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NATU MEYA v. KADEESA KANGANY.
August 7,. 1902. Wendt J.—
The appellant has been convicted of a breach of section 11 of OrdinanceNo. 11 of 1865, in that, being a servant of F. G. Souter, superintendent ofNayabedde estate, he neglected and refused, between May 12 and June 12,to. attend for work during the time and hours and at the place where he.contracted toattend. Theprosecution was commencedby Natu Meya,
described as head kangany of the estate, presenting to the Court a writtencomplaint, upon which the Court ordered summons to issue. At the trial thecmplainant was the first witness examined, and after him Mr. Souter himself.It has been objected in appeal that Natu Meya was not entitled to initiate a-prosecution forbreach of acontract existing betweentheaccused and Mr.
Souter, and the case of Kandasamy ®. Muttamma (2 N. L. R. 71) was reliedupon, in which appears an obiter dictum of Bonser C.J. to the effect that theemployer is the only person who can properly prosecute for offences underthe Labour Ordinance, because he is the only person injured. Even if thatopinion had been the ground of the derision in that case, I consider thatthe facts of the two cases are not similar, inasmuch as in the present case itwas expressly stated at the foot of the plaint, which was prepared and signedby Mr. H. B. Potger, as proctor, that it had been drawn under instructionsreceived by him from Mr. Souter, and this proctor afterwads conducted thecase for the prosecution and called and examined Mr. Souter. This circum-stance, coupled with the absence of objection, either in the Court below or inthe petition of appeal, to the head kangany's authority .to prosecute, is in myopinion, sufficient to establish that he had that authority.
It was nextcontended forthe appellant that i.t hadnotbeen proved that
the appellant was a servant of Mr. Souter within the meaning of the Ordinancedealing with the subject. There is no direct evidence of an express contractof service between these parties, and it was said that although the appellant'sname appeared on the check roll, it had not been shown that Nayabedde wasan estate " as defined bythe Ordinance, that is tosay,that 10 acres or
' 'more of it were actually cultivated, or that the appellant had received anadvance of rice or money from his employer. It is, of course, not sufficient(as the Magistrate appears to have assumed), in order to raise the presumptioncreated by section 5 of Ordinance No. 13 of 1889 as to the existence of acontract of service, that the name of the accused appears in the check roll.!he must also have received an advance; but I do not think it necessary to gointo this question, although there is evidence of some advance having beenmade to the appellant and of his wages having been stopped to pay it off,because I think the appellant' admitted in the Court below that he wag a sub-kangany in the service of Mr. Souter, and on that footing he gave Mr.. Soutera notice of his intention to quit his service.. I proceed to deal with the realdefence relied upon, viz., that as a sub-kangany the accused was not boundto do the work which he was ordered to do. The accused, as I have said,was a sub-kangany, and had at least three coolies in his gang. He had been
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on the estate for some three and a half years. He says that it is optionalfor a sub-kangany to work as a cooly (in which case he received a cooly'swages) or to supervise the labour of his gang, receiving only his pence money.He swears that he never worked as a cooly, but it is established for the prosecu-tion that he had so worked, and last did so in February, 1899, when he workedfor Dine days. Since then he has not done manual labour, and hag merelydrawn pence money in respect of his coolies. There is no evidence to showthat an agricultural labourer, merely because he is a sub-kangany, is entitledto choose whether he shall himself work or not. It is not suggested that it isa generally recognized custom in such employment that a sub-kangany shallnot be obliged to work with his own bands. All the evidence there is pointsthe other way. Every other sub-kangany on the estate works as a cooly, andthe accused himself, who is proved to have worked three years ago, doesnot say that he then worked because he- himself choose to do so, but deniesthe fact altogether. I am of opinion that the appellant was legally bound toobey the order of his master to go out into the field and pick coffee.
It was, however, argued on his behalf that his wages had been unpaid, andthat he wa.s, therefore, not punishable for a breach of his contract- of service.But it was proved that the wages for February had been paid into his ownhands, and although there was a question as to the appropriation of March andApril’s wages towards the reduction of advances, it is clear that March’swages were not sixty days overdue at the date of the alleged offence. Section 7of the Ordinance of 1889 therefore does not apply. While I think the convictionwas right, I do not think the appellant ought to have been sentenced to so-severe a punishment as six weeks’ rigorous imprisonment. Beallv he had forover three years not performed any labour, and although he is said to havebeen warned in the interval about his liability to work, this was never insistedupon, and as Mr. Souter puts it, he was always away from the estate. Itwas only when the appellant gave notice of his intention to quit his employer'sservice, that the latter insisted upon bis performing what I have held to be hislegal obligation. The order did not come as one given in the ordinary courseof work on the estate, but as an act of retaliation upon the accused for theintimation of bis intention to quit the estate.
The conviction will be affirmed, but the sentence altered to forfeiture of allwages due to the appellant not -exceeding one month's wages.
NATU MEYA v. KADERSA KANGANY