( 268 )
BAINE v. N ALL ATA3SEB Y.P. CPussellawa, 36,684.
Tundu—Labour Ordinance, No. 11 of 1865—Effect of tundu—Renewal ofcontract of service—Quitting service without notice.
The signing of a tundu by an employer of coolies amounts only to anundertaking to discharge them from his employment on receipt of 4hesum of money specified in the tundu.
Opinion of Withers, J., in P.C., Hatton, 18,713, 31st January, 1896,questioned.
Query.—Whether the issuing of a tundu terminates the contract ofservice.
Where the wages due to a eooly were tendered on the 29th March andhe returned them to the complainant desiring to continue in hisservice,—
Held, this was a renewal of service, and that the cooly could not quitservice on the 4th April without having previously given a month'snotice alleging that the wages of January had not been paid.
HE accused, a sub-kangani, was charged with quitting theservice of his employer, Mr. A. L. Baines, on 5th April, 1905,
without leave or reasonable cause, before the end of his term ofservice. The Police Magistrate (Mr. W. de Livera) found asfollows: —
“ It.is in evidence that the accused got a tundu from Mir. Bainesfor himself and his eight coolies who were working on Mr. Baines'sestate. The accused brought a cheque for Bs. 279, the amountmentioned in the tundu, from, one Mr. Vytilingam on 29thMarch, 1905. Mr. Baines accepted the cheque and gave the accusedall the wages due to him and his coolies. The same evening theaccused returned the wages and expressed a desire bo remain on theestate. -Mr. 'Baines; agreed to his remaining. The name of theaccused appears on the check-roll, and rice was issued tohim.
" The cheque of Vytialingam was sent by Mr. Baines to the bank,rbut was returned by the bank, payment having been stopped byVytialingam.'
11 I hold the accused entered into a new contract of hire andservice, and on 5th April he could not leave on forthwith notice(on the plea that his wages had not -been paid to him though
( 259 )
■outstanding for over sixty days). The accused says he remainedon the estate, as his wages were not pud in full.
" I hold his wages were paid in full ; there was nothing moredue to him ; that the accused returned the wages and soughtre-employment ; and that Mr. Baines re-employed him on 29thMarch, 1905. ”
The Magistrate sentenced the accused to one month’s imprison-ment.
The accused appealed.■
Wadsworth, for accused, appellant.—The appeal is on points oflaw. (1) the superintendent gave the accused a tundu on the29th March that, on receipt of Bs. 279 the accused and his coolieswould be free. A cheque was produced and was acceptedby the superintendent. Mr. Justice Withers held that the issue ofthe tundu terminated the contract of service, or at least suspendedit. (P. C., Hatton, 18,713, Sup. Ct. Min., 31st January, 1896.)The contract was determined on the 29th March and there is noproof that there was a new contract at any date. The mere factthat the name of the accused appeared in .the check-roll, and thataccused received advances of rice, would not create a new contract,nor would the fact that' accused consented to stay on the estate.As Mr. Justice Withers field, there should be proof that theaccused understood fully that there was a new contract.
(2) Even assuming that the contract was not terminated, theaccused was at liberty to leave the estate on the 5th April, as atthat time the wages earned in January had not been paid for sixtydays. (Sections 6 and 7 of Ordinance No. 13 of 1889.) Mr. Bainespaid the wages on the 29th March, and the accused returned theamount and Mr. Baines accepted it back. This shows that thewages were due when accused left the estate.
7o» Langenberg, for respondent, not called upon.
Cur. Adv. vult.
31st May, 1905. Layarb, C.J.—
It is argued by appellant’s counsel that the issuing of thetundu by Mr. Baines in this case terminated the accused's(appellant’s) service.
( 260 )
1006, I understand a tundu only to amount to an undertaking toMeySl- discharge a labourer or labourers from service on the employert.avaup, c.J receiving a certain sum of money mentioned in the tundu.
A judgment was cited to me in which Mr. Justice Withersappears to have thought, otherwise. The issue of a tundu by anemployer, in his opinion, amounted to a suspension of the contractof service, whereby the labourer’s liability under the penal pro-visions of our law ceases on receipt of the tundu. I am unable toappreciate how he arrives at that conclusion, as it appears to methe signing of the tundu by the employer amounts only to anundertaking to discharge a labourer from his employment onreceipt of the sum of money specified in the tundu. 0It is quite unnecessary for me to decide that point in this appeal,because there is ample evidence in this case to establish that evenif the service was terminated it was renewed.
The point is then raised by appellant’s counsel that the Januarywages had not been paid on the 4th April, the date of the allegedunlawful quitting of service, and, consequently, as sixty days hadelapsed from the expiration of the month of January, the appellant,is exempt from punishment under section 6 of Ordinance No. 13of 1889.
The wages due to the 29th March were tendered to the appellanton that day, and' he returned them to the complainant. . Canhe then be allowed on the 4th April to quit the employer’sservice without giving a month’s notice alleging that the wages forJanuary had not been paid? I think not ; otherwise all thata labourer would have to do would be to refuse wages or to returnthem, as in this case, to his employer when tendered within thesixty days rather than to wait until the sixty days elapsed and walkoff the employer’s estate without, giving the statutory notice. The6th section above-mentioned refers to the case in which there hasbeen a default on the part of the employer to pay the wages andnot to the case in which he pays the wages, and the labourer ofhis own free will, as in this case, repays them to the employer.
I have not forgotten the appellant’s statement of his reason forreturning the wages', viz., that they were not paid to him in full,and that more was due to him. There is, however, no evidence toshow any more was actually due to him; the materials on therecord show ' that according to the check-roll and estate books he •<jvas paid in full. The appellant nowhere discloses how muchmore was due to him or where the accounts are wrong. There isonly his bald statement that more was due to him.
The appeal is dismissed and conviction affirmed.
BAINE v. NALLATAMBY