KEUNEMAN J.—Forbes v. Ren gasamy.
1940Present: Keuneman J.
FORBES v. RENGASAMY.336—M. C. Hatton, 210.
Criminal trespass—Labourer resident on estate—Remaining on lines afternotice to quit—Intent to annoy—Contract of service—Termination ofcontract—Position of labourer as servant not tenant—Legality of notice.
An Indian labourer who was employed on an estate and who wasallowed free housing accommodation was given notice by the Superin-tendent, terminating his contract of service, and was warned severaltimes that he must leave the estate on the expiration of the notice.
He refused to leave the estate or to accept his discharge ticket.
Held, that the accused remained on the estate with the intention of. causing annoyance to the Superintendent and was guilty of criminaltrespass.
Notice given on December 2, 1939, terminating the contract of serviceon January 2, 1940, is a valid notice.
Where residence on the estate is in the interest of the estate and suchresidence is conducive to that purpose and for the more effectual per-formance of the service, the labourer resides in the capacity of a servantand not a tenant.
j/^PPEAL from a convicion by the Magistrate of Hatton.
A. Rajapakse (with him K. S. Aiyer and H. W. Thambiah), foraccused, appellant.
H. V. Perera, K.C. (with him E. F. N. Gratiaen), for complainant,respondent.
May 23, 1940. Keuneman J.—
The accused was charged and convicted under section 433 of the PenalCode for committing criminal trespass on January 3, 1940, by unlawfullycontinuing to remain on Thomfield estate with intent to annoy thecomplainant who is the Superintendent of the estate. He was sentencedto one month’s rigorous imprisonment. He now appeals.
Several points of law were argued by his Counsel. Most of thesepoints have been raised in a previous case (Ebels v. Periannan') and havebeen decided by de Krestser J. but as the matter has been fully arguedbefore me again, I shall myself deal with the arguments.
< i c. L. J. 119 :16 C. L: W. is.KEUNEMAN J.—Forbes v. Rengasamy.
One point raised may be disposed of shortly. It is contended that themonth’s notice terminating the accused’s service was illegal in that thenotice was given on December 2, 1939, terminating on January 2, 1940.It was contended that notice must be given before the commencementof a month, and terminate at the end of that month. But section 5 ofChapter 112—the Estate Labour (Indian) Ordinance—reserves the rightto both labourer and employer to determine the contract of service" at the expiry of one month from the day of giving such notice Similarwords in Ordinance No. 11 of 1865 have been interpreted by a Bench oftwo Judges in Bume v. Munisamy I hold that the notice in this casewas a good notice, and that the contract of service terminated on January2, 1940.
The further argument addressed to me is that the accused was a monthlytenant of the room in which he lived, and that he was entitled to noticeto quit the room, given before the commencement of a month, andterminating at the end of that month.
Two English cases have been cited to me on this point by the appellant’sCounsel, namely, Hughes v. The Overseers of the Parish of Chatham“ andMarsh v. Eastcourt ’. In the former case Tindal C. J. stated : “ There isno inconsistency in the relation of master and servant with that oflandlord and tenant. A master may pay his servant by conferring onhim an interest in real property, either in fee, for years, at will, or forany other estate or interest …. As there is nothing in the factsstated to show that the claimant was required to occupy the house forthe performance of his services, or did occupy it in order to their perform-ance, or that it was conducive to that purpose more than any housewhich he might have paid for in any other way than by his services ;
. . . ., we cannot say that the conclusion at which the revisingbarrister has arrived is wrong. ” The revising barrister had held that theservant occupied the house in the capacity of tenant, and was entitled tobe on the list of voters.
The latter case was decided under the County Electors Act, 1888.The claimants were labourers residing in cottages on the farms of theiremployers. They were permitted but not required to live in the cottageson the terms that they were to give up the possession when their employ-ment ceased, and were either charged a reduced rent or had the rentdeducted from their wages. The rates were paid by the employers andthe names of the claimants appeared in the rate-book as occupiers. Itwas held that the facts showed an occupation by the claimants not byvirtue of service but as householders. Wills J. stated:'“The labourerswere not required to reside in the cottages, but were allowed to residein them as a privilege. It would be an abuse of language to call residenceunder such conditions occupations by virtue of service. ”
Appellant’s Counsel also referred me to Halsbury’s Laws of England(Hailsham Edition), vol. 22, page 117, paragraph 196, which runs asfollows: —
"Where it is necessary for the due performance of his duties that aperson should occupy certain premises, or where he is required to
1 21 N. L. R. 193.J S Manning <b Granger Si.
24 Q. B. T>. 147.
296KEUNEMAN J.—Forbes v. Rengasamy.
occupy premises for the more satisfactory performance of his duties,although such residence is not necessary for that purpose, such personoccupies in the capacity of servant; but where a person is merelypermitted to occupy premises, whether as privilege, or by way ofremuneration of part payment for his services, he occupies as tenantand not as servant
“ Occupation by the servant * is occupation by the master, and aservant has neither estate nor interest in the premises he occupiesin that capacity. ”
In the case cited by respondent’s Counsel, Smith v. The Overseers ofSeghill', Mellor J. stated :“ It appears that the appellants and other
workmen are only entitled to occupy the houses during the time of theirservices at the colliery ; the occupation terminates at the time the serviceterminates. Still the appellants are tenants though not tenants for anyfixed time ”. Lush J. also said : It is true that the holding is not forany fixed term ; the tenure is co-existent with the service ; but it maysi ill be that during the period of the service the colliers occupy in thecharacter of tenants
Another aspect of this matter is to be found in Dobson v. Jones ~There Tindal C.J. said that “ the relation of landlord and tenant couldnot be created by the appropriation of a particular house to an officer orservant as his residence, where such appropriation was made—with aview, not to the remuneration of the occupier, but to the interest of theemployer, and to the more effectual performance of the service requiredfrom such officer or servant ”, and he instanced the case of a coachman,a gardener, or a porter.
In the present case, it is in evidence that Thornfield estate falls withinthe class of estates paying acreage fees. It is also one of the estateswhich provide “ free housing accommodation —to use the words ofSchedule C of the Rules (vide Subsidiary Legislation, vol. 1, p. 591) —included in the wages. The evidence for the defence itself establishesthat in practice all Indian labourers (the accused is one) reside on theestate, but there are stray cases where Tamil labourers reside in villagesand go to the estates for work ”. I think it is clear that residence on theestate is in the interest of the estate, and that such residence is conduciveto that purpose and the more effectual performance of the service. Thelabourer’s position is more akin to that of the coachman, the gardener,or the porter.
Further, there is no evidence that any particular room is appropriatedto the accused. It is in evidence here that the accused, as well as hisfather, his mother, and other members of the family, have been allottedtwo rooms. Though housing accommodation is provided, if the exigen-cies of the service require it, there seems to be nothing to prevent theSuperintendent from removing labourers to different rooms or even todifferent lines. I hold that the accused was not a tenant of the premises,but that his residence in the room was in his capacity as servant. Evenif he was a tenant, his tenancy terminated when his contract of servicewas legally ended,,and his subsequent residence was a trespass.
1 (7S7-5) /.. 77. Hi. Q. 7i.2 5 Minuting <t- Ortnujer 111.
S. Ibrahim Saibo v. Jainambeebee Ammal.
1 do not think that there is any substance in the further point that theSuperintendent was not “ in occupation of ” the lines. I hold that asrepresentative of the owners in full charge of the estate, he was in suchoccupation.
The last matter urged was that the intention to annoy the Superinten-dent has not been proved. In this case there is evidence to show that theaccused was warned that he must leave the estate on the expiration ofthe term of the notice and that about the middle or end of December,1939, the accused came to the Superintendent and said he had not beenable to get employment elsewhere and that he could not go on January 2.He was informed that he must leave on that date. He has on severaloccasions been warned to leave the estate, but he refused to accept his dis-charge ticket, and refused to leave the estate. The refusal to accept thedischarge ticket is significant, as without it the accused cannot obtainemployment elsewhere. This tends to show that the excuse made by theaccused was not a genuine one. The accused has not given evidence inthis case as to his intention in remaining on the estate. His conduct wascalculated to cause annoyance, and, in fact, has done so. The Superin-tendent said that the accused’s attitude was one of defiance. In thecircumstances, the Magistrate has come to the conclusion that theaccused continued to remain on the premises with the intention ofannoying the Superintendent, and I think the finding is justified.
The application for revision has not been persisted in and is dismissed.
As regards sentence, I see no reason to alter the sentence, but I orderthat the period of detention pending appeal should be taken into accountin calculating the month, and if the whole period spent in prison by theaccused, whether subject to rigorous imprisonment or not, is equal to.or more than, one month, he is entitled to be released. Subject to thisthe appeal is dismissed.
FORBES v. RENGASAMY