State of Jammu and Kashmir vs Mohd. Khalil and Another

J.L. Kilam, J.—This is a first appeal directed against a judgement and decree of the learned Sub-judge Srinagar (Mr. N.K. Hak) dated 28th

June, 1956 by which he has dismissed the Plaintiff's suit brought for the recovery of a sum of Rs. 2712/10/ - from Defendants Nos. 1 and 2. It

appears that Defendant No. 1 was granted a stipend by the Kashmir Government for receiving training in Electrical Engineering at the Aligarh

Muslim University in the year 1944.

A sum of Rs. 2712/10/- is alleged to have been received by Mohd. Khalil as stipend from the Government. Agreement was executed by Mohd.

Khalil and Defendant 2 stood surety for the due performance of the terms of the agreement. The Plaintiff a case is that Mohd. Khalil was bound

according, to the terms of the agreement to serve the Kashmir Government for a period of seven years. Defendant 1 it is further averred did not

serve the Government for the aforesaid period, nor did he refund the sum of Rs. 2712/10/- which was received by him as stipend. Hence the suit.

It appears that after successfully completing his training Defendant 1 came to Kashmir and was appointed as temporary Supervisor in Sindh

division on a salary of Rs. 150-10-250. Later on he was again appointed as a temporary hand as Headquarter Assistant in the grade of Rs. 200-

25-400.

It is further alleged that Mohd. Khalil Defendant 1 worked as temporary hand upto 20-6-05 when he proceeded on ten days casual leave which

was extended by 15 days and later on by two months and again by 2½ months, but on the termination of his leave Mohd. Khalil did not turn up

to join his duties with the result that he was discharged from service for unauthorized absence. About Defendant 1 the Plaintiff's allegation is that he

went over to Pakistan. Ex parte proceedings were taken against him.

The case has been contested by Defendant 2 who had stood surety on behalf of Defendant 1 for the due performance of the contract.

Defendant 2 has defended the suit on various grounds, one such ground being that the agreement is unenforceable at law. He has further averred in

his written statement that the Defendants have not violated any terms of the agreement and that the Plaintiff has no cause of action against him. He

has also denied all knowledge about the whereabouts of Defendant l and has added that the Government never called Defendant 1 to serve it for a

period of seven years and that the Defendant 1 had never refused to serve.

The learned trial court framed the following issues:

Was Defendant 1 appointed to a post as per terms of the agreement? O.P. Plaintiff.

In case issue No. 1 is proved, did the Defendant 1 give up that post? O.P. Plaintiff.

Has the Defendant committed any breach of the contract and how? O.P. Plaintiff.

Is the contract unconscionable and legally unenforceable? O.P. Defendant 2.

Is there no cause of action against Defendant No. 2? O.P. Defendant 2.

To what relief the Plaintiff is entitled? O.P. Plaintiff.

That Defendant 1 received a stipend amounting to Rs. 2712/10/- is not contested. That after the successful completion of his training he came

back to Kashmir immediately is also admitted and fully borne out by the record. That he was given a temporary appointment in the Electrical

Department under the Kashmir Government is also not denied. That having secured leave, he did not re turn to his service after the expiry of his

leave has also not been contested.

But the question which remains to be seen in this case is as to whether all this constitutes such a breach on the part of Defendant 1 as would entitle

the Plaintiff to get a decree against the Defendants. The learned Advocate General who appeared on behalf of the Government has based his

argument on Clause (7) of the agreement, and has drawn our attention to Sub-clause (2) of the said clause which lays down that in case the

stipendiary omits or refuses to serve in the manner herein before mentioned efficiently, diligently, faithfully and honestly, the Government (if so

required) during the full period of seven years unless prevented by ill-health or death, shall have to refund in full without any deduction whatever all

sums of money which may have been spent in any manner by the Government on his training.

Now it may be mentioned that so far as the present file is concerned, it is not known as to whether the stipendiary is dead or alive. It was for the

Plaintiff to have established by cogent and convincing evidence that he was living and was in Pakistan. All that we know in this case is (vide

statement of K. Ranjit Singh C.E.E.) that he was appointed as a temporary hand in the Electrical Department and that after the expiry of his leave

he did not turn up to join his temporary appointment, This alone would not be sufficient for us to hold that Defendant 1 is alive and is now-a-days

in Pakistan. Apart from this, according to Sub-clause (2) of Clause 7 the stipendiary had to serve the Government for a period of seven years

provided the Government so required of him. In this case all we know is that the stipendiary was appointed as a temporary hand which does not

mean that he was required by the Government to serve for the full contractual period of seven years. His appointment as a temporary hand was

liable to be terminated at any time. Such an appointment would not mean that he was required by the Government to serve for the full period of

seven years. Even after he was discharged no notice was given to him or to his surety that the stipendiary should come and serve the State for

seven years. It is just possible that if the Government had required the Defendant 1 to come and serve the State for seven years, he might have

turned up for service. It may be noted down here that merely appointing the stipendiary as a temporary hand would in no case be said to guarantee

a fixed and a definite tenure of service to the stipendiary and if the stipendiary were notified that his services will be availed of by the Government

for a period of seven years, that would have inculcated a belief in his mind that at least for seven years his services would have continued without

any break.

But to appoint him as a temporary hand and not for full seven years cannot be interpreted as a notice given to Defendant 1 to serve for the

contractual period of seven years. Besides that in the present case what we see is that the Defendant No. 1 had simply failed to attend to his

temporary duties. The penalty according to the said clause for failure to attend and discharge his duties is dismissal from the service of the

Government. But it is curious to note that Defendant 1 was not dismissed from services for his negligence or failure to attend to his duties, but was

simply discharged.

This penalty is provided by none of the sub-clauses of Clause (7). The matter would indeed have been very different if the stipendiary (Defendant

1) were appointed initially for a period of seven years and before the expiry of seven years he had failed to attend to his duties and left the service

of the Government. The matter would again have been different if even after he had failed to report himself on his temporary duties he were

required by the Government to serve the State for a period of seven years.

The Plaintiff has done nothing of the sort, with the result that we have no other alternative (sic)but to agree With the trial court that there has not

been such a breach on behalf of the stipendiary Defendant 1 as would entitle the Plaintiff to get a decree against the Defendants. We, therefore, do

not find any force in this appeal which is rejected without making any order as to costs.

M.A. Shahmiri, J.

I agree.