VASUDEVAN NAMBOOTHRI Vs. VASUDEVAN

JUDGEMENT

(1.) This revision petition by the plaintiff is against the decree of the Munsiffs Court, Attingal, in exercise of powers as a Small Cause Court. The petitioner had claimed money for doing shanthi in a temple belonging to the defendant, and had alleged that his elder brother was doing so till he passed away. His case further is that the defendant wanted the petitioner to do Shanthi agreeing to pay monthly remuneration of Rs. 20, that the remuneration was annually payable, that the petitioner conducted Shanthi through his manager, but the defendant had not paid anything and, therefore, the claim. In an earlier notice the defendant had admitted remuneration to be Rs. 7/- per mensem, but in the written statement denied the agreement. The lower court had rejected the evidence of the witnesses in support of the claim and had accepted the defence of there being no agreement. It has also accepted the defendants case that when the notice was sent the defendant was suffering from diabetes, and had directed the manager to send the notice, who had acted contrary to instructions.

(2.) I entertain grave doubts about the correctness of the aforesaid conclusion; for had the notice been sent contrary to instruction appropriate steps to repudiate what had been wrongly put in the notice would be taken after the defendant had been informed, but that had not been done. Be that as it may, I think the petitioners claim ought not to be decreed, on another legal ground.

(3.) It is clear from the evidence that the petitioner is a Government servant, and notwithstanding the rule that no Government servant shall except with the previous sanction of the Government engage directly or indirectly in any trade or business or undertake any employment, he had entered into the agreement, on which he rests his claim. Perhaps due to such restriction he had asked the manager to do the Shanti. In other words, the contract is contrary to the rule restraining a public servant from undertaking another employment during the period of service with the Government, and is therefore void, there being no averment about the agreement being with Government sanction. The petitioners learned advocate has, however, urged that the direction not being statutory would not vitiate the agreement under S.23 of the Contract Act, and has in support relied on Ramakrishna Trimbak v. Narayan (ILR 40 Bom. 126), Dharwar Bank v. Md. Havati (AIR 1923 Calcutta 154), Direndra Kumar v. Chandra Kantha (AIR 1931 Bom. 269) and Bhagwan Dei v. Murari Lal (ILR 39 Allahabad 51). The aforesaid cases are about public servants purchasing properties in contravention of the rule forbidding acquisition by public servants during their tenures, in places where the properties be situated, and the courts notwithstanding the rule had held that suits to claim the properties would not be rejected. They, however, do not lay down that where restraints on the public servants during their service be still operative, the courts would decree damages for failure to perform the agreement so forbidden. I respectfully agree with Fletcher, J., in The Sitarampur Coal Co., Ltd. v. T.H. Colley (13 Calcutta Weekly Notes, 59 at p. 62) that if a public servant enters into a contract, which casts on him to his knowledge something that would conflict with the duties he owes to the public, such a contract is void. In that case the suit was to recover damages from the defendant, who was employed for reward by the plaintiff company as their agent for the purchase of some boilers, and was alleged to have failed to use reasonable diligence and care in conducting the purchase of one of the boilers, which had caused the company losses. The defendant was then engaged by the Bengal Government in the office of the Commissioners for the Inspection of Steam Boilers, and in these circumstances, Fletcher, J., has observed as follows: -