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RAFIQ AHMED--Plaintiff
versus
Messrs JOINT VENTURE, BASRAH INTERNATIONAL
AIR PORT and another--Defendants
Suit No. 577 of 1981, heard on 4th March, 1987.
(a) Contract Act (IX of 1872)--
---S. 73--Breach of contract, proof of--Plaintiff taken abroad by defendant establishment in the category of mechanic--Plaintiff's category of employment changed in breach of terms of contract and his salary reduced--Plaintiff left employment and on return back to country filed suit for damages for breach of contract--None of the persons who allegedly changed the card and category of employment of plaintiff having been examined, the denial thereof by a witness who was not at the spot at the relevant time, held, was nothing but hearsay evidence which could not inspire any confidence--Plea of plaintiff that his category of employment was changed arbitrarily remained unshaken in circumstances.
(b) Contract Act (IX oaf 1872)--
---S. 73--Breach of contract, responsibility for--Determination of- Letter of resignation by plaintiff set up as a bar to breach of contract on part of defendants--Effect--Where letter of resignation was procured by defendants after violating original contract of employment of plaintiff by pressing him to do a job other than the one and inferior in status to the job for which he was employed, defendant, held, had already broken the contract and refusal of plaintiff to work whether through resignation or otherwise could not be said to be unjustified.
A I R 1954 Mys. 176 ref.
(c) Contract Act (IX of 1872)--
---S. 73--Breach of contract--Damages for--Claim for overtime work and leave salary whether sustainable--Claim for overtime and leave salary being too remote and anticipatory and as claim for such emolument would depend on chance-and uncertain opportunities, same, held, could not be entertained.
A I R 1954 Travancore-Cochin 194ref.
(d) Contract Act (IX of 1872)--
---S 73--Breac., of contract--Defendant/employer's right to terminate contract in lieu of one month's salary as per terms of contract repelled--Termination like engagement, held, was a matter of fact, both being motivated by exigencies of particular situation--Defendants could invoke terms of contract and serve plaintiff with notice of termination but instead defendants rescinded the original contract by unilaterally changing conditions of performance--Plea of resignation of plaintiff consequent upon change of his category of employment and plea to the exercise of defendants that they having never exercised option of early termination of contract which they had a right to do now, repelled--Defendants, held, could not be permitted to take a summer-Sault and bridge the 5reach by catching up the straw of termination clause.
PLD 1954 Lah. 451; PLD 1971 Kar. 833; AIR 1938 Mad. 672; PLD 1967 Karachi 1; Baker v. The Denkera Ashanti Mining Corporating (Limited) (T.L.R. 20 1903-1904) and (1910) I.K.B.D. 396 ref.
(e) Contract Act (IX of 1872)--
---S. 53--Breach of contract--Damages, assessment of--Defendants, held, were liable to pay to plaintiff the salary for the entire unexpired period which was to be calculated as per terms of contract per month minus average earning of plaintiff--Suit of plaintiff was decreed accordingly.
Muhammad Ashraf Bhatti for Plaintiff. R.F. Virji for Defendants. Date of hearing: 4th March, 1987.
Plaintiff is a mechanic by profession. He has a road-side workshop where he carries on the repairing work of the motor cars. Defendant No.l M/s. Joint Venture is a company which was dealing with a project at Basrah Airport in the early 1980. Defendant No.2 is a Recruiting Agency, who used to engage and employ labourers and personnel in Pakistan and used to send them to Basrah to work for the Defendant No.l in connection with their Airport project at Basrah. It appears that the work force which was being recruited by the Defendant No.2 for and on behalf of Defendant No.l was to be absorbed in different jobs and the salaries and emoluments of the employees varied from category to category and according to the nature of work for which they were recruited.
2. The plaintiff has filed this suit for the recovery of Rs.1,08,310.00 for an alleged breach of contract which has occurred in the circumstances described in the plaint. It is stated in the plaint that after reading advertisement in the local Newspaper that the Defendants required some mechanics, the plaintiff approached the Defendant No.2 for a job of small car mechanic. The defendant No.2, after testing the skill and capability of the plaintiff for the job selected him to be sent to Iraq to serve with the Defendant No.l. After this selection the Defendant No.2 demanded a sum of Rs.5,000 as their fee and other expenses. The plaintiff paid this amount to the Defendant No.2 and on 6-4-1981 formal agreement was executed between the parties. This agreement is Ex.6. The important features relevant for the purpose of the suit in this agreement are that the period of contract was two years, probation period three months, Vacation/leave 20 days per year, weekly holidays on Friday, rate of pay 93 Iraqi Dinars per month, overtime rate 150% and free accommodation or housing allowance to be paid by the employer. After this agreement was signed, the plaintiff was provided an Air-Ticket and flew to Iraq to join his duty with the Defendant. The plaintiff reported for duty at Basra on 10-4-1981. What happened there has been stated by the plaintiff and it would be better to reproduce this story in his own words. It runs as follows:----
"9. That on reaching Iraq the plaintiff was allotted Gang Card. No.600 which is meant for the said job for which the plaintiff was appointed but on the next date the defendant No.l transferred the plaintiff and asked him to do the menial job of a House Boy and his salary was reduced to Iraqi Dinar 60 per month. He was also allotted Gang Card No.100, which is meant for the menial job only.
10. That this act of the defendant No.l of transferring the plaintiff to menial job and reduction of his salary from 90 to 60 Iraqi Dinars per month was opposed and in violation of the terms and conditions of the said agreement.
11. That as per agreement the defendant No.l was bound to give to the plaintiff a job of a mechanic or any other similar job but in no way neither plaintiff could be transferred from the Car Motor Mechanic to the job of House Boy, nor his salary could be reduced less than the agreed amount.
12. That the plaintiff insisted and requested the Defendant No.l to assign him the job for which he made the agreement or similar to that but the Defendant No.l arbitrarily terminated his service and was forced to leave Iraq by 15-4-1981."
The plaint proceeds to state that when the Defendant No.l insisted to put the plaintiff on a menial job with consequential reduction in salary from 90 Iraqi Dinars to 60 Dinars, an unbearable situation was created obliging the plaintiff to give up the employment. As the passport and other travel documents were in custody of the Defendant No.l, the plaintiff could not even return to Pakistan. The Defendant No.l insisted for execution of a formal written resignation from the plaintiff as a condition precedent for return of his passport and other travel documents including the return ticket. In this situation the plaintiff executed Ex.22/3 which is termed a resignation by the Defendants. This was executed by the Plaintiff on 13-4-1981 and deserves to be reproduced in extenso:
"To
Joint Venture Basrah
Airport.
Sub: Resignation.
Dear Sir,
Due to the fact that you appoint me to drive the dumper whereas I 'am small car mechanic according to the contract and as I can't work as Cleaner. so you are requested to accept my resignation and send me back home.
Regards.
(Sd) Rafique Ahmed
13-4-1981"
As a result the Defendant No.l released the necessary documents of travel and also provided the plaintiff with a return ticket and the plaintiff landed back in Karachi. On reaching Karachi the Plaintiff served a notice dated 24-6-1981 (Ex.ll) in which he demanded the refund of Rs.5,000 which he had paid earlier and also the salary for a period of two years amounting to Rs.62,960.00 calculated at the rate of Rs.2,790 per month which is equivalent to 93 Iraqi Dinars. He also demanded 40 days leave salary as Rs.3,720.00, overtime as per agreement for three hours per day @ 150 % for a period of two years amounting to Rs.36,000. The total claim lodged in this notice was Rs.1,07,680.00 which ,the Defendant, according to the notice, were called upon to pay within two weeks. The Defendant No.2 replied to this notice disputing the claim and refusing to pay anything. The plaintiff has, therefore, filed the present suit on 5-9-1981, and has prayed for a decree in the sum of Rs.1,08,310 as already stated by me earlier.
3. The Defendants have admitted the recruitment of the plaintiff. They have also admitted that the plaintiff was sent to Iraq. The only controversy which remains to be resolved is whether the breach has occurred on account of the default of the Defendants or the plaintiff. The Defendants have denied the receipt of Rs.5,000 They have, however, accepted that a sum of Rs.2,000 was paid to them by the plaintiff. In reply to the allegation regarding change of job which resulted in the parting of the ways between the parties, the Defendants have put their story in paras. 9 to 14 of their Written Statement which is as follows:-
"9. That paragraphs 9 and 10 of the plaint are denied. The allegation that he was required to do menial job of a house boy is also denied. The allegation of reduction of his salary is denied. All untoward allegations are denied. he Plaintiff collected 10 Iraqi Dinars on 12-4-1981 and on 13-4-1981 he resigned.
10. Paragraphs 11 and 12 are denied. Defendant No.l did not terminate the services of the plaintiff nor forced him to leave Iraq, but the plaintiff himself gave resignation on 13-4-1981.
11. Paragraph 13 of the plaint is totally denied. The plaintiff could have had access to Pakistan Labour Attachee or move the local labour courts.
12. Paragraphs 14 and 15 are denied. Plaintiff wilfully signed the agreement and accepted the job.
13. Paragraph 16 is denied. Defendant did not terminate the services, but Plaintiff himself gave the resignation after 2 days of joining his services. He joined service on 11-4-1981, took the allowance of 10 D., and resigned on 13-4-1981.
14. Paragraph 17 is denied. Plaintiff himself has violated the terms and conditions of the said agreement and Defendant No.2 have suffered the entire loss which arose from the breach of contract made between the Plaintiff and the Defendants. The alleged claim of Rs.1,08,310 is categorically denied as ficticious, misconceived and untenable. The Plaintiff has also committed a violation of the Emigration Act and Rules 1979 and breach of the foreign Service Agreement."
4. On these pleadings of the parties three very clean issues were framed which are as follows:-
(1) Whether the plaintiff paid Rs.5,000 to the Defendant No.2 before signing the service agreement. If so what is its effect
(2) Whether the defendants committed breach of the service agreement by transfering the plaintiff from Gang Card No.600 to Gang Card No.100
(3) Whether the plaintiff has suffered any loss. If so to what extent and are the defendants jointly and severally liable
5. Now I will proceed to deal with them seriatim.
Issue No. 1.
The plaintiff states that he was made to pay Rs.5,000 while the Defendants denies this allegation .D.W. No.l Anwar Ali has admitted the receipt of Rs.2,000 which, according to this witness, was the usual charge for such recruitment and in his own words "this amount of Rs.2,000 is deposited in the bank. Out of that amount Rs.1,450 are recoverable by us and Rs.550 is received by the Government for welfare funds".
The plaintiff has not been able to prove that he paid anything over and above the sum of Rs.2,000. Even this amount of Rs.2,000 was the usual expenses which was realised by the Defendant No.2 at the time of recruitment and was willingly paid by the plaintiff. In my opinion nothing is refundable from this amount of Rs.2,000, because the employment for which they were charged, materialised and the employee was despatched to the place of work after his recruitment.
Issue No.2.
This is the most important and crucial issue in the case on which both the parties have come out with different versions. The very important feature is that the story set up by the plaintiff which is supported by the circumstantial evidence in the case, remains unrebutted. the denial has come not from the persons, who were directly responsible for the breach namely, the Defendant No.l M/s. Joint Venture, but from Defendant No.2 M/s. Feedai Agency, who on hear say from Defendant No.l has denied the specific allegations made on oath by the Plaintiff. The Plaintiff in his statement on oath has stated as follows:-
"When I reported for duty at Iraq I was allotted Card No.600 which is meant for Auto-Mechanic job. I produce the same as Exhibit 22/1. The Card was filled in my presence by some one from the office of the Defendant No.l at -Iraq. After taking the Card when, I was proceeding to my job on the way, I was asked by Mr. Kelin to start work of removing of wastage (Kuchra) etc, on the run-way which was under construction. Other persons were also doing the same job. I protested to the nature of work given to me but, I was compelled to do the same work and, I then, I had no option but to do that work. I had protested because the work which, I was asked to do was not the same for which, I was selected /appointed under the card issued to me. When, I was talking with Mr. Talha, the Incharge of the office at Iraq and protested about the job which was assigned to me at the site, in the meantime Mr. Kelin came and he took the card from me and immediately changed its gang number from 600 to 100 without my consent."
It is further stated on oath that:
"Card No.100 is allotted by the Defendant No.l for the job like house-boy or sweeper. On enquiry from Mr. Talha who is Incharge of the office at Iraq, has told me that your salary has been reduced from 93 Iraqi Dinars per month to 60 Iraqi Dinars per month. If my salary would not have been reduced then I was willing to do any nature of job including removal of wastage. Mr. Talha sent for Mr. Kelin and informed him that the Plaintiff is willing to work of any nature provided his salary was not reduced but Mr. Kelin told him if the plaintiff is not accepting 60 Iraqi Dinars per month, he could go back to Pakistan. Then I was asked to leave Iraq and to collect the papers from the office and go back to Pakistan."
6. It is to be noted that these are specific allegations made against the authorities in Iraq. Neither Mr. Talha nor Mr. Kelin, who are representatives of the Defendant No.l, have been examined to deny these allegations either by calling them to 'Court or on commission. The denial of these allegations by Anwar Ali, who has been examined as D.W. No.l by the Defendant No.2 is to be read in the light of the following back-ground before any reliance can be placed on this denial. To a Court question this witness has answered "during the period the plaintiff landed in Iraq at the Basra Airport till period when the plaintiff left for Pakistan I was not in Iraq." He has further admitted "we also gathered information about his resignation during the visit of one of our Directors Mr. Sadruddin, who visited Iraq in September, 1981 to make enquiry into the above matter".
7. This witness has admitted that originally the plaintiff was issued Card No.600 but subsequently he was issued Card No.100. According to the plaintiff the category of Cards is related to the category of employment. While Card No.600 is for mechanics Card No.100 relates to the menial jobs carrying muchless salary and emoluments. None of the persons, who changed the Card and the category, has been examined and the denial of the witness, who is sitting in Karachi is A nothing but a hear say evidence which cannot inspire any confidence. I have no hesitation to hold that the case set up by the plaintiff remains unshaken.
8. Now I come to the most contested document Ex.22/3 which has been produced and relied upon by both the parties. According to the plaintiff, this document came to be executed by him under pressure that the travel documents would not be returned to him if he does not execute such a document. It is, therefore, debatable whether this document which is called a resignation by the Defendant was a voluntary resignation on the part of the plaintiff or he was made to sign this document under pressure, as alleged by him. It is also said by the plaintiff that he does not even understand English and this document is not in his handwriting. He was made to sign on the document which was written by someone else.
9. Keeping aside this controversy. The main question that arises is whether the plaintiff has broken the contract or the breach has B occurred on account of the conduct of the Defendant which has been followed by this letter. If this writing is carefully read and analysed it reveals that the breach had already occurred before this was executed. In other words this so-called resignation was procured by the Defendants after violating the original contract of employment of the plaintiff by pressing him to do a job other than the one and inferior in status to the job for which he was employed carrying a salary at least 30 per cent less than the salary he had agreed to accept under the original agreement /contract. It is evident that the Defendant had already broken the contract and as such the refusal of the plaintiff to work, call it a resignation or refusal cannot be said to be unjustified.
10. I would, therefore, answer this issue by saying that the Defendant No.l have committed breach and are liable for the consequences. They have to compensate the plaintiff for the breach they have committed.
11. After the discussion on Issue No.2 the only question that remains to be discussed is what would be the quantum of damages or compensation to be awarded to the plaintiff. Learned counsel for both the sides have argued their cases on this issue as well. Learned counsel appearing for the Defendant has rightly contended that the plaintiff's claim for over-time and leave salary is a presumptive claim. Whether there was an,, necessity for any over-time work during the employment of two years and if so, to what extent, is all a matter of imagination. This was not a part of the salary. It was merely a prospective source of income which could or could not be materialised. In support of this part of his argument counsel has cited A.I.R. 1954 Mysore 176. This case is not of much assistance because it was a case where the employee 's services were terminated during the period of probation which is not the case on hand. The other case is A.I.R. 1954 Travancore-Cochin. It is on page 194. In this case a School Teacher, who was to retire at the age of 60 years was given premature retirement by the management. Aggrieved by this termination, the teacher filed a suit for damages for his wrongful dismissal from service. He included in his claim not only the basic salary but also claims for further emoluments and fringe benefits that would have accrued to him if he had the opportunity to serve for remainder of his term. Disallowing the claims for fringal benefits, it was observed in para. 16 on page 112 as follows:-
"The possibility of the termination of service at any time during that period, on account of death or of physical or mental disability or on account of other justifiable causes, cannot be ruled out. The assumption that there would have been a progressive increase in the salary of the plaintiff by regular increments and higher scales of pay on account of promotions, is equally bad for uncertainty. Promotions and the consequent increase in salary cannot be taken to be automatic but can be expected to follow only from the acceptance of the service as satisfactory and creditable. The damages claimed on the basis of an anticipation or assumption of ail these factors in favour of the plaintiff can only be termed as too remote and such a claim will not be countenanced by a Court of Law."
12. I respectfully agree with the views expressed in the preceding paragraph and it would be correct to say that the claim for over-time work and the leave salary is too remote and anticipatory and as the claim for such an emolument would depend on chance and on uncertain opportunities it cannot be entertained. I would, therefore, disallow) the claim for overtime and the leave salary.
13. Learned counsel for the plaintiff has argued that as the Defendants have committed the breach of contract, the plaintiff should be awarded full compensation which would be the salary for the unexpired period. Learned counsel relies on Section 73 of the Contract Act which runs as under:-
"73. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss of damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it."
This section admits in principle the right of the party, who has suffered at the hands of its adversary to be compensated for the wrong done to him. In this connection mention may be made of the observations made by S.A. Rahman, J. (as he then was) in the case of 'Mehtab Din and others v. Malik Fazal Hussain' (P.L.D. 1954 Lah. 451). The learned Judge said "the underlying principle by which Courts are guided in awarding damages is restitution in integrum. This means that the Courts will endeavour, so far as money can do it, to place the injured person in the same situation as if the contract had been performed." This principle of English Law has been codified. in Section 73 of the Contract Act.
14. Learned counsel for the plaintiff relying on the principle enunciated above, claims full compensation for his client which, as stated above, is the amount of salary for the unexpired period. Of course, it goes without saying that in calculating this compensation, deductions have to be made of the earnings which the plaintiff has been making after his return from Iraq, because this would be in consonance with the explanation to Section 73 of the Contract Act which may be quoted as follows:-
"In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account."
15. It is admitted position in the case that the plaintiff on return from Iraq has again picked up his tools and again engaged himself in the profession of a mechanic which he was doing before he left for Iraq and is earning something between Rs.1,500 to Rs.2,000 per month. I would have awarded him damages on the basis of difference between the contracted salary i.e. Rs.2,790 (being equivalent to Iraqi Dinars 93) and the average earnings of the plaintiff at the rate of Rs.1,750 per month. This would have come to about Rs.24,960. The salary for the unexpired period has been paid in a number of cases. Reference may be made to the case of Mr. Rahim Bux Munshi reported in P.L.D. 1971 Kar. 833. In this case it was held that the premature termination of service of Mr. Rahim Bux Munshi from the office of Chairman of the Central Industrial Court, Karachi entitled him to compensation equivalent to the salary of unexpired period. I may quote para-19 from the judgment of the learned Single Judge, who decreed the suit of the plaintiff in this case Para 19 runs as follows:-
"19. As discussed by me above, plaintiff's contract of service was for a definite period and has been terminated before its completion. In these circumstances the plaintiff is entitled to a salary for the remaining part of the period at the stipulated, rate. There is no plea or evidence of any nature on record in mitigation of damages. Agreeing, therefore, with the view expressed by a Division Bench of the Madras High Court in Muna Sona Sundaram' Chettiar v. Sona Theeanna Chokalingam Chettiar (A.I.R. 1938 Mad. 672) I hold that the plaintiff is entitled to be compensated for the period from 1-2-1964 to 20-6-1965 by an amount calculated at the rate of Rs.4,000 per month less the pension drawn by the plaintiff for the same period. "
It would not be without interest to make a mention of the Madras case mentioned by the learned Judge in the judgment. This case is reported in A.I.R. 1938 Mad. 672. In this case also the plaintiff was appointed to serve as a Manager to supervise the money lending business of the employer in Madras for a period of three years. The employer's business did not prove successful, as he anticipated and he decided to terminate the employment of the employee and appointed another agent at a lower salary providing a grievance to the former employee for claiming damages. His claim was decreed and the following observations are relevant:-
"Where a person has agreed to employ another he is not entitled to put an end to the employment simply because he finds his business is not proving as profitable as he anticipated or because he finds that he can get somebody to perform the duties at a small salary. If the contract provides for termination of employment by notice the employer can lawfully terminate the employment on giving the required notice. In a case like the present where the employment was for a definite period, the employer is bound to pay the stipulated salary unless he shows that the discharged servant had an opportunity of other employment, but refused to avail himself of it. In other words, the principle that a person must do what he can to mitigate damages applies to a contract of service just as it applies to an ordinary commercial contract."
16. In another case decided by a Division Bench of this Court reported in P.L.D. 1967 Karach P-1, Wahiduddin Ahmed, J, awarded damages to an employee of M/s. General Iron and Steel Works, who was employed as an engineer for a period of five years; but was removed from service before the expiry of this term. Few passages from the judgment may be produced below:-------
"It will be noticed that under the English Common Law where a contract of service provides that a sum shall be payable in the event of breach, such sum is recoverable if in fact it constitutes liquidated damages and not a penalty on the principle that the sum named is the result of honest and genuine pre-estimate of damages" ...............
In Pakistan the law on this point is governed by Sections 73 and 74 of the Contract Act. In cases where the parties
have not contemplated before hand a fixed amount as damages, its estimate is to be made in accordance with section-73. But if the parties have pre-estimated the damages, it will be assessed in accordance with the principles laid down in section 74 of the contract Act."
in para. 35 of the judgment the learned Judges have summed up as follows: -
"Thus in disputes arising between Master and servant ordinarily the measure of damages would be determined according to the covenants in the contract but the party at fault would be entitled to claim the exclusion of any earning made by the servant during the period for which damages are claimed as discussed earlier on the possible chance of obtaining a suitable appointment elsewhere."
17. Faced with this situation learned counsel for the defendant tried to invoke defendant's right to terminate the two years contract by serving one month's notice. He reads clause 7 (a) in the contract. This clause provides that "it is understood by the employee that the employer may, terminate his service under this agreement at any time by serving one month's notice or one month salary in lieu of notice. The employee can do the same." Learned counsel for the Defendant has been able to find an English case in support of the proposition that even if the contract of service provides for a specified term and the contract provides that the services could be terminated by notice earlier, employee would not be entitled for the compensation for the remainder of the term. In Baker v. The Denkera Ashanti Mining Corporation (Limited) (T.L.R. 20 1903-1904) Grantham, J. of the King Bench Division has dealt with a case similar to the one before us. The plaintiff was employed by a Mining Company and sent out to Gold Coast as a Miner and Prospector at a salary of b 30 a month for a period of 12 months. The contract provided that the Defendant should be at liberty to terminate the agreement at any time during the period of 12 months by giving to the plaintiff two months notice in writing or two months salary in lieu of such notice. The contract further provided that on termination of the agreement the employee was to be given a free passage home IInd Class. The plaintiff proceeded to the site of mine in Gold Coast, started his work and on a small issue earned a displeasure of the employer and his services were terminated. On return to England the employee filed a suit and claimed damages and it was pleaded on his behalf that though there was a provision in the contract for earlier termination of the term of employment, but the termination of service in the circumstances of the case was not under this clause, but was on the ground of misconduct. Repelling this distinction the learned Judge held:
"The defendant company had a right to terminate the agreement. There was nothing in the clause giving them that right which limited their reason in dismissing the plaintiff. There being no limitation as to their reason for dismissing him, he did not think that the defendants were liable for more than two months salary and the other expenses. The defendants could not be made liable for more damages simply because they had not a good reason for dismissing the plaintiff."
The plaintiff was, therefore, awarded only two months' salary.
18. Another case which has been relied upon by the learned counsel is African Association Limited and Allen (1910) I.K.B.D. 396. In that case an agreement for the employment of a Clerk in Africa for a two years period at a salary of 250 , a year provided that the employers could at any time at their absolute discretion terminate the engagement at any earlier date than that specified, if they desired to do so. The, employer's agent in Africa sent back the Clerk to England and here he was told that his employment was terminated under this clause. In an action for damages for wrongful and premature termination filed by the plaintiff in England, the employer pleaded this clause in their defence. It was held that the employer was within his right to terminate the contract of engagement but only after giving a reasonable notice or a salary in lieu thereof. What is reasonable notice is a question of fact in each case. Some time this notice may be for a year and in some cases it may be for only one month. In the present case the clause of termination itself provides the period of notice which is only one month.
19. On the authority of the above two cases, learned counsel for the Defendants has argued that the plaintiff should not be allowed anything more than one month's salary in lieu of the notice of termination. The argument is very attractive Initially I was inclined to accept his contention. But the facts of the case do not sustain this argument. Termination, like engagement is a matter of fact. Both are motivated by exigencies of particular situation. No doubt the Defendants had a right to terminate the contract at any time before it had fully run its course. But have they done so in the present case If they had invoked this clause in the contract and served the plaintiff with a notice of termination, he was bound by it D for the simple reason that at the time of signing the contract of his employment he had also voluntarily agreed to its abrupt and premature termination. But what the defendants are doing now. Actually they are rescinding the original contract and unilaterally changing the conditions of performance. They clutched to the main contract and force the plaintiff to do some thing different from what he had agreed to do. Further, the Defendants while clutching to the contract force the plaintiff to accept 66 Iraqi Dinars instead of the agreed 93 Iraqi Dinars. When the plaintiff resists this change, they blame him for it and plead in their defence that the plaintiff has "resigned" from service. The plea of "resignation" from the plaintiff is inconsistent and contradictory to the plea of exercise of right of dismissal from service in their absolute discretion. The Defendants cannot blow hot and cold together. I have already reproduced the relevant paras of the written statement, but in order to highlight the inconsistency in their attitude, I once again reproduce paras. 10 and 13 of the written statement:
"10. Paragraphs 11 and 12 are denied. Defendant No.l did not terminate the services of the plaintiff nor forced him to leave Iraq, but the plaintiff himself gave resignation on 13-4-1981.
12........................
13. Paragraph 16 is denied. Defendant did not terminate the 14 services, but plaintiff himself gave the resignation after 2 days of joining. his services. He joined service on 11-4-1981, took the allowance of 10 D., and resigned on 13-4-1981."
20. In view of a clear case set up by the Defendants that they have never exercised the option of early termination of the contract which they had a right to do, now they cannot be permitted to take a summer sault and bridge the breach by catching up the straw of the termination clause.
21. The upshot of the discussion is that the Defendants are liable -to pay to the plaintiff the salary for the entire unexpired period which should be calculated at the rate of Rs.2,790 per month for 24 months minus the average earning of the plaintiff which is Rs.1,7501 per month.
Total salary for 24 months
(Rs.2790 x 24) Rs.66,960.00
Deduction average
earning for 24 months
(Rs. 1750 x 24) Rs.42,000.00
Balance Rs: 24,960.00
The plaintiff is entitled to a decree with costs in the sum of Rs.24,960 to be paid by the Defendants jointly and severally.
A.A./R-15/K Suit decreed.
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