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Harisingh Vijaysingh Vs. Fatehsingh Narayan - Court Judgment

LegalCrystal Citation
SubjectService;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSmall Cause Revn. Nos. 61 and 65 of 1952
Judge
Reported inAIR1957MP46
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 2; Contract Act, 1872 - Sections 73
AppellantHarisingh Vijaysingh
RespondentFatehsingh Narayan
Appellant AdvocateR.G. Waghmare, Adv. in Sm. C. Revn. No. 61 of 1952 and ;J.D. Patel, Adv. in Sm. C. Revn. No. 65 of 1952
Respondent AdvocateJ.D. Patel and ;R.G. Waghmare, Advs.
Cases ReferredUrban Bank Ltd. v. Venkatapathi
Excerpt:
- - no questions were asked to the plaintiff in cross-examination in support of the defence that he had merely recommended the plaintiff to bharatsingh for employment......in support of plaintiff's revision petition no. 65 of 1952 that the plaintiff had claimed one month's salary in lieu of notice because the defendant had terminated plaintiff's services without assigning any reason and without giving him any prior notice. the claim, according to him, would be in the nature of damages claimable under section 73 of the contract act and having regard to the nature of the employment one month's salary would be the reasonable measure of damages in such a case. he relied for this view upon the observations in halsbury's laws of england, lord hailsham edition, volume 22, page 150, paragraph 249 and the decisions reported in them pe v. j. p. de souza, air 1929 rang 167 (a) and minakshi mills ltd. v. anantarama ayyar, air 1930 mad 654 (b).8. as regards tbe.....
Judgment:
ORDER

Nevaskar, J.

1. Plaintiff' Fatehsingh sued defendant Harisingh for the recovery of Rs. 388-10-0. The suit related to the arrears of salary which the plaintiff was entitled to claim from the defendant. These arrears were said to be at the rate of Rs. 150 per month and were in respect of a period of three months. According to the plaintiff Rs. 61-12-0 were received by him towards this amount of Rs. 450-6-0 and the balance of Rs. 388-10-0 is claimed in the suit.

2. The defendant denied plaintiff's claim. He denied that he had ever employed the plaintiff as a driver. He owned no truck. According to the defendant the plaintiff was working with one Bharatsingh who has absconded and the plaintiff being unable to recover his money has brought a false suit against him.

Before the plaintiff was employed by Bharatsingh he was, according to the defendant, without any work. He requested the defendant to find an employment for him and he had pointed out the name of Eharatsingh to him. For such a suggestion he could not be made legally liable.

3. The trial Court on evidence came to the conclusion that the plaintiff was entitled to recover arrears of salary only in respect of the period of one month and 25 days for which he actually worked. He was not entitled to recover salary of one month in lieu of notice as was claimed by the plaintiff. He therefore granted a decree for Rs. 233-10-0.

4. Both the parties have preferred separate revision petitions. Plaintiff's revision petition is No. 65 of 1952 and defendant's revision petition No. 61 of 1952.

5. Mr. Waghmare who appears for the defendant contended that having regard to the materials on record no Court acting judicially could have held that the plaintiff was employed by the defendant as a driver on Rs. 150 P.M. from a date specified in the plaint and that he worked for a period of one month and 25 days.

The learned counsel pointed out from the statement of Dinkar that the truck bearing No M.B.K. 1279 which corresponded to No H.S.C. 2849 stood in the name of Bharatsingh in the Goods and Civil Register of the Regional Transport Office.

6. Mr. Patel, who appears for the other side, on the other hand contended in support of the decree of the lower Court that the plaintiff had examined two witnesses Yusuf and Daulatsingh to corroborate his statement with regard to plaintiff's employment by the defendant. The plaintiff had stated on oath that he had worked with the defendant as a driver on Rs. 150 P.M. for one month and 25 days. The plaintiff had served a notice to the defendant which the defendant refused to accept.

No questions were asked to the plaintiff in cross-examination in support of the defence that he had merely recommended the plaintiff to Bharatsingh for employment. According to the learned counsel the fact as to in whose name the truck stood was not material when actual employment by the plaintiff is proved. Having regard to the nature of the contentions actual date of employment is not so material as the very fact of employment was in issue.

7. Mr. Patel further contended in support of plaintiff's revision petition No. 65 of 1952 that the plaintiff had claimed one month's salary in lieu of notice because the defendant had terminated plaintiff's services without assigning any reason and without giving him any prior notice. The claim, according to him, would be in the nature of damages claimable under Section 73 of the Contract Act and having regard to the nature of the employment one month's salary would be the reasonable measure of damages in such a case. He relied for this view upon the observations in Halsbury's Laws of England, Lord Hailsham Edition, Volume 22, page 150, paragraph 249 and the decisions reported in Them Pe v. J. P. De Souza, AIR 1929 Rang 167 (A) and Minakshi Mills Ltd. v. Anantarama Ayyar, AIR 1930 Mad 654 (B).

8. As regards tbe defendant's revision petition the view of the lower Court appears to have been based upon the conclusions which he drew from the statements of the parlies and the plaintiff's witnesses Yusuf and Daulatsingh. It appears implicit in the statement of the defendant that the plaintiff had worked as a driver. What appears to be his contention is that it was Bharatsingh who was liable and not himself because the truck stood in his name.

The statements of plaintiff, Yusuf and Daulatsingh however indicate that the contract of employment was made not by Bharatsingh but by the defendant himself. This is a finding of fact. The circumstance that the truck stood in the name of Bharatsingh is not such as would make It highly improbable that the defendant should have employed the plaintiff. The conclusion drawn by the Court below on the evidence referred to above cannot be said to be such that no Court acting judicially could have legally reached.

9. As regards the revision petition filed on behalf of the plaintiff Mr. Waghmare's main defence is that in the plaint it had not been specifically alleged that the plaintiff was claiming the amount of Rs. 150 by way of damages for wrongful termination of his services. In the absence of such a definite pleading the defendant is bound to be prejudiced in his defence.

10. As regards the cases cited on behalf of the plaintiff they were sought to be distinguished on the ground that in all these cases claim for damages for wrongful termination of the services was specifically made.

11. In my opinion the contention raised by Mr. Waghmare cannot be accepted. The pleading when looked at carefully indicates in substance that it was a claim for damages. The plaintiff definitely asserts that his employment was terminated by the defendant without assigning any reason and without giving any notice abruptly. This was sufficient statement of facts to give rise to the claim for damages. The defence was taken that there was no employment at all and in view of this defence it cannot be said that the defendant was taken by surprise in his defence.

12. The fact that the defendant's plea with regard to non-employment by him did not succeed cannot be a ground for supporting the contention that the claim for damages is not tenable. In Halsbury's Laws of England, Lord Hailsham Edition, Volume 22, page 150, Section 249, it is stated that if no usage or stipulation as to notice exists, and if the contract of service is not one which can be regarded as a yearly hiring, the service is terminable by reasonable notice. At the foot-note cases are considered with respect to various employment and what in each case is considered to be a reasonable notice having regard to its nature is indicated.

13. In AIR 1929 Rang 167 (A), a person was engaged as a teacher on the basis of a monthly salary. There was no agreement providing for notice to leave on either side. The employee was turned out from the service without any notice. It was held that under the circumstances he was entitled to claim one month's salary as a fair measure of damages for the termination of the employee's services.

14. In AIR 1930 Mad 654 (B), there was a question with regard to the validity of the claim for damages for wrongful termination of services of a qualified person as an engineer for constructing a mill-building. It was held in that case that claim for damages measured by 12 months' salary would be considered as fair.

It was observed by Ramesam, J., who delivered the judgment in that case that the measure of damages for breach of promise is obtained by considering what is the usual rate of wages for the employment contracted for and what time would be lost before a similar employment could be obtained.

15. Similar view appears to have been taken in Bhavani Kudal Co-operative Urban Bank Ltd. v. Venkatapathi, AIR 1956 Mad 150 (C).

16. In my opinion having regard to the principle laid down in these cases, with which I respectfully agree, the plaintiff is entitled to claim one month's salary as damages.

17. The result is that the defendant's revision petition No. 61 of 1952 is dismissed and plaintiff's revision petition No. 65 of 1952 is allowed and the plaintiff is awarded a further sum of Rs. 150.

18. Plaintiff is further entitled to his costsof both these revision petitions.


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