JUDGMENT :

Chandurkar, J.

1. Both these petitions which raise a question as to the construction of the definition of "continuous service" in S. 2(c) of the Payment of Gratuity Act, 1972 (hereinafter referred to as "the Act" have been heard together and will stand disposed of by this judgment.

2. Special Civil Application No. 609 of 1975 is filed by the employer Messrs. Bombay Union Dyeing and Bleaching Mills, Bombay. It arises out of an order made by the Appellate Authority under the Act in an appeal arising out of the order of the controlling authority under the Act on an application making a claim for gratuity by the employee. The employee claimed gratuity on the basis that he was in employment from March, 1961 till he resigned on 1st June, 1973 and thus a sum of Rs. 1,243 was due form the employer by way of gratuity. The employer admitted that the period of employment of the employee was from 21st January, 1963 to 1st June, 1973 but took the stand that out of ten years of service the employee rendered service for 240 days in a year only during four years and that gratuity was paid to him on that basis. The Labour Court which was the controlling authority took the view that there has been no break in service as contemplated in the definition of "continuous service" so as to restrict the claim of the employee to four years during which he is alleged to have actually worked for 240 days in a year. The Labour Court, therefore, granted claim of the employee.

3. In an appeal by the employer it was contended that the employee was absent without leave for a long period in almost every year with the result that the total number of days in a year on which he actually worked came to 240 only in four years and having regard to the Explanation to the definition of continuous service" in the Act, he would not be entitled to gratuity for the years during which he had not actually worked for 240 days in a year. The appellate authority, namely, the Industrial Court, took the view that absence without leave in the case of an employee could not be treated as a break in service and did not disentitle the employee form claiming that he has been in continuous service. With regard to the Explanation to the definition of continuous service, it was contended before the Industrial Court on behalf of the employer that in order to claim gratuity, the employee must have actually worked and the phrase, "rendered continuous service" should be interpreted as meaning actually worked for 240 days. This contention was rejected and the Industrial Court held that what was to be seen for the purpose of the Explanation was "whether the relationship of employer and employee has been continuous and not whether the employee has actually been on work because of subsistence of jural relationship of employer and employee". The Industrial Court held that "in order that a case may be brought under Explanation I, i.e., where an employee can be said to be not in uninterrupted service, it must be shown that the relationship of employer and employee has ceased and even if it has so ceased, it can be shown that the relationship continued for 240 days and the benefit of such relationship will also qualify for claiming gratuity for that year". The Industrial Court took a positive view that whether the case was covered by the First Explanation to the definition of continuous service or the principal clause of the definition of continuous service "the employment or being employed has to be interpreted as comprising the subsistence of relationship of employer and employee and not necessarily rendering of actual work or being on duty or performing work". The employer is dissatisfied with this decision of the Industrial Court that even being absent without leave did not constitute interruption in continuous service and has challenged the order of the Labour Court and the Industrial Court in this petition.

4. The other petition, namely, Special Civil Application No. 200 of 1978 is filed