1. The question that has been raised in this application for revision is whether the plaintiff who was employed by the defendant as a clerk was entitled to a month's notice on dismissal in the circumstances stated in the judgment of the trial Court. It is contended on behalf of the applicant by Mr. Shambhu Nath Seth that the practice between master arid servant is for either side to give a month's notice for termination of their contract, or in lieu of a month's notice, one month's salary must be paid to the servant unless he has been guilty of wrongful conduct. No objection has been taken on behalf of the opposite party to this statement of the law, and the question is whether in the circumstances in this case the applicant forfeited his right to a month's notice or salary in lieu thereof by wrongful conduct.
2. The plaintiff fell ill in March 1933, and was absent from his work, and he made an application for leave on March 17. The defendant allowed him four days leave, but the plaintiff continued to be absent from illness until March 28, when he was allowed to resume his work. He continued to work until April 5, but on the 6th it is said he was attacked by dysentery and again applied for leave. No order granting him leave was sent to him, button the 8th the defendant wrote to him to say that his services were dispensed with. The trial Court has found that the plaintiff was in the wrong and could not claim damages in lieu of notice. It is urged that there was no wrongful conduct on his part because he did not misconduct himself in any way, but he merely fell ill and was unable to work. There is some authority for holding that in matters like this it is impossible to distinguish between a servant who will not and a servant who cannot perform the duties for which he was hired. See the case of Detaram v. Forbes 1930 Sind 17, in which a Bench of the Sind Judicial Commissioner's Court followed the English Law on the subject. In interpreting the law it is necessary of course to consider the matter strictly as one of contract and not to be swayed by sentimental considerations. It is unfortunate for the plaintiff that he was ill, but whether the law will compel him or his employer to suffer for the consequence of his illness is another matter. There was no specific contract between the parties to cover this exact case, and the consequence is I am afraid, that if the plaintiff was unable to perform the duties entrusted to him, that is to say, to carry out his contract to work regularly, he must be held to have been guilty of wrongful conduct. I cannot therefore hold that the decision of the trial Court is otherwise than in accordance with law, and the application is dismissed with costs.