[1935] EACA 147

## APPELLATE CIVIL.

Before SIR JOSEPH SHERIDAN, C. J.

NYERI STATION STORES, Appellants (Original Defendants)

## HASSANALI, Respondent (Original Plaintiff).

## C. A. No. 1 of 1935.

Master and servant—Contract of service—Renewal of service after absence on leave.

Plaintiff claimed from the defendants—his employers—a balance due in respect of salary and allowance in lieu of notice after giving credit for certain cash paid and goods supplied. The plaintiff worked for defendants up to 6th June, 1934. He then left his employers on leave for one week but did not return until 20th June, when the partner who had granted him leave was absent. He recommenced work for his employers on 20th June, and on 21st June was handed a notice signed by both partners that owing to his overstaying his leave and failing to send a substitute as arranged his services were dispensed with.

The magistrate gave Judgment for one month's salary and food allowance in lieu of notice on the ground that the partner in charge of the business when the plaintiff returned tacitly renewed the contract of employment by allowing plaintiff to resume work, thus binding the firm (defendants). From that Judgment this appeal was brought on the grounds inter alia that the magistrate erred in holding that a fresh contract of service had been made, and in awarding compensation in lieu of notice as the employee had disregarded the leave conditions.

Held (27-2-35).—That the reasonable conclusion was that the dismissal was justified on account of breach of leave conditions and that no fresh contract of service was entered upon in the absence of the partner who made the conditions which the employee had disregarded.

Trivedi for appellants.

Rahman for respondent.

JUDGMENT.—The respondent claims Sh. 90, one month's wages and food allowance in lieu of notice. His case before the Lower Court and on appeal was that although he had overstayed his leave and failed to send a substitute during his absence (the latter fact was not admitted, but was found in the appellants' favour by the magistrate) he is entitled to succeed by reason of his having been allowed to resume his work. He returned to work on the 20th June, while the partner who said he granted him leave on.

the two conditions referred to was absent. On the 21st he was dis-The magistrate found that his having been allowed to missed. work on the day of his return had the effect of setting up a new contract and that he was consequently entitled to a month's notice or wages and allowance. The pleadings are not helpful to a decision of the case, but on the facts I think the reasonable conclusion to come to is that immediately the partner who had' granted the respondent leave on two conditions returned, which was the day after the respondent's return, he and his partner, after considering the respondent's conduct, dismissed him and it has not been gainsaid that there was ground for dismissal. The respondent has not set up a new contract, but in so far as $\Gamma$ understand his case has relied on his conduct having been condoned. The dismissal followed, as the respondent's own words: imply, immediately he returned (his words are: "On my return defendant gave me notice in writing") and this negatives his. conduct having been condoned. The appeal is allowed with costs in this Court and the Court below. Deciding thus it becomes unnecessary to make any order as to the Sh. 100 allowed for motor expenses to Mr. Rahman. I will, however, say that I am unaware of any authority for the award of this sum which would seem to be a matter between advocate and client.