Case: M/S. Jeewanlal (1929) Ltd., Calcutta Vs. Its Workmen

2. On August 31, 1957, resignation submitted by the appellants employee Bhanu Bala was accepted by the appellant. The said employee had joined the appellants service in 1929 but there was a break in the continuity of his service for nearly 8 1/2 months because he had remained absent from duty without permission or leave from February 14, 1945, to the end of October, 1945. According to the appellant the said employee was not entitled to any gratuity under the scheme framed by the award. Even so the appellant offered him Rs. 1,165/- and odd on compassionate grounds. The employee was not willing to accept that amount because he claimed that he was entitled to Rs. 2,282-50 nP. by way of gratuity. The demand thus made by the employee led to an industrial dispute which was taken by the employee before the First Labour Court at Bombay under S. 33C of the Act. The Labour Court entertained the application, decided the point in dispute in favour of the employee and directed the appellant to pay him Rs. 1,781-80nP. as gratuity. The appellant then moved the Bombay High Court for a writ under Arts. 226 and 227 on the ground that the Labour court had no jurisdiction to entertain the application made before it by the employee. This writ petition was allowed and the order passed by the Labour Court was quashed. It was at this stage that the Government of Bombay referred the question of interpretation of the term "continuous service" contained in the award of 1951 to the Industrial Court under S. 36-A (1) of the Act. That is how the Industrial Court was possessed of the matter. It has held that the words "continuous service" as used by the tribunal when it framed the award in question mean service not broken or interrupted by the termination of the contract of employment by either the employer or the employee or by operation of law. It is this interpretation the correctness of which is challenged by the appellant in its present appeal.

Reasoning: Therefore, the meaning attributed to the words "continuous service" in the context of the Factories Act may not have a material bearing in deciding the point in the presentservice" in the context of the scheme of gratuity framed by the tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If the employer terminates the service of his employee that again brings the continuity of service to an end. If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service. Similarly, participation in an illegal strike which may incur the punishment of dismissal may not by itself bring to an end the relationship of master and servant. It may be a good cause for the termination of service provided of course the relevant provisions in the standing orders in that behalf are complied with; but mere participation in an illegal strike cannot be said to cause breach in continuity for the purposes of gratuity. On the other hand, if an employee continues to be absent from duty without obtaining leave and in an unauthorised manner for such a long period of time that an inference may reasonably be drawn from such absence that by his absence he has abandoned service, then such long unauthorised absence may legitimately be held to cause a break in the continuity of service. It would thus always be a question of fact to be decided on the circumstances of each case whether or not a particular employee can claim continuity of service for the requisite period or not. In our opinion, therefore, the view taken by the tribunal is substantially right though we would like to make it clear that in addition to the cases where according to the tribunal continuity of service would come to an end there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee.