala fide colour of the said purported retirement when he was only of the age of 54 years.

This is the case made by the Plaintiff in the plaint which he filed on February 26. 1969.

The Defendant company denied the claims of the Plaintiff in the written statement filed on June 12, 1969. In the written statement the Defendant company stated, inter alia, as follows:

On or about September 29, 1967, a letter marked ''confidential'' was sent from the head office of the Defendant company to S.B. Firkc, Acting Works Manager of the Defendant company at Shyamnagar Works, setting out a comparative statement of production scrap and loss and percentages of consumption for the 1966-67 and 1965-66 years in respect of H.T. wires and mild steel. In the said letter the management was greatly perturbed at the high percentage of loss and scraps and declining percentage of production and invited the views and comments regarding the same. The said letter was duly made over to the Plaintiff Bose by the Acting Works Manager of the Defendant company for his comments and views. The explanation given by the Plaintiff Bose through the Acting Works Manager was far from satisfactory. On or about January 31, 1968, the Plaintiff met the Managing Director of the Defendant company at a meeting and he could not give any satisfactory reason or explanation for the aforesaid high percentages of loss and scraps or the said declining percentages of production and wanted to resign from his post. On or about February 1, 1968, the Plaintiff in writing gave three months'' notice to the Defendant of his intention to resign and requested to be relieved with effect from May 1, 1968. This letter dated February 1, 1968, was duly accepted by the Defendant company.

On February 6, 1968, the Plaintiff handed over the charge. He was permitted to continue to occupy the quarters which were allotted to him for the month of May 1968 at a rent of Rs. 312-50 per month although he should have vacated the same on or before May 1, 1968. He received all amounts due to him. In addition, the Defendant company agreed to pay one month''s pay and bonus as declared by the Defendant company on December 1, 1968. The Plaintiff voluntarily and in his own accord retired or resigned from his employment as aforesaid. There was no undue influence or coercion or duress by the Defendant company. The Plaintiff had taken and enjoyed fully all the advantages and benefits granted and extended to him at his request and resulting from his resignation as aforesaid.

The claims of the Plaintiff in this suit are denied as mala fide. The Plaintiff has no cause of action against the Defendant company and the plaint docs not disclose any cause of action.

This suit was called on for hearing before Deb J. on April 10, 1972. After the hearing started, the plaint was amended under order of Deb J. dated May 16, 1972. In the amended plaint, a new para. 21A was added. In the amended paragraph the Plaintiff gave certain particulars of fraud and undue influence, duress and coercion. Thereafter, additional written statement was filed* on June 9, 1972, by the Defendant stating, inter alia, that there was no pleading of fraud in the original plaint and accordingly, the Plaintiff was not entitled to introduce or give any particulars of fraud. The Defendant also denied specifically'' the allegations of fraud, undue influence and coercion made by the Plaintiff in the amended paragraphs of the plaint. The hearing of this suit started before Deb J. on July 21, 1972. The following issues were raised before Deb J.

(1) Were the terms and conditions as alleged in para. 14 of the plaint, the terms and conditions of the Plaintiff''s services?

(2) Did the Defendant make a motivated attempt to malign the Plaintiff or make a scapegoat of him as alleged in para. 16 of the plaint?

(3) Was the Defendant bent upon getting rid of the services of the Plaintiff or to terminate his services as alleged in para. 17 of the plaint?

(4) Was the retirement of the Plaintiff procured by the Defendant in the manner or in the circumstances as alleged in paras. 18, 19, 20, 21, 21A and 22 of the plaint?

(5) Was the Plaintiff wrongfully dismissed as alleged in para. 23 of the plaint?

(6) Has the Plaintiff suffered any loss or damage?

(7) (a) Has the Plaintiff made any attempt to mitigate the damage?

(b) If so, to what extent?

(8) Is the Plaintiff estopped from making any claim by reason of the facts stated in paras. 29 and 32 of the written statement and the receipt by the Plaintiff of his gratuity and provident fund dues on June 1, 1968 and July 24, 1969, respectively?

(9) To what relief, if any, is the Plaintiff entitled?

Thereafter, this suit was heard for several days by Deb J. The evidence on behalf of the Plaintiff was concluded before the learned Judge. The evidences of two witnesses on behalf of the Defendant were also concluded before Deb J. But as the learned Judge did not take up this matter further, the suit was assigned to me and the evidence before Deb J. was treated by consent as evidence taken de bene esse.

The evidence of the witnesses taken de bene esse was read? before me. The Defendant further called four witnesses before mc.

Admittedly, the Plaintiff Bose signed the letter of retirement dated February 1, 1968 and handed over the letter to Sahai, the Technical and Commercial Manager. This letter was accepted by the Defendant on February 2, 1968. The letter dated February 1, 1968, reads as follows:

To

The Managing Director,

M/s. The National Rolling and Steel Ropes Ltd.,

Nicco House,

1 and 2, Hare Street,

Calcutta 1.

Dear Sir,

Retirement

Referring to my conversation with Sri J.N. Bhan, yourself and Sri S. Singh Roy on 31st January ''68 when I expressed my desire to retire from the service of the company, I shall be grateful if I am retired with effect from 1st May ''68 and this may be treated as three months'' notice.

I am grateful to you for agreeing to encash my leave dues. You will also give me additional one month''s salary offered by you and bonus declared by the Company in the accounting year June, 1968.

Thanking you,

Yours faithfully, Sd. N. Bose Superintendent, Wire Mill.

N.R.S.R. Ltd.,

Shamnagar,

1st February ''68.

In the plaint, the case of the Plaintiff is that this letter of retirement "having been procured tinder the aforesaid circumstances at the dictation and command of the Defendant" is not binding upon the Plaintiff and then the Plaintiff further states, "Plaintiff was thus wrongfully dismissed under mala fide colour of the purported retirement".

Appearing for the Defendant Mr. B.K. Ghose, with Mr. Ajit Kumar Sen and Mr. P.K. Das, submitted that the Plaintiff is not entitled to succeed on the allegations made in the plaint as no sufficient pleading of fraud or undue influence or coercion has been made out in the plaint.

In case of fraud and undue influence and coercion the party''s pleading has to set forth full particulars and the case can be decided on the particulars as laid in the plaint. The principle of law is well-settled as will appear from the decision of the Supreme Court in Bishundeo Narain and Another Vs. Seogeni Rai and Jagernath, . The Supreme Court stated the law as follows:

...Now if there is one rule which is better established than any other, it is that in case of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong'' the language in which they are couched may be and the same applies to undue influence and coercion. See Order 6, Rule 4, Civil Procedure Code.

To appreciate this contention made on behalf of the Defendant the plaint has to be examined in detail. In para. 21 of the plaint the Plaintiff Bose stated,

the said letter of retirement having been procured under the aforesaid circumstances at the dictation and command of the-Defendant is not binding on the Plaintiff.

The aforesaid circumstances as laid in the plaint will appear from paras. 16, 17, 18, 19, 20, 21 and 21A of the plaint.

In para. 16 of the plaint the Plaintiff states that attempts were made to malign the Plaintiff in various ways on one pretext or another and to make, a scapegoat of him to cover up the mismanagement and bunglings within the management itself. There are no particulars of this allegation made in this paragraph. In para. 17 of the plaint, the Plaintiff stated that S.C. Roy, Managing Director, was determined to terminate his service by any means. There are no particulars of this paragraph also. In para. 18 of the plaint, the Plaintiff stated that the Plaintiff was asked by D.P. Sahai, Technical and Commercial Manager, on January 19, 1968, in the presence of S.B. Firke, Acting Works Manager, to seek a suitable job elsewhere as the management had already decided anyhow to get rid of him. The statement made in this paragraph again does not show that the letter of retirement dated February 1, 1968, was procured by undue influence, fraud or coercion. Paragraph 19 of the plaint is also not important. In para. 20 of the plaint, the Plaintiff states that on January 31, 1968, he was made to call at the head office of the Defendant at Nicco House where the Managing Director S.C. Roy alleged that the Wire Mill was running at a loss. It is also stated that he was asked to seek service elsewhere by Sri S.C. Roy. This happened in the presence of two other directors Sri J.N. Bhan and Sri S. Singh Ray, the Technical and Commercial Manager, Sri D.P. Sahai was also present, who all exercised undue influence and coercion and caused him to tender the purported letter of retirement dated February 1, 1968, against his will arid in circumstances of terrific pressure and strain which broke his nerve and mind. No particulars of undue influence and coercion have been given also in this paragraph. In para. 21, the Plaintiff stated that Sri D.P. Sahai himself drafted the text of the letter and called upon the Plaintiff to type it out and persuaded and prevailed upon him to sign it and the Plaintiff accordingly did as he was commanded to do under duress. There are no particulars of this paragraph also.

Certain particulars are given in para. 21A of the plaint as amended. These particulars are given under the headings (a) Particulars of fraud; (b) Particulars of undue influence and (c) Particulars of duress and coercion. These particulars as laid in the plaint have to be examined carefully to see whether these particulars of allegations are sufficient averments of fraud and undue influence, coercion and duress.

With regard to fraud the Plaintiff Bose states as follows:

Particulars of fraud

(a) The Plaintiff came to learn from a copy of the letter dated 29th September 1967 addressed by the Managing Director Sri S.C. Roy to the Acting Works Manager that percentage of production was declining and percentage of loss and scrap was getting high and that the Plaintiff should be asked to give his comments regarding same. The Plaintiff himself checked up the matter and detected certain irregularities and mismanagement for which the Defendant is responsible and the Plaintiff had discussion with the Acting Works Manager regarding same.

(b) In the latter half of January 1968, the Plaintiff was, asked by Mr. D.P. Sahai, the Technical and Commercial Manager of the Defendant company, to seek a suitable job elsewhere on the plea that the Defendant was suffering loss.

(c) On the 31st January 1968, the Plaintiff being directed by Mr. D.P. Sahai was made to see Mr. S.C. Roy, the Managing Director, at the Nicco House who told the Plaintiff that the Wire Mill was running at a loss suffering further 14 % material loss and scrap etc. that the Wire Mill would have to close down. The said allegations are false and the Plaintiff proved the incorrectness of the same by facts and figures from records, but the Managing Director brushed it all aside called upon the Plaintiff to seek service elsewhere.

(d) With effect from 1st day of May 1968, the Plaintiff was thus wrongfully dismissed under colour of purported retirement at the age of 54 years.

(e) Even after date of the said letter of retirement the Plaintiff was given hope by the Defendant that the said letter would not be treated seriously and that the Plaintiff would be retained in service, but all such assurances turned out to be false and the Plaintiff was compelled to leave the residential quarter provided for the Plaintiff on 31st day of May 1968.

Although the Plaintiff Bose has set out certain particulars with the heading ''fraud'' by way of amendment of the plaint, but the Plaintiff did not make the case in original plaint that the letter dated February 1, 1968, given by the Plaintiff, was procured by the Defendant by exercise of fraud.

Section 17 of the Indian Contract Act gives the definition of fraud. Fraud is committed wherever one causes another to act on a false belief by a representation which he does not himself believe to be true. There are certain essential elements which must necessarily exist before a party can be said to have been defrauded. Firstly, it is essential that the means used should be successful in deceiving. However false and dishonest the artifices or contrivances may be by which one man may attempt to induce another to contract, they do not constitute a fraud if that other knows, the truth and sees through the artifices or devices. Secondly, there can be no fraud without an intention to deceive though the motive is immaterial.

If facts are known to both the parties and one person contends that there was 14% loss and the other person knew that there was not 14% loss then there was no question of fraud. It appears to me that there are not sufficient particulars of fraud within the meaning of Section 17 of the Indian Contract Act.

In Satish Chandra Ghose v. Kalidas 34 C.L.J. 529 (531) it is held:

A charge of fraud must be substantially proved as laid, so that when one kind of fraud is charged, another kind of fraud cannot upon failure of proof be substituted for it.

Now with regard to undue influence the Plaintiff Bose gave the following particulars:

Particulars of undue influence

(a) Sri S.C. Roy in the presence of two other directors Mr. J.N. Bhan, Mr. S. Singh Ray and Mr. D.P. Sahai who all exercised undue influence and coercion upon the Plaintiff and induced the Plaintiff under duress and unbearable pressure to sign and submit a letter of purported retirement against his will as dictated by D.P. Sahai and under pressure of circumstances and strain which broke his will and nerves and made him to do as commanded by them.

(b) On the 31st day of January 1968, Mr. Sahai himself drafted the text of the letter of purported retirement and called upon the Plaintiff to type out and persuaded and prevailed upon to sign the letter and the Plaintiff accordingly did against his will as commanded to do under duress.

Undue influence has been defined in Section 16 of the Indian Contract Act. The Supreme Court has enunciated the principles underlying Section 16 of the Indian Contract Act in Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others, . The headnote of the report is as follows:

A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other;, It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction; he has to prove (a) that the other party to a transaction was in a position to dominate his will and (b) that the other party had obtained an unfair advantage by using that position.

As to what the Court would see in a case of undue influence has been laid down by the Supreme Court in Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib AIR S.C. 878 (881). The headnote of this case runs as follows:

The Court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.

Merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. Generally speaking, the relations of Solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises.

The Supreme Court held as follows:

Before, however, a Court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud.

It appears to me from the pleading in the instant, case that no sufficient pleading of undue influence has been stated in the particulars. It is not stated that the Defendant company or any of its officers was in a position to dominate the will of the Plaintiff and used that position to obtain an unfair advantage over the Plaintiff. It is also not stated that the transaction was unconscionable, or that the Defendant obtained an unfair advantage by using its position.

With regard to particulars of duress and coercion the Plaintiff stated as follows:

Particulars of duress and coercion

(a) On the 31st January 1968, the Plaintiff being directed by Mr. D.P. Sahai was made to see Mr. S.C. Roy, the Managing Director, at the Nicco House who told the Plaintiff that the Wire Mill was running at a loss suffering further 14% material loss and scrap etc. and that the Wire Mill would have to close down. The said allegations are false and the Plaintiff proved the incorrectness of the same by facts and figures from records but the Managing Director brushed it all aside and called upon the Plaintiff to seek service elsewhere.

(b) Sri S.C. Roy in the presence of two other directors Mr. J.N. Bhan, Mr. S. Singh Roy and Mr. D.P. Sahai who all exercised undue influence and coercion upon the Plaintiff and induced the Plaintiff under duress and unbearable pressure to sign and submit a letter of purported retirement against his will as directed by Mr. D.P. Sahai and under pressure of circumstances and strain which broke his will and nerves and made him to do as commanded by them.

(c) On the 31st day of January 1968, Mr. Sahai himself drafted the text of the letter of purported retirement and called upon the Plaintiff to type out and persuaded and prevailed upon to sign the letter and the Plaintiff accordingly did against his will as commanded to do under duress.

(d) With effect from 1st day of May 1968, the Plaintiff was thus wrongfully dismissed under colour of purported retirement at the age of 54 years.

(e) Even after date of the said letter of retirement the Plaintiff was given hope by the Defendant that the said letter would not be treated seriously and that the Plaintiff would be retained in service, but all such assurances turned out to be false and the Plaintiff was compelled to leave the residential quarter provided for the Plaintiff on the 31st day of May 1968.

Section 15 of the Indian Contract Act defines coercion : Coercion is the committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.

The words ''act forbidden by the Indian Penal Code'' make it necessary for the Court to decide in a civil action, if that branch of the section is relied on, whether the alleged act of coercion is such as to amount to an offence.

The Plaintiff Bose has in this paragraph sought to give certain particulars of duress and coercion. ''Duress'' has not been defined in the Indian Contract Act. In Halsbury''s Laws of England (3rd ed., vol. 8, Article 146) the meaning of ''duress'' is given as follows:

Meaning of duress. By duress is meant the compulsion under which a person acts, through fear of personal suffering, as from injury to the body or from confinement, actual or threatened....

A contract obtained by means of duress, execised by one party over the other is voidable and not void and if voluntarily acted upon by the party entitled to avoid it will become binding on him. The duress must be actually existing at the time of the making of the contract and the personal suffering may be that of the husband or wife or near relative of the contracting party, but that of a stranger or a master is not sufficient.

In England the topic of ''duress'' at common law has been almost rendered obsolete partly by the general improvement in manners and morals and partly by the development of equitable jurisdiction under the head of Undue Influence.

It does not seem to me that there are sufficient allegations of coercion within the meaning of Section 15 of the Indian Contract Act or that of duress. There is no allegation of threat. There is no allegation that the Defendant or any officer of the Defendant did any act forbidden by the Indian Penal Code. There is no instance of threat or any circumstances to show that the Plaintiff out of fear or threat was compelled to sign the letter of resignation.

I accept the contention of the learned Counsel for the Defendant that, in view of Sections 19 and 19A of the Indian Contract Act, on the allegations made by the Plaintiff in the plaint the contract is only voidable and not void and therefore, the Plaintiff should have made the prayer to avoid the same. But there is no such prayer in the plaint. The Plaintiff has not made any prayer for declaration that the letter of resignation should be declared void on the ground of undue influence or fraud or misrepresentation or coercion. No doubt, there is great force in the contention of the learned Counsel for the Defendant on the point as stated above, but in order to decide this case I must consider the merits of the case and the contentions made by the learned Counsel for the Plaintiff.

The question is under what circumstances the Plaintiff Bose signed the letter of resignation dated February 1, 1968. In this connection the incidents on three dates are important, namely, what happened on (i) January 19, 1968, (ii) January, 31, 1968 and (iii) February 1, 1968.

With regard to the incidents on these dates Plaintiff Bose in his oral testimony said as hereunder:

On January 19, 1968, when Bose entered in his office at Shyamnagar, he saw Sri S.B. Firk''e, the acting Works Manager. Suddenly Mr. D.P. Sahai asked him, "Mr. Bosis, try to put applications for job outside". He smiled. He did not take it seriously. But looking at his face, he realised that he (Sahai) was also somehow disturbed. He told the Plaintiff,

Mr. Bose, I am seriously telling you, just seek a job elsewhere, as the position of steel rope industry is in a bad condition, particularly the Wire Mill, that is, the Plaintiff''s department, is running at a loss.

The Plaintiff Bose, was stunned. He could not talk. He mentioned the principle of ''last come first go''. Why should he be taken first as he was the oldest founder employee of this organisation, Sahai answered him, "No, later, others will also follow". (Bose Qs. 138 to 141).

This is the case of the Plaintiff Bose so far as the incident of January 19, 1968. But this incident is denied by S.B. Firke who gave evidence on behalf of the Defendant. Firke denied that in his presence Mr. Sahai asked the Plaintiff to seek suitable service elsewhere. But he said that there was discussion between the Plaintiff Bose and himself regarding the losses of the Wire Mills. There was general discussion and it was mentioned by Sahai that it would not be possible to run the industry if losses continue like this. (Firke, Qs. 37-38).

What happened on January 31, 1968, is very important. With regard to the incidents on this date Plaintiff Bose in examination-in-chief stated as follows:

Over the phone Mr. D. P. Sahai first asked me, ''Did you put in an application for a ''job''? On this point I lost my temper and shouted over phone, ''Sahai Saheb, do you mean to say jobs are so easily available''? By telling this rather in angry mood I just put the receiver over hanger. Immediately after a few seconds, I think the connection was still there, he again rang me, ''Mr. Bose, better go and see Mr. S.C. Roy, Managing Director, at 2-30 p.m. I informed him, ''yes, I will go''. (Bose Q. 68).

Therefore; according to Bose; he received two telephone calls from D.P. Sahai and he was asked to see Sri S.C. Roy, the Managing Director and he agreed to do this.

Then Plaintiff Bose said irx Q. 69:

I left for my quarter immediately informing my next man Sri P.N. Mukherjee, Assistant Superintendent, Wire Mill, that I have been asked to see Sri S.C. Roy today and I am leaving the section and also expressed to him in Bengali bodh hai aaj amai kotal karbe (probably I am going to be slaughtered today). Hearing this, Assistant Superintendent Mr. P.N. Mukherjee said something.

Then what he did? His evidence is that he went straight to his quarter, took his meal, arid left for the head office (Bose Q. 70). He arrived at the head office at about 2-30 p.m. He went to Nicco House at Hare Street, Calcutta. He entered straight the office, of D.P. Sahai, Technical and Commercial Manager. Sahai was then in his office. Sahai offered him a cup, of tea as he was in agitated mood. He was there in the room of D.P. Sahai from 2-30 p.m. to 5-30 p.m. During his stay in D.P. ''Sahai''s office, he was talking about the position of steel rope industry and other things. He was carrying some notes if Mr. Roy asked him about the percentages of losses he would be able to convince him that there was no actual loss (Bose, Qs. 69-79). The Plaintiff stated that he knew the purpose for which D.P. Sahai called him over the telephone (Bose, Q. 136).

Then, according to Plaintiff Bose, what happened at the head office in the meeting was as follows : He saw Sri S.C. Roy at about 5-30 p.m. In the room, Mr. S.C. Roy, Mr. J.N. Bhan and Sri S. Singh Ray, namely, three directors were present. As he entered that office his whole attention was on the face of Sri J.N. Bhan. Sri J.N. Bhan told him that the Wire Mill was running at a loss from 1966-67, due to abnormal percentage of loss and scrap there is further loss and said that they are unable to run the Wire Mill. According to Plaintiff Bose, he looked like a goat to be slaughtered. He said that he looked at the face of Sri J.N. Bhan and he forgot about the atmosphere. Bhan also looked at him and told him,

Yes, Mr. Bose, Wire Mill is running at a loss and we cannot run it, we will close down the Wire Mill because there is so much loss about 14% loss, so we will close down the Wire Mill.

He placed some paper before Sri J.N. Bhan.

The case of the Plaintiff is that Sri S.C. Roy told him that unless there is 60 tons of production per day the mill could not be run and Sri S.C. Roy asked him to go out and follow Mr. Sahai. (Bose, Qs. 84-85). Then Plaintiff Bose straight went to the office of D.P. Sahai again. He stayed there for 15 to 20 minutes. D.P. Sahai sat on his side and asked him to write one resignation letter. The Plaintiff resisted and told him ''not today''. He took a pencil and wrote ''Managing Director, as desired by you.... Sahai snatched it away, then went to his own chair and said, Mr. Bose, do not do this. This will not do. Why you are inviting trouble like Mr. Sasara". Then D.P. Sahai brought one big paper from his pocket. D.P. Sahai produced a draft letter. It was written in his handwriting. D.P. Sahai told him, "take this, get it typed and send it tomorrow". He took that and put it in his pocket. Then he went home and took his meal. (Bose, Qs. 86 to 97).

Next day Plaintiff Bose came to the factory office. It was 9 a.m. Then, at about 11 a.m. Mr. Sahai called him in his office at Shyamnagar. He went to see him in his office. He asked the Plaintiff whether the letter was typed or not to which the Plaintiff told him ''not yet''. Thereafter he went to get it typed by Debi Babu, the stenographer. He went to him and got it typed. Sahai read the letter and asked him why he had not put the words ''thanking you''. Thereafter he told Sahai, "Sahai Sab, you are asking me to thank my hangman". Then he wrote. ''thanking you'' in his hand and put his signature on the letter and gave it to Mr. Sahai (Bose, Qs. 98-101) and Mr. Sahai took away the letter (Bose, Q. 104).

The evidence given by Plaintiff Bose shows his state of mind on February 1, 1968. He got the draft from Sahai on January 31, 1968, had the draft with him overnight, then he got the letter typed. Exhibit ''D'' is the draft of the letter. He was present by the side of the typist, Debi Prosad Chatterjee. (D.P. Chatterjee, Qs. 24-30).

It appears that D.P. Chatterjee typed in the manner dictated by Bose (D.P. Chatterjee, Q. 38). The draft, Ex. ''D'' and the letter of resignation Ex. ''E'' show that certain words appear in the letter of resignation, Ex. ''E'', which were not in the draft. This indicates that Plaintiff Bose applied his mind and he admitted that the words ''thanking you'' were written in Ex. ''E'' in his own hand (Bose, Q.117).

In cross-examination, Plaintiff Bose stated that he carried some notes when he was asked to meet the directors and he tried to explain that the figures supplied by the accounts department might be wrong (Bose, Qs. 345-346). Therefore, he had the knowledge that the department suffered loss and there was some bunglings somewhere (Bose, Qs. 349-350, 413-414). He did not tell the Board that he was not responsible (Bose, Q. 36). The Plaintiff was cross-examined on the point that 60 ton''s a day production was not possible (Bose, Qs. 396-400). But Bose knew that he would be asked on questions about 14 % loss (Bose, Qs. 412-415). According to the Plaintiff, the reason why he signed the letter dated February 1, 1968, was that Sahai commanded him to sign it. He says ''he was compelled''. By the word ''compelled'' he meant that Sahai commanded him. But he admits that Sahai did not use any physical force. His case was that Sahai warned him that fate like Mr. Sasara may come upon him. According to him, this was not his resignation but circumstances compelled him to sign the letter. (Bose, Qs. 589-591).

When Plaintiff Bose was asked what were those circumstances which compelled him, he said : "because I knew that if I did not sign at that time they might take some other plea and sack me." (Bose, Q. 596). The plea, according to Bose, was ''theft, cheating or anything like that'' (Bose, Q. 598). Plaintiff Bose admitted that he was not charged with any irregularity by anybody. Then when he was asked what was there to be afraid of, he said, "I was afraid, because if I did not sign, in front there was my daughter''s, marriage, it was settled in February, then I shifted it to April, if I did not get enough time, my social status will vanish also. I thought what to do, where I can go." (Bose, Qs. 607-608).

After the letter dated February 1, 1968, Plaintiff Bose handed over charge to Mr. P.K. Dutt. Then on February 5, 1968, he took sick leave. He wrote a letter dated February 5 (15th) 1968, (Ex. 2) to S.B. Firke, the Acting Manager. This letter he wrote so that his friend Sri Dutt becomes cautious and thus can avoid trouble in future. He admits that the Managing Director had no grudge against him and there was no ill-feeling against him. (Bose, Qs. 693-694). He admits that the Wire Mill was running at a loss (Bose, Q. 751). He had the draft letter given by Sahai to him in his pocket.

On this evidence of Plaintiff Bose I cannot accept the case with regard to either fraud or undue influence or coercion or duress as alleged by the Plaintiff. He had the draft of the letter with him on January 31, 1968. He had time to consider about it on all aspects which he stated in his evidence. He got it typed by the typist. He did himself put his signature and put the words ''thanking you'' in his own hand. He admits that he signed the letter himself. But he says that Sahai commanded him. What is the nature of the command will appear from his own answer to the following questions:

Q. 760. And you signed it?

Yes, he commanded me.

Q. 761. What command he made?

He asked me ''sign it and put the word thanking you sir''.

Q. 762. You took it to be a command and signed it?.

Yes.

In the particulars of undue influence, the Plaintiff stated:

S.C. Roy in the presence of two other directors Mr. J.N. Bhan, Mr. S. Singa Ray and. Mr. D.P. Sahai who all exercised under influence and coercion upon the Plaintiff and induced the Plaintiff under duress and unbearable pressure to sign and submit a letter of purported retirement against his will as dictated by D.P. Sahai and under pressure of circumstances and strain which broke his will and nerves and made him to do as commanded by them.

This is also his case in para. 6(c) of the petition for amendment of the plaint affirmed by him as true to his knowledge on February 12, 1972, (Ex. 9A) (Bose, Qs. 1012-1022). But in the oral testimony it is not the case of the Plaintiff that at the time when he signed the letter any of the directors'' of the company were present.

Again in the petition for amendment of the plaint affirmed by Plaintiff Bose, he said that on January 31, 1968, Mr. Sahai himself drafted the text of the letter of purported retirement and called upon the Plaintiff to type it out and persuaded and prevailed upon him to sign the letter and the Plaintiff, accordingly, did against his will as commanded by him to do under duress. But his evidence in Court was that on January 31, 1968, Mr. Sahai brought out the draft (Bose, Q. 1008). He admits that there is discrepancy (Bose, Qs. 1009-1010). He also admits that Sahai did not dictate any letter in his presence or in the presence of S.C. Roy (Bose, Q. 1020).

It is important to consider the conduct of the Plaintiff after the letter of retirement was signed and given by him to Sahai. After acceptance of the letter by the company, on February 15, 1968, he wrote a letter to S.B. Firke, Acting, Works Manager, to make his friend cautious. Therefore, he was trying to warn his successor-in-office. He wrote on April 13, 1968, accepting the position that in compliance with the letter dated February 2, 1968, as directed by the Managing Director, he handed over the charge to Sri P.K. Dutt (Ex. 8)). Therefore, he accepts the position that he resigned from office. After this he warned his friend P.K. Dutt by the letter dated February 5, 1968, which is signed on February 15, 1968.

By the letter dated April 20, 1968, S.B. Firke, Acting Works Manager, confirms that Plaintiff Bose had handed over the charge. Then he requested Firke to allow him to occupy company''s quarter for one month more, that is, after the end of April 1968. He was granted permission. He was allowed to remain in quarter for one month more on payment of rent of Rs. 312-50 (Bose, Qs. 160-162). Therefore, on hiss own application, for staying in company''s quarter after the date of his retirement he was allowed to stay for one month more and he accepted this position. Thereafter, he also accepted various payments from the company on account of his retirement benefit and upon representation that he retired. In Ex. 3 which is letter dated March 12, 1968, he said, ''I am retiring from service''. On May 31, 1968, he received gratuity amounting to Rs. 13,183-38 (Ex. 4). The receipt shows that he retired on May 1, 1968 and the amount was paid to him for 21 completed years of service. In this connection Clause 7(111) and 7(iv) of the Original Deed of Trust Staff Gratuity Fund dated December 6, 1966, (Ex. 5) provides as follows:

7(111). An employee who voluntarily resigns from service under the company after completion of a minimum period of fifteen years of continuous service and having a good service record shall be eligible for retiral gratuity.

7(iv). No employee whose service in the company is terminated by way of retrenchment or resignation before completing the eligibility period of service for purposes of gratuity or for any reasons other than superannuation or ill health or voluntary resignation after completion of fifteen years continuous service shall be eligible for any gratuity.

It has been proved that Plaintiff Bose accepted the gratuity amounting to Rs. 13,183-38 in June 1, 1968, on the basis of his voluntary retirement. Thereafter, he received provided fund amounting to Rs. 43,817-32 on July 24, 1969. Therefore, he received the benefit of the company''s contribution of gratuity and provided fund and took benefit of the same on the basis of his own resignation and voluntary retirement.

Appearing for the Plaintiff Mr. N. Dutta Majumdar, assisted by Mr. Rule P. Lahiri and Mr. Markani, submitted that the question which arises in this case is whether the letter dated February 1, 1968, was signed voluntarily of his free will by the Plaintiff. He also submitted that the onus of proving that the letter dated February 1, 1968, was voluntarily executed and signed by the Plaintiff of his own free will has shifted to the Defendant. According to Mr. Dutta Majumdar, the letter dated February 1, 1968, must be rejected as nullity, void abinitio and of no effect and the termination of the Plaintiff''s service under colour and pretext of the said letter, is patently an act of wrongful dismissal.

Mr. Dutta Majumdar cited several cases in support of his submission. The first case cited by Mr. Dutta Majumdar is U.P. Government Vs. J.R. Bhatta, . The headnote (b) of the report of this case is as follows:

Where although the leave applied for by a Government servant was to his credit the granting of that leave was being delayed and being in dire need of leave in his the then state of mental depression, when the servant saw the Deputy Registrar to enquire about the cause of the delay he was given to understand that, unless an undertaking in writing was given that he would not return to duty after the expiry of his leave his application might not have early disposal and it was in this state of affairs that the servant succumbed to the suggestion and gave the required undertaking and his application for leave was then granted.

Herd, that the relation subsisting, at the time between the Deputy Registrar and the servant was such that the former was in a position to dominate the will of the letter. The Deputy Registrar used that position to obtain an unfair advantage over the servant since his consent to give the written undertaking was obtained in return for what, the Registrar was bound even otherwise to do, viz., to expedite disposal of the application for leave which was admittedly due to the servant. The consent to the undertaking was induced by undue influence and the servant was in consequence not bound by it.

The contract would also not be enforceable for want of consideration, since the consideration was unreal.

The facts of this case are as follows : The Plaintiff was appointed by the High Court as a stenographer in the Civil Court at Gorakhpur. He was subsequently transferred to the High Court. He put up 29 years of service. In February 24, 1942, he went on a month''s leave on medical certificate. Before expiry of that leave he applied for leave for 24 months and 9 days with effect from April 24, 1942 to January 31, 1944, out of which four months were on full pay and rest on half-average pay, The Plaintiff''s case is that this leave-was due to him and that he had to apply for it as he was then ill and in a state of deep mental depression occasioned by family Circumstances. As the granting of this prayer for leave was delayed, the Plaintiff saw the Deputy Registrar and he was told that the matter could be expedited if he gave an undertaking that he would not return to his duty after the expiry of his leave. The Plaintiff who was in dire necessity of leave and had packed up his luggage as he was anxious in his the then state of mental depression to reach his home town. He, therefore, succumbed to the suggestion of the Deputy Registrar and gave the undertaking and after that his application for leave was granted. Sometimes thereafter, he applied to the Registrar for cancellation of the rest of his sanctioned leave and for permission to resume his duties. This application of the Plaintiff was rejected and thereafter, a suit was instituted by the Plaintiff and in the suit he characterised the order by which he was not allowed to resume his duties as illegal, because, according to him there was no rule or law under which it could be passed and as he was quite fit physically and had a good record. Under the peculiar facts and circumstances of this case Chowdhury J. observed Supra (443, 445):

The Plaintiff supported these plain allegations by his statement on oath. The only, cross-examination on this point was as to the exact time when he gave the undertaking. That is, however, immaterial since it is in the written statement of the Defendant that the leave applied for was granted to the Plaintiff after he had given the undertaking. The Plaintiff''s statement was not rebutted.

No other, theory as to the circumstances in which the undertaking was given has been put forward on behalf of the Defendant. Indeed, the written undertaking itself was not produced in spite of his having been summoned by the Plaintiff. In these circumstances, there appears to be no reason for not believing the aforesaid statement of the Plaintiff. From that statement it would appear that the relation subsisting at the time between the Deputy Registrar and the Plaintiff was such that the former was in a position to dominate the will of the latter.

It would also appear that the Deputy Registrar used that position to obtain an unfair advantage over the Plaintiff since the consent of the Plaintiff to give the written undertaking was obtained in return for what the Registrar was bound even otherwise to do, viz., to expedite disposal of Plaintiff''s application for leave which was admittedly due to him. It would appear, therefore, that the Plaintiff''s consent to the undertaking was induced by undue influence and the Plaintiff is in consequence not bound, by it.

The Court also observed:

There is one other short ground in favour of the Plaintiff-Respondent. Under Rules 13 and 14 of the Financial Handbook, his lien not having been suspended, the Plaintiff retained his lien on the substantive permanent post which he held at the time of proceeding on leave and under Rule 12 neither Sri Asthana nor Sri Gupta should have been appointed substantively to the post on which the Plaintiff held a lien.

In my view, the case Supra is distinguishable from the facts and circumstances of this case and the decision of the High Court at Allahabad cannot be made applicable in the instant case. In my view, the observation of the -High Court in the Allahabad case

From that statement it would appear that the relation subsisting at the time between the Deputy Registrar and the Plaintiff was such that the former was in a position to dominate the will of the latter

was made under the facts of that case and the said observation does not mean that the master is deemed to be in a position to dominate the will of the servant only because of the relationship of master and servant. The law on this point will appear from Halsbury''s The Laws of England (3rd ed., vol., 17, Article 1306) which is as follows:

1306. When presumption arises Many, though not all, fiduciary relations give rise to a presumption of undue influence; but the presumption is not confined to cases, in, which the parties stand in a strictly and recognisable fiduciary relation one to the other. The test is whether the relation is such that domination may be exercised by one person over another. Thus there is no such presumption between master and servant or between employer and bailiff or steward....

In my view, under the facts of this case I cannot hold that Mr. D.P. Sahai was in a position to dominate the will of Plaintiff Bose and used that position and obtained unfair advantage over the Plaintiff. In my view, under the facts of this case, Section 16, Sub-section (3) of the Indian Contract Act does not apply and the burden of proving that the letter of retirement was not induced by the Defendant by undue influence does not lie upon the Defendant. The pleading made by the Plaintiff and the evidence tendered by the parties do not leave, any doubt in my mind that the letter dated February 1, 1968, was not induced by undue influence upon the Plaintiff.

Mr. Dutta Majumdar relied on Abraham Reuben v. Karachi Municipality AIR 1929 Sind. 69 : 113 I.C. 387 in support of his argument that a forced resignation amounted to dismissal of service.

In the case before the Sind Judicial Commissioner''s Court what happened was that one Mr. Abraham Reuben was employed by the Karachi Municipality. There was certain report of corruption committee of the Municipality. At a meeting of the Managing-Committee of the Municipality it was resolved that Mr. Abraham Reuben be informed that the Managing Committee would not enter into discussion with him. He must resign within one week of the receipt of notice and he must understand that if he fails to do so the Managing Committee will take such action as it deems fit. This resolution was communicated to the Plaintiff. Thereafter, the Plaintiff wrote stating,

under protest I am prepared to obey the Managing Committee''s order and hand over charge of my office from the end of the current month pending my appeal to the municipality which will be submitted in due course.

Thereafter, the Plaintiff handed over the charge of office. The Plaintiff was not allowed to return to duty. In the suit'' filed by the Plaintiff before the Court of the Sind Judicial Commissioner, the Plaintiff stated that the Defendant refused to perform their part of the contract with the Plaintiff and compelled him to put an end to the same and that, in any event, he was wrongfully and illegally dismissed by the Defendant. One of the issues in this case was ''did the Plaintiff resign his service and if so, did the Defendants compel him to resign?''

Mr. Lobo A.J.C. relied on an English decision, Stephenson v. London Joint Stock Bank Ltd. (1904) 20 T.L.R. 9 : 52 W.R. 83 and said Supra (392):

The case of Stephenson v. London Joint Stock Bank Ltd. bears considerably on, the point. In that case, the Plaintiff, a clerk in the Defendant Bank, had endorsed a promissory note made, by one Mr. Sedger. On the Bank coming to know of this, the Plaintiff was called upon for an explanation. On receipt of it the Secretary to the Bank wrote a letter to the Plaintiff containing the words ''you are required to resign your appointment in the Bank forthwith''. The Plaintiff then wrote to the Bank resigning his appointment. The question was, whether the Plaintiff had retired with the consent of the Directors or had been dismissed. The Lord Chancellor in delivering the judgment of the Court of Appeal said he entertained no doubt upon the point. They had to look at the whole of the facts and doing so there could be no doubt but that the Plaintiff had been dismissed. The use of polite instead of peremptory language did not alter the fact.

Lobo A.J.C. also relied on two other English decisions : (i) General Bill Posting Co. Ltd. v. Atkinson (1909) A.C. 118 : 78 L.J. Ch. 77 : 99 L.T. 943 : 25 T.L.R. 178 and (ii) In re Rubel Bronze and Metal Co. Ltd. and Vost (1919) 1 K.B. 315 : 87 L.J.K.B. 466 : 118 L.T. 348 : 34 T.L.R. 171 and further observed:

applying these rulings to the facts in the case before me, as I have set them out, I am of opinion that the only inference to be drawn is, that the Plaintiff did not resign his appointment but was dismissed by the managing committee of the municipality.

In my view, the facts and circumstances of the case Supra (392) are entirely different and distinguishable from the facts and circumstances of the instant case. In the case before the Court of the Sind Judicial Commissioner, the Plaintiff was forced to resign as the Plaintiff wrote stating that under protest he was obeying the order and handing over the charge of his office.

The decision of the House of Lords in General Bill Posting Co. Ltd. v. Atkinson (1909) A.C. 118 : 78 L.J. Ch. 77 : 99 L.T. 943 : 25 T.L.R. 178 also cannot apply. The headnote of the report is as follows:

Employers agreed with their manager that he should hold office subject to termination at twelve months notice by either party and with a restriction on his right to trade after its termination. The employers having wrongfully dismissed him without notice.

Held, that he was entitled to treat the dismissal as a repudiation of the contract and to sue them for damages for breach of contract and was no longer bound by the restriction on trade.

Lord Collins observed Supra (1909) A.C. 118 (122):

I think the true test applicable to the facts of this case is that which was laid down by Lord Coleridge CJ. in Freeth v. Burr, reported in (1874) L.R. 9 C.P. at p. 213 and approved in Mersey Steel Company v. Naylor, reported in (1884) 9 App. Cas. 434, in the House of Lords, That the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract.

Therefore, Lord Collins expressly stated that under the facts of the case before he was applying the principles laid down by Lord Coleridge C.J. in Freeth v. Burr (1874) L.R. 9 C.P. 213. In my view, the said principles cannot apply under the facts and circumstances of the instant case. The other English decision relied on is In re An Arbitration between Rubel Bronze and Metal Co. Ltd. and Vost Supra. The headnote of this case is as follows:

The right to bring an action for ''wrongful dismissal'' is a mere illustration of the general legal rule that an action will lie for unjustifiable repudiation of a contract.

In November 1915, by an agreement in writing, the Defendants, a company carrying on an establishment controlled under the Munitions of War Act, 1915, appointed the Plaintiff general manager of its works for three years at a fixed salary and a commission upon the net profits of the business available for dividend upon a rising scale and if the net profits for the second and third years together amounted to a certain sum, the agreement was to be continued for a further period of three years upon the same terms and conditions. In January 1917, the Defendants purported to ''suspend'' the Plaintiff from the exercise of his duties pending an investigation as to his efficiency; they also compelled him to deliver up the badge he held as a person engaged in munition work at a controlled establishment on the ground that he was no longer ''indispensable'' and they appointed another person to take charge of the works instead of the Plaintiff and on the following day they took from him his business keys and informed him that he must not return to the works as he was not wanted and required him to deliver up all cash belonging to them. As a result of these acts the Plaintiff elected to treat the contract as repudiated by the Defendants and claimed damages for wrongful dismissal:

Held, that the Defendants had wrongfully repudiated their contract and the Plaintiff was therefore entitled to damages, inasmuch as the Defendants absolutely forbade him to fulfil any of his duties, they prevented him from exerting his opportunities as a manager to gain commission upon the net profits of the company and they decisively ended his attendance at the premises.

McCardic J. said:

On the other hand Mr. Sandlands forcibly argued for the Plaintiff that the events of January 1 and 2 obviously amounted to a repudiation of the Defendants'' contractual obligations and that they constituted a wrongful dismissal. (Para. 320)

Then McCardie J. said:

Now, in the ordinary case of wrongful dismissal a master purports completely to terminate the contract. He refuses to accept further service. He wholly declines to pay further remuneration. The repudiation, as a rule, is undoubted, decisive and complete. But if a claim for wrongful dismissal be founded on repudiation by the master, then I think that the general and recognised rules which apply in the case of ordinary contracts should apply also in the case of master and servant. (Page 321)

The learned Judge, then, said:

In every case the question of repudiation must depend on the character of the contract, the number and weight of the wrongful acts and assertions, the intention indicated by such acts or words the deliberation or otherwise with which they are committed or uttered and on the general circumstances of the case.

If the matters alleged to constitute a repudiation are contained in written documents; then it is for the Court to determine whether such documents evince a determination not to be bound by the contract. But if such matters consist of acts or conduct, then it is for the jury as judges of fact-to determine whether repudiation is established. (Para 322)

Then the learned Judge further said:

Dismissal may be effected by conduct as well as words. A man may dismiss his servant if he refuses by word or conduct to allow the servant to fulfil his contract of employment. The refusal must of course be substantial in the sense that it is not a mere repudiation of some minor rights of the servant or of non-vital provisions of the contract of employment. The question is ever one of degree. If the conduct of the employer amounts to a basic refusal to continue the servant on the agreed terms of the employment, then there is at once a wrongful dismissal and a repudiation of the contract. I see no distinction in such a case as the present between repudiation by the Defendants of their contractual obligations and ''a wrongful dismissal'' in the ordinary sense of that phrase. (Page 323)

In my view, the principles in In re Arbitration between Rubel Bronze and Metal Co. Ltd. and Vost Supra cannot be made applicable in this case because the facts and circumstances are entirely different. In any event, under the facts of this case and the evidence given by the Plaintiff, this is not a case of wrongful dismissal nor it is a case of forced resignation.

Mr. Dutta Majumdar, in course of his argument, very strongly relied on a recent decision of the Supreme Court in Lakshmi Amma and Another Vs. Talengalanarayana Bhatta and Another, where Grover J. said:

All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ex. B-3 and it was for the Respondent No. 1 to dispel the same.

Relying on this observation of the Supreme Court Mr. Dutta Majumdar argued that the Defendant in this case has entirely failed to do so with the result that the Plaintiff must succeed. In view of the argument of Mr. Dutta Majumdar, it is necessary to consider the facts and circumstances which raise grave suspicion as to the genuineness of the execution of the document to see whether the decision of the Supreme Court can apply under the facts and circumstances of the instant case.

The suit was instituted in the name of Narasimha Bhatta who was stated to be of weak intellect by his next friend and daughter Adithiamma for a declaration that the Will dated September 30, 1955, said to have been executed by him was invalid and also for the cancellation of the deed of settlement dated December 13, 1955, which had also been executed by Narasimha Bhatta in favour of the first Respondent and for other incidental reliefs. The case, as laid in the plaint, was that the Plaintiff, who was of advanced age, was suffering from diabetes for a long time and his physical and mental condition was very weak. The Respondent No. 1 was at first unsuccessful in getting a Will executed by him by which he bequeathed almost all his properties to the said Respondent. In December 1955, he was taken to. Mangalore by the Respondent No. 1 and there the latter managed to get executed Ex. B-3 by him. By this deed of settlement the entire properties which were considerable were given to the Respondent No. 1, the Plaintiff reserving only a life interest for himself besides making some provision for the maintenance of his wife Lakshmiamma. The Respondent No. 1 was able to obtain benefits under the settlement deed for himself owing to the weak intellect and old age of the Plaintiff. A declaration was thus claimed that the Will and the settlement deed was null and void and were not binding on the Plaintiff. The Respondent No. 1 contested the suit. He denied the existence of the Will and maintained that, the deed of settlement was not executed under undue influence or when the Plaintiff was in a weak state of mind. The Supreme Court observed Supra (1371):

We are satisfied that Narasimha Bhatta who was of advanced, age and was in a state of senility and who was suffering from diabetes and other ailments was taken by Respondent No. 1 who had gone to reside in the house at Sodhankur village a little earlier in a taxi along with Lakshmiamma to the Nursing Home in Mangalore where he was got admitted as a patient. No draft was prepared with the approval or under the direction of Nara simha Bhatta nor were any instructions, given by him to the scribe in the matter of drawing up of the document Ex. B-3. An application was also made to the Joint Sub-Registrar, Man-galore, for registering the document at the Nursing Home by some one whose name has not been disclosed nor has the application been produced to enable the Court to find out the reasons for which a prayer was made that the registration be done at the Nursing Home. Lakshmiamma, the wife of Narasimha Bhatta, who was the only other close relation present, has stated in categorical terms that the document was not executed by using pressure on Narasimha Bhatta while he was of an infirm mind and was not in a fit condition to realise what he was doing. The hospital record was not produced nor did the doctor who attended on Narasimha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the Will was not produced by Respondent No. 1 presumably because it must have contained recitals about the weak state of health of Narasimha Bhatta. The dispositions, which were made by '' Ex.B-3 as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimha Bhatta should have given everything to Respondent 1 and even deprived himself of the right to deal with the property as an owner during his lifetime.

After the aforesaid finding and observations the Supreme Court in the penultimate paragraph of the judgment held:

All these facts and circumstances raised a grave suspicion as to., the genuineness of the execution of the document Ex. B-3 and it was for the Respondent No. 1 to dispel the same.

Therefore, in my view, the aforesaid observation of the Supreme Court cannot apply under the facts and circumstances of the instant case.

Mr. Dutta Majumdar then argued that the plaint taken as a whole has amply complied with the rules of pleading under the CPC with particular reference to para. 23 and all the other averments related and relevant thereto. According to Mr. Dutta Majumdar, the Plaintiff has proved his case of wrongful dismissal and therefore, the Plaintiff ought to succeed. I cannot accept this submission of Mr. Dutta Majumdar.

Under the circumstances stated above, in my view, the letter of retirement of the Plaintiff was not procured by fraud or under influence or coercion or duress as alleged by the Plaintiff and further the Plaintiff was not wrongfully dismissed as alleged in para. 23 of the plaint.

In view of my above finding the issue No. (4) must be answered in, the negative and the issue No. (5) is also answered in the negative. In view of my answer to the issues Nos. (4) and (5), other issues raised in this case are not of much importance. However, I am answering the same as follows:

Issue No. (1) : The Plaintiff was the employee of the Defendant company is admitted. The salary and emoluments of the Plaintiff are not ^disputed. With regard to the age of retirement, the Plaintiff claimed in the plaint that as per established rules and practice the retiring age is 60 years for all employees and relied on Ex. 6, namely, memorandum of settlement dated April 12, 1967, between the management and the A.I.D., Shyamnagar Works Union. This memorandum of settlement provides that the age of superannuation of an employee of any category of daily rated workers or monthly-rated employees such as the clerical staff, the supervisory or the technical staff or the Watch and Ward staff, etc. is subject to retirement on his completing the age of sixty years. With regard to the established rules and practice, the oral evidence of the Plaintiff is not sufficient; but with regard to Ex. 6 this is a contract between the management and the members of the Works Union. There is nothing to show that these terms of settlement could be made applicable in case of the Plaintiff. Therefore, my answer to issue No. (1) is that the terms and conditions mentioned in para. 14 of the plaint are accepted except as to the age of retirement at 60 years in case of Plaintiff as claimed by the Plaintiff as the terms and conditions of his service.

Issue No. (2) : The Plaintiff accepted that the Defendant company was running at a loss (Bose, Q. 751). Further, it is admitted that the letter dated September 29, 1967, was handed over to the Plaintiff for his study and comments. Plaintiff Bose did make a pen-duplicate of the points he wanted to say and the reply to the letter dated September 29, 1967, was made by the letter dated October 23, 1967, on the basis of the pen-duplicate made by, Plaintiff Bose (Bose, Qs. 269-275 and 295-300). Therefore, it is not necessary to consider the question as to what is the exact percentage of loss or whether the loss is due to mismanagement or bungling by the management or somebody else. The evidence in this case does not show that the Defendant made any motivated attempt to malign the Plaintiff or to make a scape-goat of him. There was no charge made against the Plaintiff. The Plaintiff admitted that the Managing Director or any body else had no grudge or ill-feeling against him (Bose, Qs. 693-694), Therefore, my answer to this issue is in the negative and against the Plaintiff.

Issue No. (3) : In his oral testimony the Plaintiff stated that Mr. D.P. Sahai asked him to apply for a job elsewhere. This statement is denied by the Defendant. Mr. D.P. Sahai has not given evidence because he is no longer in the service and it is not known where he is now. The Acting Works Manager of the Defendant, Firke, denied the oral testimony of Plaintiff Bose on this point (Firke, Q. 37). I cannot answer this issue in favour of the Plaintiff on the oral testimony of the Plaintiff alone. It appears from the evidence tendered in this suit that Plaintiff Bose had full knowledge and understanding of his act. He is intelligent, capable and is a person with specialised training in England. He had sufficient time and opportunity to consider the letter of resignation which was signed by him. Mr. Dutta Majumdar, the learned Counsel on behalf of the Plaintiff, has criticised the evidence of Sri S.G. Roy, the Managing Director. As to the oral testimony of the Managing Director, there is no doubt some force in the submission of Mr. Dutta Majumdar. The statement made by Sri S.C. Roy contradicts the letter of the Solicitors for the Defendant, namely, that Plaintiff Bose desired to retire from service at the time when he met the Managing Director and two other directors. But I do not accept the contention of Mr. Dutta Majumdar that the evidence of Sri S.C. Roy shows that he bore anger or animus against Plaintiff Bose. Sri S.C. Roy stated that he never asked the Plaintiff to seek a job elsewhere. The Plaintiff also did not state that Mr. Roy asked him to seek a job elsewhere. In my view, the Plaintiff has failed to establish the case that the Defendant was bent upon getting rid of him as alleged in para. 17 of the plaint. The discrepancy or contradiction in the evidence given by Sri S.C. Roy and the written statement filed by the Defendant does not help the Plaintiff, because the Plaintiff has failed to prove the case made by him. Therefore, this issue is also answered in the negative.

Issue No. (4) : I have already answered against the Plaintiff.

Issue No. (5) : I have already answered against the Plaintiff.

Issue No. (6) : In view of my above answer this issue is also answered in the negative and against the Plaintiff. Here I should mention that on account of salary for one month after deducting the income tax, house rent, etc. a sum of Rs. 932-52 is due to the Plaintiff and the learned Counsel for the Defendant also stated that a sum of Rs. 1,170 for bonus for one year is still due to the Plaintiff. The Defendant offered to pay this sum aggregating Rs. 2,102 in full settlement of the claim of the Plaintiff against the Defendant. However, the Plaintiff declined to accept the said sum.

Issue No. (7) : The Plaintiff admitted in evidence that he got a job in October 1968 (Bose, Q. 1047). His pay was Rs. 1,400. But he said that it was a temporary job. According to the Plaintiff, he left the service either in May or June 1969 and he left the service because his health was not continuing to remain good and it was a temporary job (Bose Qs. 1047 to 1088). Although Bose admitted that he got a job with Shalimar Wire Industries Ltd., he did not mention this fact in the plaint. However, in view of my finding in issues Nos. (4) and (5) against the Plaintiff, these questions do not arise.

Issue No. (8) : The conduct of the Plaintiff shows that the Plaintiff not only wrote the letter of retirement but he acted upon the same. He withdrew the amount of gratuity. He also withdrew the providend fund amount including the company''s contributions. Only on August 2, 1968, he claimed compensation stating that he was compelled to sign the letter of the purported retirement under pressure and coercion. The allegations made in the amended plaint are not mentioned in this letter. The Solicitor''s letter of demand is dated December 2, 1968. Again, the letter of the Solicitor did not contain the allegations which have been made subsequently in the amended plaint. The letter dated February 1, 1968, was a letter signed by the Plaintiff and this letter of retirement was accepted. This issue is also answered against the Plaintiff.

In the premises, this suit is dismissed. But in view of the facts and circumstances of this case and particularly having regard to the fact that the Plaintiff has got no employment now, I will not saddle the Plaintiff with the costs of this suit.

Each party will pay and bear his or its own costs. Certified for two counsel.