TIKARAM BANIA Vs. GENDALAL

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The applicant brought a suit for recovery of the balance of his pay. His claim amounted to Rs. 148.9-0 allowing for sums paid by the non-applicant. The trial Court however deducted a sum of Rs. 80 from the claim and passed a decree for Rs. 61 only. It seems to ma that the lower Court has misunderstood the law applicable in a case of this kind. It is admitted that the applicant was engaged by the non-applicant on a fixed yearly wage. It was further admitted and proved that the applicant worked for the non-applicant, but omitted to do a certain part of his duty. The lower Court has held that the duty that was left unperformed should now be performed by some other person and that the cost of getting it performed should be deducted from the wages due to the applicant.

(2.) THIS , I think, is a wrong view of the law applicable to master and servant. A servant who is engaged on a fixed yearly, monthly or daily wage is entitled to that wage for the period during which he works, and the master cannot deduct anything from the wages on account of negligence or non-performance of a part of the servant's duty. If the servant fails to obey his master's order or is negligent in his work, the master's remedy is to discharge him, but as long as the master retains the servant in his service, he must pay him the stipulated wages and cannot make any deduction on account of work not performed. Even in the case of a servant being discharged for improper conduct if he is engaged on a contract of wages to be paid periodically, he is entitled to the wages for the period up to the time of his discharge. For this view I would refer to an English case, Healey v. Societe Anonyme-Francaise Rubastic (1917) 1 KB 946. In the present case, the defendants admitted that the plaintiff was in their service from 13th. December 1923 to 12th October 1930. It was further admitted that from Sambat 1983 the plaintiff was to get. Rs. 250 per year, and on these admissions I hold that the plaintiff-applicant is entitled to recover his pay for the period in which he was in their service without any deductions. It would be different, of course, if the plaintiff had been engaged on a contract of piece work or for payment according to services rendered, but that has neither been alleged nor proved : on the contrary, it has been clearly admitted that the plaintiff was engaged on a yearly wage.