Wrongful dismissal with retrospective effect and the determination of compensation based on the standard of notice period.

( 1 ) A very short point calls for our decision in this appeal, viz. , whether dismissal of an employee can be made with retrospective effect; if not, what should be the compensation payable to such an employee.

( 2 ) ON 1-10-1943, the plaintiff appellant was appointed temporarily as a sub-overseer under the District Board of 24-Parganas. He was appointed substantively in the post, with effect from 21-3-1945. His scale of pay on substantive appointment was Rs. 50-5-150/ -.

( 3 ) IN May, 1947, the plaintiff appellant was transferred to Basirhat. His activities while posted at Basirhat have brought about the present situation.

( 4 ) ON 17-6-1947, Hriday Bhusan Chakravarty, President Bhojerhat Union Board, addressed a note to the Secretary of the District Board complaining that the bill of costs for earth work done on Tardah Road had been excessively inflated. The appellant prepared the bill, and the bill was payable to the contractor for the earth work, one A. K. Roy Choudhury. There was an, enquiry held in the matter, and on enquiry, the complaint made by the President of the Union Board was found to be substantially correct.

( 5 ) ON 1-9-1947, departmental proceedings were started against the present appellant and charges were drawn up against him by the Secretary of the District Board. The plaintiff appellant was asked to show cause against false measurements and drawing up of inflated bills, as complained against by the President of the, Union Board.

( 6 ) ON the same date the plaintiff was placed under suspension and the plaintiff appellant made over charge of his office on 3-9-1947.

( 7 ) THE plaintiff appellant participated in the departmental enquiry, as a result of which the plaintiff appellant was found guilty and was ordered to be dismissed.

( 8 ) THE order of dismissal (Exhibit 4) is dated 1-11-1947, and it shows that the plaintiff appellant was dismissed with effect from 3-9-1947, viz. , the date when he made over the charge of his office on suspension.

( 9 ) AGAINST the order of dismissal, characterised by the plaintiff as wrongful, the plaintiff filed a suit for damages, claiming Rs. 2100/ -.

( 10 ) BOTH the Courts below dismissed the plaintiff's claim and hence this appeal by the plaintiff.

( 11 ) MR. Das Gupta appearing on behalf of the plaintiff appellant urged that the order of dismissal, with retrospective effect, was on the face of it an illegal order and amounted to a wrongful dismissal of the plaintiff from office. In support of his contention, Mr. Das Gupta relied on a decision of Bose, J. reported in 61 Cal WN 880, Abdul Hamid v. District School Board, 24-Parganas.

( 12 ) MR. Mitter appearing for the respondent did not contest the proposition of law, but made a grievance that the aforesaid plea was not taken in the plaint.

( 13 ) WE have examined the plaint ourselves and we find that the dismissal with effect from 3-9-1947, was pleaded in Paragraph 10 of the plaint, and in Paragraph 13 dismissal was characterised as wholly wrongful and illegal. That being so, we are of opinion that the plaintiff is not hit by the law of pleading, and the order of dismissal, with retrospective effect, was substantially pleaded as a wrongful order.

( 14 ) THAT being so, the plaintiff appellant has succeeded in making out a case of wrongful dismissal, and the only question, which remains for us to decide, is to what damages he is entitled to.

( 15 ) THERE is no statutory rule, framed by the District Board, as to what should be the period of notice of discharge. Therefore, if the plaintiff was to be discharged, he would be entitled to reasonable notice. Since we hold that the dismissal of the plaintiff was wrongful, we are to act by the standard of compensation that would have been payable to the plaintiff appellant, if instead of being dismissed he would have been discharged on notice, In a case, similar to the present one, reported in AIR 1938 All 276, Prabhulal Upadhyaya v. District Board of Ag