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Present: Wood Renton J.
SCOTT v. SELLAN KANGANY.
395—P. C. Hatton, 1,654.
Employment of Indian cooly without a discharge ticket or Magistrate'scertificate—Employer cannot prosecute a person harbouring coolyunder s. 19 of Ordinance No. 11 of 1865—Proof of service of noticeof appeal on respondent must be embodied in the record.
Appavoo, an Indian cooly, who was despatched from the depotat Ragama, on a certificate applicable to Ladbrooke estate, foundhis way to Ottery estate. On the superintendent of Ottery estate(complainant) writing to the superintendent of ..Ladbrooke estateof the fact, he wrote to the complainant to keep the cooly andsend a cheque for the cooly’s bill. Subsequently the complainantcharged the accused (Sellan Kangany) under section 19 of OrdinanceNo. 11 of 1865, with having wilfully and knowingly harboured thecooly.
Held, that the complainant cannot successfully maintain theprosecution against the accused.
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It must be observed that, although he is admittedly an Indianlabourer, he was taken into the complainant-appellant’s servicein direct violation of the provisions of sections 22 and 23 of “ TheIndian Coolies Ordinance, 1909.” His name was not entered inthe estate register, and he was received by the complainant-appellant without either a discharge ticket having been issued, or
the certificate of a Magistrate The complainant is not in a
position to prove that Appavoo was a servant bound to him by acontract of service.
Attention of Judges of first instance drawn to the necessity ofembodying proof of service of notice of appeal on respondent.
rjlHE facts are set out in the judgment of Wood Renton J.
Tambyah, for the appellant.—Though Appavoo was an " Indianlabourer,” he does not thereby cease to be a “servant” withinthe meaning of section .19 of Ordinance No. 11 of 1865. The newOrdinances (of 1889 and 1909) do not repeal section 19 of the oldOrdinance. There is conflict of opinion as to the extent to whichthe new Ordinance has affected the old Ordinance. See Welaydenv. Perumal,1 Henly v. Welayden? Ordinance No. 13 of 1889 says thatthe old Ordinance would stand, except where there is expressprovision io the contrary.
The letter of the superintendent of Ladbrooke estate amountedto a tundu. There is no prescribed form in which a tundushould be written.
Wills v. Higgins, relied upon by the Police Magistrate, does notapply. The complainant does not seek to enforce the allegedillegal contract. Counsel referred to Smith v. Manhood? Hermanv. Jeuchner.4
No appearance for respondent.
June 29,1911. Wood Renton J.—
This is an appeal, with the sanction of the Attorney-General, bythe superintendent of Ottery estate, Dikoya, against the acquittalby the learned Police Magistrate of Hatton of one Sellan Kangany,of Kiribatgalla estate, Ratnapura, on a charge of having wilfullyand knowingly harboured a cooly named Appavoo, a servantemployed on Ottery estate. The material facts are shortly these.Appavoo was despatched from the depot at Ragama, on a certificateapplicable to Ladbrooke estate, on August 19,1910. The certificatewas issued in accordance with the ..terms of. section .25 of “TheIndian Coolies Ordinance, 1909 ”. In company, as would appear,with other coolies Appavoo found his way to Ottery estate. Thecomplainant-appellant’s case was that he was a cooly intended forthat estate, and came direct to it, although on a Ladbrookecertificate. On August 21 the complainant-appellant would seem to
(1896) 2 N. L. B. 209.3 (1845) 14 M. <k W. 452.
(1891) 1 S. C. B. 136.1 (1885) 15 Q. B. D. 614.
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have written to the superintendent of Ladbrooke estate in regardto four coolies who had come to Ottery on Ladbrooke tickets. OnAugust 22 the superintendent of Ladbrooke estate replied to thatletter, which, so far as 1 can see, has not been put in evidence, andmade use of the following language—“ Will you kindly send me acheque for the amount of their bill ” (that is .to say, of the coolies’bill) “ and keep the coolies.” On August 25 Appavoo’s nameappears in the check roll of Ottery estate. It must be observedthat, although he is admittedly an Indian labourer, he was takeninto the complainant-appellant’s service in direct violation of theprovisions of section> 22 and 23 of “ The Indian Coolies Ordinance,1909.” His name was not entered in the estate register, and hewas received by the complainant-appellant without either a dischargeticket having been issued, or the certificate of a Magistrate, incompliance with the requirements of section 23, sub-section (1)(a) and (c), of the Ordinance of 1909, respectively. Clause (b) of thatsub-section is not applicable to the present case, for the Ragamaticket had been issued to the superintendent of Ladbrooke estate.Under these circumstances, the question that had to be decided is,whether or not the complainant-appellant can successfully maintainin law—for I am not here concerned with the facts—a prosecutionagainst Sellan Kangany for having harboured Appavoo. Theoffence of harbouring is defined by section 19 of Ordinance No. 11of 1865, and under the provisions of that section it is necessary thatthe servant alleged to have been harboured should have been boundby a contract to serve the employer who complains of the harbouring.The provisions of Ordinance No. 11 of 1865 do not, however, standalone. They are amended as to Indian coolies by those of OrdinanceNo. 13 of 1889, which are in turn amended by “ The Indian CooliesOrdinance, 1909 ”.
It is not necessary in the present case to consider the questionhow far the provisions of the principal Ordinance of 1865 havebeen superseded, as regards Indian labourers, by those of theOrdinances of 1889 and 1909. All those three Ordinances haveto be construed together in such cases as the present.' If weapply that test, what do we find ? Under section 19 of OrdinanceNo. 11 of 1865 it is necessary, as I have already pointed out, thatthe servant alleged to have been harboured should have been boundby contract to serve the employer, who is the prosecutor in the case.Here the complainant-appellant took the cooly Appavoo into hisservice under circumstances which the Ordinance of 1909 hasexpressly declared shall not constitute a contract of service for thepurposes of that Ordinance, and, as it appears tome, of the Ordi-nances of 1865 and 1889 also. Section 23 of Ordinance No. 9 of1909 provides that no employer shall take into his employment, orallow to be employed on any contract on his estate, any “ labourer,”other than a boy or girl who has been born in Ceylon and has not
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previously been employed on an estate, unless he has received—Iwill quote only the words applicable to the present case—in respectof such labourer either a discharge ticket, or the Police Magistrate’scertificate, for which the section provides. It is quite true that sub-section (2) of section 23 attaches a penalty to a breach of that duty.But it seems to me—and the decision in Wills v. Higgins1 corro-borates my view on the point—that sub-section (1) declares that anycontract entered into, except under the conditions that it prescribesshall be illegal. The complainant-appellant is not here suing onthe illegal contract, as was the case in Wills v. Higgins1, but he isbound to rely on that contract for the proof of the relation ofemployer and “ labourer,” or, for that matter, if we afe to confineourselves to the words of section 19 of Ordinance No. 11 of 1865, ofemployer and “ servant ”, as between himself and Appavoo, Inview of the provisions of section 23 of Ordinance No. 9 of 1909,no such relationship—for the purpose of proceedings undersection 19 of Ordinance No. 11 of 1865—existed. The complainant-appellant, therefore, on his own showing, is not in a position toprove that Appavoo was a servant bound to him by a contract ofservice. In addition to that fact, the evidence here shows thatAppavo~ was an Indian cooly, and that being so, I think we arebound Co look at the definition of the term “ labourer ” containedin section 2 of the Ordinance of 1909. According to that definition,.the term “ labourer ” means any labourer or kangany (commonlyknown as Indian coolies) whose name is borne on the estate register,for the keeping of which section 22 provides. Appavoo, thereforewas not a “ labourer.” But altogether apart from section 22,1 amclearly of opinion that, in view of the joint provisions of section 19of Ordinance No. 11 of 1865 and section 23, sub-section (1), ofOrdinance No. 9 of 1909, he was not even a, “ servant bound bycontract ” to serve the complainant-appellant in any sense thatwould lay a good foundation for criminal proceedings for harbour-ing. It would be a serious and a most inconvenient construction ofthe law if we were obliged to hold that an employer could deliberatelyset at defiance the provisions of Ordinance No. 9 of 1909, and yetenforce, by virtue of a contract of service declared illegal by thatOrdinance itself any of the provisions in the principal Ordinanceof 1865 which cannot be regarded as covering the same ground asthose of the Ordinances of 1889 and 1909.
It was argued by Mr. Tambyah, in support of the complainant-appellant's case, that the letter, which I have quoted above,from the superintendent of Ladbrooke estate to the complainant-appellant, constituted a tundu within the meaning of section 24,sub-section (1), of Ordinance No. 9 of 1909. I am not disposed toaccede to that contention. – The sub-section (I) speaks of a tundubeing issued so as to constitute an authority by the employer of
1 (1911) 14 N. L. R. 131.
the labourer to the latter to quit his estate. The letfe-: in questionis clearly not a document of that character. But even if it werethe point would not, in my opinion, help the complainant-appellant'at all. It would still be the duty of the employe who issued thetundu to prepare a discharge ticket, and without .ouch a ticketor Police Magistrate’s certificate the new employer could not legallytake the labourer into his service. On these grounds, I think thatthe appeal must be dismissed.
I am informed by the Registrar that there is no evidence in therecord, and I have not, from my own examination, been able tofind any, that the notice of appeal was ever sowed on the hocused.In the present case this fact makes no difference, as the appeal hasbeen dismissed, and the accused is in no way prejudiced. But Ihave recently again and again been compelled to postpone theargument of appeals from the minor courts, owing to the fact thatno proof of the service of notice of the appeal has been embodied inthe record. I desire, as pointedly and as publicly as I can, to callthe attention of Judges of first instance to this omission, and to thegreat inconvenience and waste of time which it occasions to theSupreme Court. It was only after the present case had been arguedfor the better part of an hour that the omission was discovered, andif the view that I took of the appeal had been favourable to the.complainant-appellant, all that time would have been wasted, as itwould have been necessary to send the case back to the Police Courtfor proof of the service of notice. By the time that the case cameon in appeal again, even if it did come before the same Judge, thefacts would have been forgotten, and the whole ground would havehad to be traversed afresh.
SCOTT v. SELLAN KANGANY