Case No.:

(AC-Revision- 205-1959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Labour—Reguhition of employment—Wrongful dismissal—Employers and Em n yed Persons Ordinance. s. 10 (2)—’ Gross misconduct —s. 25

(1) There is no provision for conditional notice under the Employer aflhl Lmpioved Persons Ordinance. 1949. s. 25.
(2)Criticism of the ss av in which .1 head accountant administers payments does not amount to ‘ gross misconduct “ under the Employers and Employed Persons Ordinance. 1949.s. 10 (2)

Judgment

(COURT OF APPEAl)*

ALl ASHRY EL SIDDIG s. YANNI PANERAS

(AC-Revision- 205-1959)

Revision

Advocates: Dafaalla El Hag Yousif, ... for plaintiri

                   Henry Riad, ……………..for defendant

Court: M.A.Abu Rannat C.J. Abdel Mageed Imam J.

January 26, 1960. Abdel Mageed Imam J.: —This is an application for revision submitted by advocate M. A. Mahgoub on behalf of applicant (and plaintiff) Ali Ashri El Siddig, a fitter, in the employ of respondent (and defendant) Yanni Paneras, a workshop owner, against the summary dismissal order made by the judge of the High Court, Khartoum, dated July 14. 5959, and the decree of the District Judge, Khartoum, dated July 7,1959, dismissing the claim.

The facts of the case are that applicant (and plaintiff) claimed for recovery of the sum of £S.93.ooom/ms being gratuity due for nine and a half years of continuous service and three months’ pay for final leave by force of the Employers and Employed Persons Ordinance, 1949. He, appli cant (and plaintiff), alleged that his.service was continuous all along this period, but for four days because of sickness, arid that his last daily wage was P.T.40 receivable at the end of each month.

He further contended that on June 15, 1958, he was given fifteen days’ notice by his employer, respondent (and defendant), without any just cause or excuse.

The respondent’s (and defendant’s) reply was that applicant (and plain tiff) did work with him at a fitter up to when he left the work out of his own volition on April 23, 1953, and was retaken on on May 3, 1953, where he continued up to the end of May 1958. Respondent further states that on May 15,1958, he warned applicant to be of good behaviour for fifteen days,’ the reason for the warning being in respect of an incident when the latter criticised the head accountant of the establishment in the way payments out to another worker were being administered, and that he. the applicant, refused to resume his work at the end of the fifteen days’ warning and he must not therefore be entitled to any rights conferred by the above-mentioned Ordinance as he left the work voluntarily.

As we see it, this application should be allowed. Respondent’s defence ‘is contradictory, ambiguous and confused. While he alleged that applicant left the work out of his free will, i.e., that he did not give him notice, he asserts that he gave him fifteen days’ notice with an option to return in case he be of good behaviour, i.e., that this notice was not made under section 10 (2) of the Ordinance. Respondent cannot play fast and loose with the law. There is no such thing as a conditional notice under the Ordinance. For section 25 reads:

“When a contract of service is terminated by the employer otherw than by the dismissal of the employed person in accordance with section 10 (2), the employer shall pay to the employed person a gratuity in respect of his period of service

Even if the warning is purported to have been given under section 10 (2) above, the facts constituting the behaviour complained of do not constitute n our opinion gross misconduct though it was done in or in connection With applicant’s employment; the other essentials -of wilful disobedience of a lawful order and serious negligence or wilful misconduct calculated to injure the employer’s business being not applicable to the particular facts of this case.

As for the period of service claimed we are satisfied that applicant should succeed in respect thereto as the finding of the court of first instance is obviously against the weight of evidence and the reasons upon which the evidence of P.W. 2 was rejected, who stated that applicant was in the employ of respondent for the last ten years, cannot be sustained.

As for the claim for three months’ pay because ot arrears of leave we think that there is nothing in the Ordinance which gives such a right. The only sections applicable in the case of holidays are sections 22 and 23 which are not applicable in this case.

For the above reasons explained, applicant should succeed in respect of his claim for gratuity with costs and to this extent the decree of the District Judge above mentioned should be varied.

M. A. Abu Rannat C.J.: —I concur

                                                                                               (Order varied).