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Present: Wood Benton J.
SAXTON u. WILSON.
535—P. C. Matale, 370.
Labour Ordinance, No. 13 of 1889, a. 6—No. 9 of 1909, a. 4—Failure topay coolies their 'wages before end of following month—Request bycoolies to hold back wages—Government Agent has locus standi toprosecute.
A superintendent of an estate did not pay the coolies their wagesfor November, 1912, in the following month at the request of thecoolies themselves, who were anxious that the money should bekept back and paid to them with their wages for December inJanuary, 1913, just in time for the Thai Pongal festival. Thesuperintendent intimated to the coolies that he was prepared topay them on December 28, but as the coolies had intimated theirwish to get their wages in January, he took a comparatively smallsum of Ks. 500, which would have enabled him to pay at once anymalcontents.
Held, that the superintendent was guilty of an offence undersection 6 of Ordinance No. 13 of 1889, as amended by OrdinanceNo. 9 of 1909.
Wood Renton J.—I cannot hold that there was anything thatcan fairly be described as a tender of the wages to the coolies so asto bring the case within sub-section (5) (a) of section 6. Nor do Ithink that the case can be brought within sub-section (6) itself.
A Government Agent has a locus standi to appear as prosecutorin cases of this kind.
'J' T-TF. facts appear from the judgment.
Wadsvtorth, Tor the accused, appellant.—The Government Agenthas no status under the Ordinance to prosecute the accusedfor non-payment oi wages to the coolies. The action should bebrought by the cooly himself. It was held by this Court inseveral cases that only the employer or some person dulyauthorized by the employer could prosecute a cooly for offencesunder section 11 of the Labour Ordinance (No. 11 of 1865).See Kanda8amy n. Muttamma,1' Cadersa v. Muttamma,2 Hall v.Kandeswamy* The same principle would apply here. The coolyis the only person aggrieved by the omission. The accusedoffered the wages for the month of November in December.He had actually told the coolies so, and had on the day appointeda sum of money with him to pay them. But the coolies preferred'
1 (1898) 2 N. L. R. 71.2 (1902) 6 N. L. R. 120.
(1910) 5 A. C. R. 12Z,
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to leave the wages to accumulate for two months. The accusedshould not be held to have committed an offence under theOrdinance under these circumstances.
Counsel referred to Same v. Nattatamby.1
Garvin, 'Acting S.-G., for the respondent.—[His Lordship calledupon respondent's counsel to reply to the first objection—theright of the Government Agent to prosecute.] The cases cited arecases of quitting service; there was only a breach of contract.Here there is not only a breach of contract, but the infringementof a statutory duty. It is the Government Agent who has, underthe Ordinance, to see to the working of the Ordinance in hisprovince.
August 7, 1913. Wood Renton J.—»
This case, if I may .say so, has been extremely well argued onboth sides, and raises questions of law of considerable generalimportance under the Indian Coolies Ordinance, 1909. The com-plainant is the Government Agent of the Central Province. Theaccused is Mr. Wilson/ the superintendent of certain estates in thedistrict of Matale. The prosecution is instituted under section 6 (1)of the Indian Coolies Ordinance, 1889 (No. 18 of 1889), as amendedby section 4 of the Ordinance first referred to. The section inquestion provides that “ it shall be the duty of every employer topay the wages of the labourers in his employment monthly, withinone month from the expiration of the month during which thewages have been earned. * ’ 'The section goes on to provide that anemployer who is guilty of a breach of the requirement of the Ordi-nance as to the monthly payment of wages shall be quilty of anoffence, and shall be liable on conviction to a fine which may extendto Ks. 50 on a first conviction, and Rs. 200 on a second or anysubsequent conviction. The facts here are not in dispute. Nodoubt is thrown or can be thrown on the good faith and credibilityof Mr. Wilson, or Bis Assistant Mr. Tyler, who also gave evidencein the case. The only; question is whether or not Mr. Wilson hascommitted the statutory offence. The allegation on behalf of theprosecution iB that, while under the Ordinance his coolies' wagesfor the month of November, 1912, should have been paid before theend of December in that year, they were held back, and were paidonly with the December wages in January, 1913. That allegationis undoubtedly substantiated by the evidence. Indeed, there is nodenial of it by Mr. Wilson or by Mr. Tyler. PrimA facie, therefore,the statutory offence has been committed. Two points, however,have been urged with a view to rebutting the primd' facie case whichthe evidence discloses. Of these pleas, one depends on the merits,and the other raises a question, although an important question, ofi (1006) 8 N. L. R. 268, at p, 260.
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form. I will deal with the latter first. It is argued that the.Government Agent has no locus standi under the Ordinance to appearas prosecutor in cases of this kind* In support of that contentionMr. Wadsworth* has referred me to a group of cases—Kandasamy v.Muttamma,1 Ctidersa v. Muttamma,3 Hall v. Kandeswamy 3—theshort effect of which is that, in prosecutions under the LabourOrdinance, 1865 (No. 11 of 1865), section 11, only the employer, orsome person proved to have been authorized by the employer inthat behalf, can prosecute. tThose cases do not appear to me to beapplicable to the question that I have here to decide, for two reasons.In the first place, they deal with an offence, namely, quitting servicewithout notice, which is directly and primarily a breach by theemploy^ of his contract with his employer. The duty of the em-ployer under section 6 (1) of Ordinance No, 13 of 1889 is somethingmore. Failure to pay the wages of the cooly at the time when theLegislature has declared them to be due is no doubt a breach ofcontract as regards the cooly. But it is also a breach of a specificduty imposed upon the employer by the enactment in question—aduty for the purpose of safeguarding the performance of which theLegislature has imposed upon the employer another obligation,namely, that of forwarding to the Government Agent, under apenalty for default, a declaration that it has been duly fulfilled. Inthe second place, the structure of Ordinance No. 13 of 1889, asamended by Ordinance No. 9 of 1969, itself seems to me sufficientto indicate an intention on the part of the Legislature to give theGovernment Agent a locus standi where the statutory duties havebeen disregarded. I have already pointed out that the Ordinancerequires the employer to forward a declaration that the'monthlywages have been duly paid to the Government Agent, and theamended section provides that, where a fine imposed on an employerfor failure to pay the wages of his labourers within the prescribedperiod has not been paid within twenty-one days from the date ofits imposition, the Government Agent may recover the amountin the manner provided by section 22 of the Medical Wants Ordi-nance, 1880. Moreover, other statutory provisions in the newOrdinance require employers to prepare and keep complete registersof their labourers, and it certainly has been the practice for prosecu-tions for breaches of these provisions to be instituted by the Govern-ment Agent, although there is nothing in the enactment itself whichexpressly authorizes him to prosecute. On these grounds I hold thatthe formal objection to this prosecution fails.
I come now to the objection of substance. The defence set up byMr. Wilson at the trial was, and the evidence shows, that he did notpay the coolies* wages fear November, 1912, in the following monthnt the request of the coolies themselves, who were anxious that the
* (1896) 8 N. L. B. 71.* (1968) 8 N. L. B. 186.
(1916) 5 A. C. B: 185.
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money should be kept back and paid to them with their wages forDecember in January, 1918, just in time for the* Thai Pongalfestival. It was contended in the Court below, .and has beencontended here, that, as Mr. Wilson was ready and willing to paythe coolies their November wages in December, told them that hewas so, and was in fact ready on December 28 with a sum of Bs. 500,which would have been sufficient to meet thei claims of any coolieswho were dissatisfied with the arrangement as .to the retention ofthe wages, he must be held either to have paid the money'to thecoolies within the meaning of the amended section 6 (6) (a), or,within the meaning of sub-section (6) of that section, to have beenprevented from doing so owing to “ the absence ” of the coolies, forthey did not in fact attend on the ordinary day and at the ordinaryplace of payment, or from an “ unavoidable cause.” The learnedPolice Magistrate has over-ruled this contention, as he over-ruledalso the formal objection of which I have already disposed. Heconvicted Mr. Wilson, and sentenced him to pay a fine of Bs. 80. Itappears to me that, on the merits as well as on the formal questionas to the right of the Government Agent to prosecute, the decisionof the Police Magistrate is correct. There was nothing here in thenature of a tender. Mr. Wilson no doubt intimated to the cooliesthat he was prepared to pay them on December 28. But when hewas made aware of their insistent request that the wages should bekept back till January , he .took no steps which would have enabledHim to pay the coolies in full if they had changed their minds andin fact had come forward and asked for payment. He was pro-vided merely with a comparatively small sum, which would haveenabled him to pay at once any malcontents. I cannot hold thatthere was here anything that can fairly be described as a.tender ofthe wages to the coolies so as to bring the case within sub-section(5) (a) of section 6. Nor do 1 think that the case can be broughtwithin sub-section (6) itself. It is true that the coolies on the day inquestion were absent. But the sub-section contemplates absenceof an unavoidable character in so far as the employer is concerned.The words are: “ Owing to the absence of any labourer or to anyother unavoidable cause.” There is nothing in the .evidence in thepresent case to show that if Mr. Wilson had said to the coolies:
" The intention of the law! is that your wages should be paid to youevery month, and I require you to be present on a specified day, sothat I may discharge the duty which the law has imposed upon jme,**they would have not attended in full force. This observationapplies equally to that part of the argument which turns on thewords ” unavoidable cause.” I agree with the Police Magistrate,that the probability is that if Mr. Wilson had regarded it as hisduty to see that the coolies were paid their November wages beforethe month of December expired, and had brought a little pressureto bear upon them, they would have accepted their wages without
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further demur. In these eiroumstances, it cannot be said that thefailure to pay the wages was due to any unavoidable cause. If thelaw were to be interpreted in a contrary sense, one of its mainobjects would in a great measure be defeated. The intention ofthe Legislature was to exempt the cooly from imprisonment fordebt by giving him practially no excuse for getting into debt.The only means of securing that end is to provide that his wagesshall be paid to him monthly. The practical result of wages beingheld back in prospect of a great and popular festival would be thatthe cooly would get. into debt before the time for the festival came,and that when it came he would spend the wages that were paid tohim on the festival and not in payment of his debt. The appealmust be dismissed. But as there has been no previous decision onthe question involved in it, I propose em mero moiut for no applicationwas made to me on the point by the appellant’s counsel, to reducethe penalty from one of Bs. 30 to one of Bs. 5/
SAXTON v. WILSON