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Present: Drieberg J.
YEERAPATHERAN v. PROPRIETORS OF EKKERALLA
123—C. R. Ratnapura, 20,310.
Master and servant—Action for wages by labourer—Quitting servicewithout notice—Right of employer to forfeit wages—Time ofpayment—Ordinance No. 13 of 1889, s. 10.
A labourer, who has quitted service without notice, is entitled tomaintain an action under section 10 of Ordinance No. 13 of 1889 torecover wages due for a completed term of service. In such a caseHie labourer may be paid his wages for the previous month at anytime during the following month ; whereas, if he had given noticehe would be entitled to payment on the termination of the contract.
npHIS was an action instituted under section 10 of OrdinanceI No. 13 of 18S9 by a head kangany for himself and on behalfof fifty labourers employed on Ekkeralla estate against the pro-prietors of the estate for the recovery of wages for the month ofJune, 1927, amounting to a sum of Rs. 500. It was contended onbehalf of the defendants that the plaintiffs were not entitled to theirwages as they had left the defendants’ service without notice. TheCommissioner of Requests held that no notice had been given bythe plaintiffs but that they were not disentitled for that reason fromclaiming their wages.
N. E. Weerasooria, for defendants, appellant.—Plaintiffs havenot complied with the provisions of the Labour Ordinance in thematter of giving notice of termination of their services. Thereforethey cannot avail themselves of the provisions of this Ordinance torecover their wages. Further, the Commissioner finds that they
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1928. did not give notice at the end of the month and that they left onVeerapa- ^une 30, 1927. They did not work on June 30. They are thereforetheran not entitled to recover any wages for the period they actuallyofP>EkkerMa wor^ed in June. The principle of quantum meruit will not apply toEstate contracts of this nature. Counsel referred to the case of Cutter v.Powell?
Aiyar, for the Agent of the Government of India.—Appellants’contention is wrong because the respondent’s contract is one con-templated by section 5 of Ordinance No. 13 of 1889. Sections 6 (1)and (3) merely provide for manner of giving notice and the time ofpayment. Their wages could in any event be claimed under theOrdinance. See section 10.
As regards the question whether the principle of quantum meruitcould be applied to this case, this does not arise. There is nodistinct finding by the Commissioner as to the exact moment whenthe plaintiffs left service. The evidence is they were on the estateon June 30 for muster. They must therefore be paid for the periodfor which they actually worked. The failure to give notice doesnot work a forfeiture of wages already earned.
October 30, 1928. Deieberg J.—
This appeal was listed before my brother Dalton, who, in view ofthe plaintiffs not being represented and of the importance of thequestion involved, directed that the appeal be set down for argumentafter notice to the Agent of the Government of India in Ceylon.
This action was brought under the provisions of section 10 ofOrdinance No. 13 of 1889 by Veerapatheran, a head kangany, forhimself and on behalf of fifty labourers who were employed onEkkeralla estate, against the appellants, the proprietors of theestate, for the recovery of wages for the month of June, 1927, whichthey estimated at about Rs. 500. The plaint was filed onOctober 21, 1927. The questions for decision are not affected bythe amending Ordinance No. 27 of 1927, which came into operationon December 24, 1927.
The appellants appeared by their proctor and undertook to file astatement and produce their books. Later they filed an accountprepared from the estate check roll showing only the amounts dueto each of the plaintiffs, aggregating Rs. 21104. Their proctor laterfiled a statement in the nature of an answer, in whch they said :“ Further to the extract from the check roll filed by us the defend-ants state that legally the plaintiffs are not entitled to the claimnor is the defendant under legal obligation to pay the amountsappearing on the said extract as the plaintiffs left the defendants’service without notice.”
' Smiths' Leading Cases, Vol. II., p. 17; 20 Halsbury, Master and Servantss. 216-218.
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At the trial the plaintiffs agreed to accept the account filed by theappellants and two issues were framed: (1) Was notice given byplaintiffs to quit; (2) if not, are the plaintiffs entitled to theirwages ?
It is important to note in view of a point raised in appeal to whichI shall refer, that the trial proceeded on the footing that the plaintiffshad worked during the month of June, and that the only reasonthe appellants advanced for denying their right to their wages forJune was that they had left on June 30 without notice. It was notsuggested that they had not performed their contract of servicefor the month of June.
The Commissioner found that notice of quitting service had notbeen given by the plaintiffs, but that this did not disentitle them totheir wages for June.
The contention in the lower Court was that as no notice had beengiven by the plaintiffs they were not entitled to claim their wagesfor June; but this is not so.
The contract of these labourers, there being no stipulation to thecontrai y, was a contract of hire and service for a period of one monthrenewable from month to month (see section 5 of Ordinance No. 13of 1889); at the end of June they completed a term of service andwere entitled to wages ; the only effect of their leaving on June 30after due notice would be that they would have been entitled toimmediate payment under section 6 (3), whereas if they had notgiven notice their wages could have been paid to them at any timeduring the month following (section 6 (1) ); their wages would inboth cases be due to them, though the time at which they coulddemand payment would be different.
' Now the plaintiffs committed no breach of their contract ofservice for the month of June ; the breach of contract on their partwas in not working from July 1 and occurred on that day, thecontract by reason of absence of notice being inlaw regarded asrenewed on that day for a further term of one month. This breachcannot affect the right of the plaintiffs to payment for an earlier andcompleted term of service for which they had earned their wages.If it did, it could only do so on some right like forfeiture which theappellants do. not possess. “ If the employer desires to be inposition to forfeit the wages of a workman who wrongfully leaveshis employment he must make it quite plain by the terms of thecontract that he has a right to do so,” (Lord Alverstone in Parkinv. South Hetton Coal Co. *).
At the appeal Mr. Weerasooria advanced two other arguments:one was that even if the wages for June were due and payable tothe plaintiffs when they brought their action, they were not entitledto make their claim in the statutory action under section 10; he
1 (.1907) 98 L. T. 162.
v. Proprietorsof EkkerallaEstate
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pointed to the unusual facilities allowed to plaintiffs in such actions
^j and to the. limited right of set-off and counterclaim allowed to
__' defendants, and he suggested that this special form of action should
Veerapa- not be permitted to plaintiffs who had made default in their obli-thewn
v. Proprietors gations. It is not possible however to import into the Ordinance°fany such restriction. ,If the amount claimed is “wages” as
defined by the Ordinance, and it is so in this case, an action undersection 10 is available.
His other contention was that the plaintiffs had not performedtheir contract of service for the month of June. He based this on astatement of the second witness, Tharasi Seranandi, a sub-kanganyunder the plaintiff, that they left the estate at about 8 a.m. onJune 30.
If this is so other'questions arise : Are the plaintiffs entitled towages at all if they left within the period of the contract ? ; and ifnot entitled to wages, are they entitled to compensation on the basisof a quantum, meruit, and if so does such compensation fall within thedefinition of wages in the Ordinance ? But these questions canonly arise if it was proved that the plaintiffs had not worked onJune 30. No attention was directed to this point and the trialproceeded on the footing that their only default was in their notgiving notice; .further, there is the evidence of the head kanganythat he worked on the estate on June 30. The appellants have ledno evidence on this point and nothing relating to it can be gatheredfrom the account filed by them, which only shows the total amountdue to each labourer.
I cannot accept the sub-kangany’s evidence as conclusive andapplicable to all the fifty plaintiffs, especially as no issue on the pointwas framed. I do not feel justified in sending a case of this natureback for evidence on a point not raised at the trial.
I dismiss the appeal.
VEERAPATHERAN v. PROPRIETORS OF EKKERALLA ESTATE