PULLE J.—Superintendent, Yataddta Estate, Matugama v. Muthuraman 523
1955Present: Pulle J.
fJUrtSRINTENDENT, YATADOLA ESTATE, MATUGAMA, Appellant,and MUTHURAMAN, Respondent
S. C. 247—Workmen’a-Compensation No. C. 30/7008/53
Workman's Compensation Ordinance (Cap. JIT)—Section 2 (1)—Superintendentoj an estate—Maintainability of claim against him—Is he an “ employer " t—Estate Labour (Indian) Ordinance (Cap. 112), ss. 3, 11-15.
In considering whether a claim for compensation under the Workmen’sCompensation Ordinance can be maintained by a workman against the superin-itendent of tho estate in which he works it is not permissible to call in aid thomoaning of tho word “employer" appearing in the Estate Labour (Indian)Ordinance. Tho superintendent who has himself taken employment on auoutruct of service at a fixed salary under the owners of the estate is not an“ employor ” within the meaning of that term in section 2 (1) of the Workmen'sCompensation Ordinance.
_^V.PPKAL from an order made under tho Workmen’s Compensation•Ordinance.
S. J. Kfidirijnnuir, with P. Somatilakam, for the appellant.
Walter Jayawardena, with R. Manicavasagar, for tho respondent.
Cur. adv. vult.
July 13, 11155. Pullk J.—
Tn this case the appellant is the superintendent of an estate called thoYatadola Group owned by the Kalutara Rubber Co., Ltd., whose agentsanil secretaries are Gordon Frazer & Co., Ltd. of Colombo. He appealsfrom an order made under the Workmen’s Compensation Ordinance(Cap. 117) whereby he was adjudged to pay to the respondent, a workmanemployed on the estate and who met with an accident on the 17th March,1953, a sum of Rs. 1,163-75 and the taxed costs of the action. The only]M>int that arises on this appeal is whether it can be said that the appellantwas the “ employer ” of the workman as that word is defined in-section2 (1) of the Ordinance. As it appeared to be inconceivable that eitherthe local agents or the owners of the estate would stand in the way of“the workman receiving the compensation, in the event of its being heldthat tho superintendent was not the right person to have been sued,I suggested to learned Counsel on both sides that the parties should comoto a settlement enabling the workman to draw the money deposited withthe Commissioner for Workmen’s Compensation. I was later informed,for reasons which I need not set out, that from the point of view of emplo-yers the question raised in this appeal is one of such general importancethat I should give a considered decision.
The burden was on the workman to prove that tho superintendentwas his employer for the purposes of the Ordinance. He did not give-evidence nor call witnesses, so that this case falls to be decided on thobasis of only the evidence given by the superintendent.
024 PULLE J.—Superintendent, Yatadola Estate, Matugama v. Muthuraman
Tho workman was first employed on the estate aa a labourer about1044 at which time the appellant was not the superintendent. Hebecame superintendent three years later being appointed to that office-by the local agents of the owners on a basic salary of Rs. 1,400 per mensem.On his contract of service with his employers, Messrs. Gordon Frazer & Co.,Ltd., he had naturally to perform such functions as were assigned to himby his employers. In other words, Gordon Frazer & Co., Ltd. had acontrolling power over the superintendent’s functions as to how he shoulddischarge them. If, as he says, he had upon instructions from hisemployers paid to a labourer money to which he was entitled under theOrdinance, that would be perfectly Consistent with his not being theemployer for the purposes of the Ordinance.
It is true that the appellant by virtue of his office would grant a dis-charge certificate under the Estate Labour (Indian) Ordinance (Cap. 112)and describe himself as the “ employer ”. The reason for it is that inCap. 112 the word “employer” means the chief person for the timebeing in charge of an estate, “ and includes the superintendent ”. Itdoes not follow that even for the purposes of that Chapter the actualcontract of service is regarded by law as one between the labourer and.the superintendent. For certain limited purposes a superintendentmay act as the agent of the employer without breaking the nexus between-the real parties to the contract of service. Such a limited agency isnecessary not merely for running an estate but any other business under-taking where its owner may choose to assign duties to responsible emplo-yees in the performance of which they would have authority to bind theowner. Now the proprietor of an estate is tho proper party to be sued bylabourers for the recovery of wages. That is evident from sections 11to 15 of the Estate Labour (Indian) Ordinance. These provisions, inparticular the rules and orders in Schedule A,'recognise that the contracts-of service are between the labourers and the proprietors.
The word “ employer ” in the Workmen’s Compensation Ordinance^is defined to include the “ managing ” agent of an employer. Therefore,,it is not every person who can be regarded as an agent who would come-within the definition. Section 2 (1) defines ‘‘ managing agent ” as “ anyperson appointed or acting as the representative of another person forthe purpose of carrying on such other person’s trade or business, but-does not include an individual manager subordinate to an employer ”,The local agents come clearly within the definition and equally clearly;,it seems to me, the superintendent who has- himself taken employment-on a contract of service at a fixed salary is excluded from the definitionbecause he can, at the most, be doscribed as a manager subordinate to-an employer. Nor is he, vis-a-vis the workman, in the position of amindependent contractor." – .'
I am unable to read the Workmen’s Compensation Ordinance as beingin pari materia with the statutes dealing with Indian immigrant labourersfrom the bare circumstance that they come within the definition of“ workman ”. Whether a superintendent is an employer for the purposesof tho Ordinance iB a question the answer to which must be sought withinthe Ordinance. It would be a strange result if, by having recourse-
Til re Evelyn Wai nrtkulasuriya
to tho statutes which I have mentionod, one holds that a claim for work-men’s compensation by an immigrant labourer can bo maintained againsttho superintendent of the estate on which ho works and that a similarclaim against the same superintendent by a non-immigrant labourerwould be defeated as being made against the wrong party, because inthe latter case it would not be permissible to call in aid the same statutes.I do not think that it was the intention of the legislature to introducesuch a refinement into the Ordinance.
Tho award up}>oaled from is set aside but J make no order as to costs.I hoj»e that this decision on what may be regarded as a technical pro-cedural point will not result in the deprivation of tho compensation towhich otherwise the workman was clearly entitled. ’
SUPERINTENDENT , YATADOLA ESTSTE, MATUGAMA, Appellant , and MUTHURAMAN , Respond
PULLE J.—Superintendent, Yataddta Estate, Matugama v. Muthuraman 523