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Present: Mr. Justice Middleton.RAMASAMY KANGANY v. BAMEN.P. C., Kegalle, 6,255.
Desertion fromoneestate—Employment inanother estate—Going back
to original estate to . avoidpunishment—Desertion—Reasonable
cause—Criminal responsibility—Ordinance No. 11 of 1865, s. 11.
B, an Indiancool;, desertedfromAllagollaestate and took
service in Knavesmire estate.Onbeingprosecutedby the Superin-tendent ofAllagolla for an offence under section 11 of Ordinance
No. 11 of1865,he consented togoback to Allagolla to avoid
being sent to jail. He was accordingly, discharged bythe Magis-trate and wentback to Allagolla.Hewas thereupon oharged by
the. Superintendent of Knavesmire with quitting service withoutleave or reasonable cause under section 11 of Ordinance No. 11 of1865, and was convicted;
■ Held, that, as the accusedreturned to Allagollathrough fear
of being punished by the Magistrate, .he had reasonable cause fornot returning toKnavesmire,andthathe was therefore not liable
to be – punishedfor quittingtheservice of theSuperintendent of
Knavesmire estate under section 11 of Ordinance No. 'll of 1865,and. that the conviction was wrong.
HE accused was charged with, and convicted of, an offence' under section 11 of Ordinance No. 11 of 1865 in that “ he,
being an agricultural labourer under a verbal contract of servicefor the period of one month,- renewable from month to month,quitted the service of his employer Mr. Hawkins, Superintendentof Enavesmire estate,, without leave or reasonable cause.”
The accused, who was an Indian cooly, was employed in Allagollaestate. He gave notice and quitted the estate on 11th March, 1906,
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The notice was found to be insufficient, and he was charged by Air.
A. F. Murray, the Superintendent of AllagoUa, with qtiitting serviceunder section 11 of Ordinance No. ,11 of 1865, and was arrested ona warrant. When produced before the Magistrate the accusedconsented to go back to Allagolla; on that understanding he wasdischarged by the Magistrate, and he accordingly went baclt toAllagolla.
The accused was thereupon charged by Mr. E. Hawkins, theSuperintendent of Knavesmire, with quitting his sendee undersection 11 of Ordinance No. 11 of 1865. Mr. Hawkins deposedthat the accused came with a tundu dated 22nd April, 1906, fromMr. Hermann; that he wrote to Mr. Hermann and paid the tunduand employed the accused from 7th July; and that the accusedleft his service on 15th July, without notice or reasonable cause.
The acting Polioe Magistrate (J. R. Molligoda, Esq.) convictedthe accused and fined him Rs. 50.
The accused appealed.
H. A. Jayewyrdene, for the appellant.—The contract of servicewith Mr. Hawkins is bad, as the previous contract with Mr. Murrayhad not been legally determined and was still subsisting, Dunbarv. Robson (1). As the accused was obliged to go back to Allagollato avoid being convicted and sent to jail, he cannot be said to havewilfully deserted Knavesmire; he had sufficient cause for quittingservice (see Vanderstraaten’s Reports (1871), p. 178).
The accused left Allagolla in the bona fide belief that he wasentitled to leave, but the notice was held to be insufficient and hewas held liable to conviction.
Bawa, for the respondent.—The accused deliberately enteredinto a contract with Knavesmire estate, and he must be heldresponsible for his own act. He cannot be allowed to take advan-tage of his own wrong and thus avoid criminal responsibility.According to .the contention on behalf of the accused, if a coolyonce quits an estate without leave or reasonable cause, he is for everthereafter debarred from entering into a valid contract with anyother estate. The doctrine laid down in Dunbar v. Robson (1)cannot be carried to that extent. Besides, that case was one by oneSuperintendent against another for recovery of double advancesunder section 20 of Ordinance No. 13 of 1889; the criminal liabilityof a cooly who enters into two contracts of service was not discussedor decided there.
Cur. adv. vult.
(1) (1905) 5 Tambayah 58.
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24& October, 1906. Middleton J.—
This case has been considerably delayed by a search for therecord in P. C. 5,972 of Kandy, which apparently was attached tothe record in the present case all the time.
The appeal is from a conviction under section 11 of OrdinanceNo. 11 of 1865 for quitting service without leave or reasonable causeon the grounds that the accused, a cooly, (a) was not in the serviceof the complainant at the time when he is said to have left it; (b)that .if he was, he left it owing to reasonable cause.
The facts appear to be that the accused had been- a cooly on Alla-golla estate, which he left on lltb March, 1906, after apparentlygiving a defective notice. He appears then to have gone subse:quently to Knavesmire estate and taken service there as a monthlylabourer upon a tundu from another estate on or about 22nd Apriland began work on the 2nd May. On the 15th July the accusedleft Knavesmire without the actual leave of the Superintendent,hut the accused says, and it appears to be true, that he merely wentto Kandy to answer a charge of assault made against him in thePolice Court there. At Kandy he was arrested on a warrantcharging him with desertion from Allagolla, and to avoid beingsent to jail he says he agreed to go back to Allagolla and theMagistrate discharged him, upon which he returned to service atAllagolla.-
I think the Full Court case relied upon by counsel for the accused(1) must bind my decision in this case, which is practically on all fourswith that. There Chief Justice Creasy is reported to have said:“ If the defendants returned to Valikande through a well-groundedbelief that they would be punished if they did not do so, then sucha return cannot be treated as a desertion from Medagoda. ”
Here I have no doubt from the record in P. C., Kandy, No. 5,972,that the accused agreed to go back to Allagolla because he wasafraid of being punished by the Magistrate, who would undoubtedlyhave done so if he had not consented, whereupon he was. warned bythe Magistrate and discharged. It must be said, therefore, that hehad reasonable cause for not returning to Knavesmire, which willabsolve him from criminal responsibility.
The fact 4hat the reasonable cause, arises as a remote and possibleconsequence of his first offence does not appear to me, withoutauthority for saying so, to affect the question.
The accused is charged with and found guilty of quitting theservice of his employer, and therefore his absenting himself withoutleave for the day from the estate, if he did so, does not fall tfithin
(1) (1871) Vanderstraaten’s Reports (1871), 178.
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1006> the terms of that offence, which I take to mean a desertion orOctober 24. manent absenting.*
Middleton . Under these circumstances I must therefore set aside the con-J' viction of the accused and acquit him. It will not be necessary,therefore, to consider the question of an, alleged illegal incapacity toserve two masters.
RAMASAMY KANGANY v. RAMEN