An employer cannot, by any act of commission or omission, add or suffer to be added to the employment new conditions involving obligations, dangers or inconveniences which were not incident to it and were not within the contemplation of the employee when he was engaged.

1. This appeal has been filed by a number of teachers employed by the Civil Station Sub-committee, a branch of the Municipal Committee, Nagpur, (now replaced by the Corporation of the City of Nagpur) against the Corporation.

2. The suit was originally brought by 21 plaintiffs who, alleging that a common point of law and fact arose in the case, applied to join under O.1 R.1 and O.2, R.3, Civil P.C. The facts of the case are very simple. The Municipal Committee had assessed conservancy tax upon the Railway property situated in Nagpur, and a dispute arose as to the quantum. To solve the dispute the Railway and the Municipal Committee agreed to take a census of persons using the latrines and urinals attached to the Nagpur railway station.

Both sides arranged for a count of such persons, and the Municipal Committee wanted to employ these teachers for this purpose. The count was to take place on 30th and 31st March 1945. Prior to this, the Municipal Committee sent a rather peremptory notice, probably anticipating trouble, to each teacher worded as follows: He is directed to be present in the Office of the Health Supervisor, Civil Station Sub-Committee on 29-3-1945 at 3 p.m. without fail for receiving instructions. Failure on his part will be considered as disobedience of orders and he will be suspended forthwith.

The teachers assembled and were told to attend the latrines to count the persons using them. They declined. The Municipal officers, taking umbrage, suspended them from 4-4-1945. A departmental enquiry was held and though they were not asked to quit, the period of suspension was ordered to be treated as leave without pay and 3/4ths of their salary and the dearness allowance due to them for that period were not paid. The present suit is to recover them.

3. The trial Court found in favour of the plaintiffs and granted them a decree. This was reversed by the First Additional District Judge, Nagpur, and hence this second appeal.

4. The short question that arises is whether the plaintiffs were within their rights to refuse to undertake this new duty, or conversely, whether the Municipal Committee could compel them to undertake this task on pain of the penalty imposed. The learned counsel for the Corporation in support of the judgment of the learned Additional District Judge relies on bye-laws 3 and 8 of the Civil Station Sub-committee, Nagpur. Bye-law 3, 'inter alia', provides that the President shall have the power to transfer municipal servants from one post to another in the same department or outside the department on the same scale of pay. This bye-law has nothing to do with the present controversy, because admittedly the teachers were not transferred to the Conservancy Department; they were asked to do this duty while they were teachers.

5. The following extract from bye-law 8 was then referred to: He shall exercise control over all the departments of the Civil Station Sub-Committee and all municipal officials and servants. It shall be his duty to do or cause to be done all things necessary for carrying on the work of the Civil Station Sub-Committee.

This bye-law, again does not refer to the matter we have in hand. It is an empowering bye-laws empowering the officer concerned to do or cause to be done all things necessary for carrying on the work of the Civil Station Sub-Committee. It has nothing to do with asking a municipal employee to do another kind of work without his consent. There being no other provision brought to our notice, the matter will have to be examined under the' ordinary law of master and servant.

6. Now, the rule of law governing the present facts was stated by Mookerjee and Chotzner JJ. in - ' L.W. Middleton v. H. Playfair, 1925 AIR(Cal) 87 at p. 91 (A), in the following words: It is one of the implied stipulations of a contract or service that the employer will not, by any act of commission or omission, add or suffer to be added to the employment new conditions involving obligations, dangers or inconve