(COURT OF APPEAL)·

 HABIB COHEN vs. ABDEL RAHMAN MOHD. HAMAD

 AC-Revision-128-58

Revision

Principles

  Labour-Gratuity on termination of service- Damestic Servants Ordinance 1955, S.22-“Constitution Service”- Section3

A gratuity can not be claimed by a domestic servant from his employer if his service terminated within two years of 1st April1954 however long the service may in fact have been.

Judgment

The facts are fully set out in the judgment of Soni J.

Advocates : Ahmed Gumma…for Applicant.

            A.M. Abdel Wahab…for Respondent.

14th August 1958. Soni J. :- The Plaintiff (Respondent) Abdel Rahman Mohammed Hamad was a domestic servant of the Defendant. He joined his service many years ageo-eighteen or nineteen years ago, the exact number is not material. He left the Defendant’s service according to him in February 1956, according to the Defendant perhaps a few months earlier. This again is not material to know. What is material to know is that the Plaintiff was in the employ of he Defendant before the Domestic Servants Ordinance No.9 of 1955 came inot force, and that he left the Defendant’s service not later than February 1956.

The Plaintiff calims that he is entitled to gratuity from his late master, the Defendant, under the terumsof section22 of the Ordinance. For that section to apply the Plaintiff must have completed at least two years’  continuous service. The phrase “ continuous service” is defined in section3 of the Ordinance. It reads thus:-

‘Continous Service’ means-

(a)        In the case of service which commenced before the coming into force of this ordinance uninterrupted service with the same employer from such date or from 1st April 1954 which erver is the later;

(b)       In every other case uniterrupted service with the same employer from the date of the commencement of such service.

Clause (a) is the relevant clause for this case. It is quite clear that however long before 1954 the Plaintiff as domestic servant may have been employed with the Defendant for the pruposes of the Ordinance, the service to be counted for the application of section22 is at least two year4s commencing from 1st April 1954. it is quite clear that when the Plaintiff left his service in or about February 1956, he had not compeleted two years. In these circumstances, the Plaintiff can not take advantage of the Ordinance. Learned Counsel for the Plaintiff admitted that the defintion section had not been brought to the notice of the tow Courts below. In these Circumstances we are of the opinion that the decree of the trial Court should be set aside, as also the confirming order of the learned Judge of the High Court, but that there should be no order as to costs.

Babikir Awadalla J. : -  I concur

(Revision Allowed)