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Present: Pereira J.
APPAVU V.- PONNIAH.469—P. C. Baclulla-Haldunimulla, 5,078.
Sub-kangany refusing to work as a coaly—Is he guilty of an offence unders. 11 of Ordinance No. 11 of 18651
A sub-kangany who refused to work as a cooly when ordered todo so by his employer was held to have committed an offence undersection 11 of Ordinance' No. 11 of 1865.
pjjHE facts appear from the judgment.
L. H. de Alwis, for the accused, appellant.—The accused wasordered to work as a cooly as a punishment for his alleged mis-conduct. It was held in Maclean v. Appau Kangany1 that a
* (1896) 2 N. L. B. «.
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kangany who refuses to obey an order to perform manual labour in 1912the reasonable belief, founded on the previous course of business on ^ppavuthe estate, that it is no part of his duty to perform such labour is Ponniahnot guilty of wilful disobedience under section 11 of the LabourOrdinance. [See also Ryan v. Weerappan; 1 P. C. Matale 21, 198.2]
In this case, too, the accused refused to work, in the belief that itwas no part of his duty to work as a coolv. The disobedience wasnot wilful, and the accused was therefore wrongfully convicted.
Wadsworth, for the complainant, respondent.—The evidenceshows that it is usual for sub-kanganies to work as coolies. Thedisobedience was therefore not right. In Natu Meya v. KadersaKangany3 a sub-kangany who refused to work as a cooly wasconvicted under section 11 of the Ordinance.
Cur. adv. vult.
July 9, 1912. Pereira J.—
The accused is charged under section 11 of Ordinance No. 11of 1866 with refusing to work and absenting himself from workwithout leave or reasonable cause. He is a sub-kangany onGienmore estate, and his defence is that he was asked to workas a cooly, and that being on the estate as a sub-kangany herefused to work as. a cooly. TEe question of the liability of akangany to work as a cooly has been considered by this Court inseveral oases. It is sufficient to refer here to only three of them.In Maclean v. Appau Kangany * Bonser C.J. held that a teaestate kangany who refused to obey an order to perform manuallabour in the reasonable belief, founded on the previous courseof business on the estate, that it was no part of his duty toperform such labour was not guilty of wilful disobedience undersection 11 of the Ordinance. That- ease was followed by Mr. JusticeMiddleton in the case of Ryan v. Weerappan. 1 The present case,however, is more in line with that of Natu Meya v. Kadersa Kangany.*There Wendt J. observed:“ There is no evidence to show that
an agricultural labourer, merely because he is a sub-kanganv, isentitled to choose whether he shall himself work or not. It is notsuggested that it is a generally recognized custom in such employ-ment that a sub-kangany shall not be obliged to work with his ownhands. ” These observations apply with equal force to the presentcase, and, moreover, here there. is positive evidence to the effectthat “ nearly all sub-kanganies work as coolies, and it is usual forthem to do so. ” But as in the case of Maclean v. Appau Kangany,*it is clear that in~the present case the order to work as a cooly was
i (26,860—P. C. Mataie) S. C.3 (11,091—P. C. Badulla-Haldummulla)
Min. Sept.. 13, 1906.S. C. Min., Aug. 7, 1902.
* S. C. Min., Sept. 8, 1881.* (1896) 2 N. L. R. 64.
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1012. not given to the accused iii the ordinary course oi estate management,PebjcibaJ. but as a punishment for certain acts of misconduct by the accused
which had been reported to Mr. Hudson. In Maclean v. Appaii
Aponniah ^an9^ny1 the fact that the order was not one given in the ordinarycourse of estate management, but was an exceptional order givento assert the authority ■ of the superintendent, went a great waytowards contributing to the grounds on which the acquittal wasbased. The similar incident in the present case may not altogetherexonerate the accused, but it may well be taken into considerationin mitigation of his offence. The reasons given by Wendt J. inNatu Meya v. Kadersa Kanganyx for reducing the sentence applywith equal force to this case. I affirm the conviction, but reducethe sentence to a fine of Bs. '25, or in default of payment of the fineto one month’s rigorous imprisonment.
Conviction affirmed; sentence varied.
APPAVU v. PONNIAH