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Second Appeal No. 41 of 1962, decided on 20th September 1962.

‑Contract of service‑Suit for declara tion that plaintiff' continues to be in service of Department, not competent‑Specific performance cannot be granted against an unwilling master‑Specific Relief Act (1 of 1877), S. 21 (b)-- [Messrs Malik & Haq and another v. Muhammad Shamsul Islam Chowdhury arid two others P L D 1961 S C 531 and Barber v. Manchester Regional Hospital Board and another (1958) 1 All E R 322 rel.]

‑Wrongful discharge from service-- Contract of service providing for one month's notice for discharge or pay in lieu thereof‑Discharge in violation of contract--‑Employee entitled to pay for period of notice plus damages for period which might reasonably elapse before he could obtain other employment ---Addis v. Gramophone Company, Limited 1909 A C 488 ; Municipal Borough, Dhulia v. Ramchandra Bapuji Kale A I R 1938 Born. 137 ; Gokak Municipality v. Rajaram Sridhar A I R 1940 Born. 386 ; Bimalacharan Batabyal v. Trustees for the Indian Museum A I R 1930 Cal. 404 ; Beckham v. Drake (1849) 2 H L C 579 ; "The Law of Master and Servant" by Diamond at page 207 and Mayne and McGregor on Damages at page 524 ref.]

Fakhruddin for Appellant. ,

V. A. Brohi for Respondent.

Date of hearing: 27th August 1962.

This civil revision has arisen out of a suit filed by the respondent for' a declaration that he continues to be in the service of the petitioners and for the recovery, of Rs: 1860.58 as arrears of wages, victual allowance and leave pay. Mr. Abdul Kadir 1. Kazi, the then Sub‑Judge First Class, Karachi, by judgment dated the 13th of October 1961 decreed Suit No. 467 of 1951 with costs. In Civil Appeal No. 192 of 1961 Mr. Hamza Khan M. Qureshi, Additional District Judge, Karachi, maintained the learned subordinate Court's judgment in all respects but disallowed the claim of the respondent to the extent of Rs. 396 for victualling allowance.

2. The facts leading to this revision application in brief are that Dilwash Balooch the respondent on the 9th of March 1960 was employed as Fourth Engineer by the petitioners on their ship S. S. Mehdi in the United Kingdom. The said ship later on came. to Pakistan. On the 26th of May 1960 the parties entered into a fresh agreement. The respondent was employed for two years from the 26th of May 1960. The petitioners, however, reserved their right to terminate the services of the respondent by giving him one month's notice.

3. On the 14th November 1960 the respondent fell seriously ill and was admitted as an in door patient on the 27th of November 1960 in the Jinnah Central Hospital, Karachi, and was discharged from the hospital on the 3rd of December 1960. The medical officer attending the respondent recommended him four weeks' rest for convalescing. On the 26th of December 1960 the respondent reported for duty but he was told to come later on. On the 27th of December 1960 the respondent received a copy of a letter addressed to the Shipping Master requesting him to signoff the respondent from the articles of the ship S. S. Mehdi and directed him to pay wages to the respondent up to the 18th November 1960. The respondent did not accept this position. He accepted wages upto the 18th of November 1960 and claimed that as his services were not terminated in terms of the agreement entered into between the parties he still continued to be in the service of the petitioners. A number of notices were exchanged between the parties.

4. Ultimately on the 14th of February 1961 the respondent filed the above‑mentioned suit against the petitioners for a declara tion that he was still in their service and for the recovery of Rs. 1,860.58 from them as his wages' and other allowances upto the 13th of February. 1961.

5. This suit was resisted on behalf of the petitioners. They maintained that the respondent had deserted his post as he failed to resume his duty after his discharge from the Jinnah Central Hospital and therefore his services were rightly terminated. They further pleaded that the respondent was no longer in their service and was not entitled to claim any amount from them either as wages or for other allowances.

6. The learned subordinate Court held that the respondent did not desert his post and was entitled to four weeks' rest as convalescing period according to the recommendation of the Medical Officer attending on him. He further held that the respondent resumed his duty on the 26th of December 1961 and as his services were not terminated in terms of the, agreement, he continued to be in the service of the petitioners. On this view of the matter he decreed the respondent's claim in its entirety and gave a declaration that he still continued to be in the service of the petitioners.

7. The petitioners took up this matter in Civil Appeal No. 192 of 1961. The learned Additional District Judge, Karachi, maintained the findings of the learned subordinate Court in all respects but modified the decree of the subordinate Court in respect of the claim of victual allowance to the extent of Rs. 396.

8. Mr. Fakhruddin, the learned counsel for the petitioners, has attacked the judgments of the learned subordinate Courts on two grounds. Firstly, that the respondent was not entitled to obtain a declaration that he still continues to be in the service of the petitioners and secondly, that the respondent was only entitled to claim damages in the sum of Rs. 475 as one month's salary in lieu of notice. I shall deal with these points separately.

9. The contention of Mr. Fakhruddin that the respondent was not entitled to obtain a declaration that he was still in the service of the petitioners is not without force. The learned counsel has not contended before me that the service of the respondent was terminated in accordance with the terms of the agreement and conceded that it could only be terminated by giving one month's notice as provided in the agreement dated the 26th of May 1960. The learned counsel, however, urged that the utmost that the learned subordinate Courts could hold in this matter was that the respondent was wrongly dismissed from service and no declaration should have been granted to the respondent about the continuation of, his services with the petitioners. In support of his contention the learned counsel has relied, on an English decision in Barber v. Manchester Regional Hospital Board and another ((1958) 1 All E R 322). In that case the English Court held that the plaintiff's contract with the hospital Board was one between master and servant, the termination of which could not be a nullity, and the plaintiff was not, therefore, entitled to a declaration that his employment had never been validly determined but was entitled to recover damages for breach of contract. This view is in accord with the decision of their Lordships of the Supreme Court of Pakistan in Messrs Malik and Haq and another v. Muhammad Shamsul Islam Chowdhury and two others (P L D 1961 S C 531). In this case their Lordships held :‑

"In the absence of any statutory provision protecting the servant it is not possible in law to grant to him a decree against an unwilling master that he is still his servant."

Their Lordships further held that a wrongful dismissal or a breach of contract can give rise to only two reliefs : damages or specific performance. It was further held by their Lordships :‑

"When a master, in breach of his contract, refused to employ the servant the only right that survives to the servant is the right to damages and a decree for damages is the only decree that can be granted to him."

In view of these clear observation of the Supreme Court of Pakistan I am satisfied that the learned subordinate Courts were not justified in granting the respondent a declaration that he still continued to be in the service of the petitioners.

10. It was next contended by Mr. Fakhruddin that the respondent was only entitled to claim damages in the sum of Rs. 475, one month's salary in lieu of notice, which was necessary to terminate his services. In support of his contention the learned counsel has relied on the following passage in the book known as "The Law of Master and Servant" by Diamond at page 207:

"The measure of damages for wrongful dismissal is not the remuneration that should have been earned under the contract; but is, in the absence of express or implied agreement to the contrary, such damages as may reasonably be supposed to have been in the contemplation of the parties, at the time when they made the contract, as the probable result of such a breach. Generally, this will be the present value of the remuneration that would have been earned under the contract during the due period of notice, less the amount of such wages as the servant obtained or could have obtained elsewhere in similar employment. The damages depend, therefore, in general on two main questions : (1) what are the usual wages m the employment in question ; and (2) what time may the servant be expected to lose in finding such employment."

He further relied on the following passage in Mayne and McGregor on Damages at page 524:

"When the defendant has a right to terminate the contract before the end of the term, damages should only be awarded to the end of the earliest period at which the defendant could have so terminated the contract . . . . . ."

The contention of the learned counsel in this respect is also not without force. Ordinarily in the absence of an express term in the contract or usage to that effect, an employee cannot be dismissed without notice by paying his wages for the notice period in lieu of notice. But in those cases where no notice is served or the service has been improperly terminated, the employee would be entitled in the case of such wrongful dismissal, under a contract of employment which provided for terminating the employment by giving notice on either side for a certain period, only to pay and allowances due for the period of the notice and nothing more. There is not the slightest doubt that an employee in such cases is not entitled to his pay and allowances for the entire unexpired period of his service. This view finds support in the cases of Addis v. Gramophone Company, Limited (1909 A C 488), Municipal Borough, Dhulia v. Ramchandra, Bapuji Kale (A I R 1938 Bom. 137), Gokak Municipality v. Rajaram Sridhar (A I R 1940 Bom. 386) and Bimalacharan Batabyal v. Trustees for the Indian Museum (A I R 1930 Cal. 404). In some cases in assessing damages a further factor is also taken into consideration, namely, damages in respect of the time which might reasonably elapse before the employee could obtain other employment. The House of Lords in Beckham v. Drake ((1849) II H L C 579), accepted this principle as applicable in the cases between ordinary master and servants.

Mr. Justice Erle observed :‑

The measure of damages for the breach of promise now in question is obtained by considering what is usual rate of ages for the employment here contracted for, and what time could be lost before a similar employment could be obtained. The lady considers that employment in any ordinary branch of industry can be obtained by a person competent for the place, and the usual rate of wages for such employment can be proved, and that when a promise for continuing employment is broken by the master, it is the duty of the servant to use diligence to find another employment ; Elderton v. Emmens (4 Com. Bench Rep. 498, n. ; 6 Com. Bench Rep. 160 ; 17 Law J., C. P. 307). Upon these principles, in the present case, if the place of foreman in a type foundry could not probably be again obtained without delay, and if the wages in the contract broken were higher than usual, the damages should be such as to indemnify for the loss of wages during that delay, and for the loss of the excess of the wages contracted for above the usual rate ; but no allowance would be made in the nature of pretium afectionis, nor any reference to any pain that might be felt by the bankrupt on the ground that he was attached to the place."

This very principle was enunciated by Lord James of Hereford in Addis v. Gramophone Company, Limited. The learned Lord in this connection observed as under :‑

"The rights of the plaintiff, disembarrassed of the confusing methods by which they were sought to be enforced, are, in my opinion, clear. He had been illegally dismissed from his employment. He could have been legally dismissed by the six months' notice, which he, in fact, received, but the defendants did not wait for the expiry of that period. The damages plaintiff sustained by this illegal dismissal were (1) the wages for the period of six months during which his formal notice would have been current ; (2) the profits or commission which would, in all reasonable probability, have been earned by him during the .six months had he continued in the employment; and possibly (3) damages in respect of the time which might reasonably elapse before he could obtain other employment."

11. Mr. G. A. Brohi, the learned counsel for the respondent, has referred me to the provisions of the Merchant Shipping Act, 1923, and contended that as long as the provisions of the Shipping Act were not fulfilled, the respondent could not be taken to have been discharged from the service of the petitioners. He further contended that in the absence of legal discharge the respondent could not seek service in another shipping company.

The learned counsel in this connection referred me to section 42, 44, 46 and 100 of the Merchant Shipping Act, 1923. It was admitted at the Bar that certain rules have been framed under this enactment, but the learned counsel for the parties have not produced them before me. In its absence it is not possible for me to give any clear finding on this question and it cannot be said with authority that the respondent could not seek another, employment as long as he was not discharged in accordance with section 42 of the Merchant Shipping Act of 1923. This question, however, is not of much importance in the present revision. Admittedly the respondent rejoined service on the 26th of December 1960: He was entitled to a month's notice which would take his case to the 25th of January 1961. The only claim which can be disputed on behalf of the petitioners will be from the 26th of January 1961 to the 13th of February 1961. Mr. Fakhruddin has not contested the liability of the company, without prejudice to the petitioners' right to challenge the future claims of the respondent, in this revision for this short period.

12. After careful consideration of the contentions raised on behalf of the petitioners I will accept the revision in respect of the declaration granted to the respondent and hold that the learned subordinate Courts erred in granting the respondent a declaration that he still continues to be in the service of the petitioners' company. The decree of the learned subordinate Court in other respects is maintained.

13. In the result the revision is allowed only to the extent indicated above. The parties are ordered to bear their own costs.

A. H.

Order accordingly.

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