Case No.:

(KHC-Revision- 167-1960)

Court:

The High Court

Issue No.:

1960

Principles

·  Labour—Gratuity on termination of service—Dismissal—The Employers and Em ployed Persons Ordinance, 1949, S. 10 (2)—’ Continuous service,” ibid. Ss. 2, 20, 24

The defendant had employed the plaintiff for about seven years, during which period he had absented himself from work for an aggregate of some 104 days, but any ther person had not employed him during the period. In disputing the plaintiff’s claim for a gratuity on termination of ser vice under the Employers and Employed Persons Ordinance the defendant contended (i) that by making an iron star during working hours from a piece of iron scrap belonging to the defendant, the plaintft had deprived himself of the protection of the Ordinance by virtue of section 10 (2),’ and (ii) that his service had riot been “continuous” within the meaning of the Ordinance by reason of his absenting himself from work for an aggregate of some 104 days duriPg his period of service.
On an. application for revision of the decree of the Khartoum District Court awarding the plaintiff £S.79.75om/ms
Held: (i) that section so (2) was intended to cover acts of some gravity and that ‘the alleged misconduct of the plaintiff (respondent) was too trivial to come within the section.
(ii) That where an employee has been in the service of the same employer over a period and has not joined the service of another, the fact that he has absented himself from time to time does not mean that his service has not been “continuous” within the meaning of section 2 of the Ordinance. Service can only be terminated either by notice or by dismissal under section 10(2)
An employer may dismiss without notice an employed person for wilful disobedience of a lawful order, or gross misconduct in or connected with his employment, or serious negligence or wilful misconduct calculated seriously to injure the employer’s business.”

Judgment

HIGH COURT)

VASSILI BAMBOULIS v. OSMAN ABDULLA

(KHC-Revision- 167-1960) 

Revision

Advocates: Ali Mohamed Ibrahim …….for applicant

                  Mubarak Zarroug …………..for respondent

May 17, 1960. Abdel Mageed Imam I.: —This is an application for revision submitted by applicant (and defendant) against the decree of the District Judge, Khartoum District Court, dated March 12, 1960, in which respondent (and plaintiff) was awarded a sum of £S.79.75om/ms under the Employers and Employed Persons Ordinance, 1949.

It is contended on behalf of applicant that respondent is not entitled to any gratuity as the act which he admitted having committed brings him under section io (2) of the above-mentioned Ordinance and that he is not entitled to any money in lieu of leave as his service was not continuous” as required by the same Ordinance.

The act complained of and which is alleged to deprive the plaintiff of the protection of the Ordinance is that he took the liberty of engaging in making an iron star, made out of scrap, the property of defendant, which he intended for decorating an iron door, contrary to defendant’s standing orders, in his workshop, with his tools, out of his  materials and at the time when he, the plaintiff, ought to have been work ing for defendant.

Again, the plaintiff, it is submitted, had absented himself from work during his period of service (of about seven years) for some 104 days in the aggregate and his service therefore is not to be considered as continuous service.

As I see it this application should fail. The learned District Judge found as a fact that no such order was made to the effe that workers must not engage in any private work at the workshop during working hours. I am not prepared to say whether or not, even if there were such orders, the mere failing to abide by it will amount to “wilful disobedience of a lawful order” within the meaning of section 10 (2)

For the remaining part of the above-mentioned section to be operative the employed person must have committed “gross misconduct in or connected with his employment, or serious negligence or wilful mis conduct calculated seriously to injure the employer’s business.” It is clear from the theme of the above words that it is the intention of the legislature that the act complained of should be of some gravity. In this case I think the learned District Judge was right in holding that the act was trivial. An attempt was made by the learned advocate for applicant (and defendant) to clothe the act with the seriousness of being a criminal offence of theft—because respondent did not take permission when he helped himself to a worthless piece of iron scrap. Under section 54. S.P.C., this is no offence.

As for the second point, “continuous service” means continuous ser vice with the same employer. It is the case here; though it is admitted by applicant that he did absent himself for an aggregate of 104 days yet it was not contended that he joined the service of another. A term of continuous service as above defined can only is discontinued .by notice of either party or under section 10 (2). Periods of absence are governed by section 20—subject to the rights of employed persons—which empowers an employer, if he so desires, to make certain wage deductions for absence. If he does so he does not terminate the term. If he does not he may terminate it either by notice or under section 10 (2) if the period is so long as to warrant the application of the section. It follows, therefore, that because applicant satisfied himself by deducting the wages for the days on which respondent was absent, he merely exercised his right under section 10 (2) and he cannot be said to have thereby terminated or discontinued the term of respondent’s service.

For the above reasons, explained, this application is dismissed. Applicant is to pay respondent’s costs of this application.

application dismissed