054-NLR-NLR-V-58-ANGAMUTTU-Appellant-and-THE-SUPERINTENDENT-OF-TANGAKELE-ESTATE-Respondent.pdf
Present : T. S. Fernando, J.
ANGAMUTTU, Appellant, and THE SUPERINTENDENTOF TANGA KELE ESTATE, Respondent
S. G. 39S—21. C. JJallon, 77S7
Criminal trespass—Misconduct of estate labourer—Refusal to quit estate afterdismissal—Estate Labour {Indian) Ordinance (Cap. 112), ss. 2, 4, 5—ServiceContracts Ordinance (Cap. 69), ss. 3, 4—Penal Code, s. 433.
Tho provisions of section 5 of t!io Estate Labour (ln. Iiau) Ordinance set- outIjq1ow :—
" and every stiel: contract- shall be ilecincil and taken in Jaw to be so renewed{from month to month) unless ono month’s previous notico bo given byeither party to tho other of his intention to determine tho same at thoexpiry of ono month from tho day of giving such notice. ”are not inconsistent or in conflict with the provisions of section 4 of tho ServiceContracts Ordinance relating to tho determination of a contract on tho groundsof misconduct-. Them is nothing “ otherwise expressly provided ” in the EstateLabour (Indian) Ordinance which could mako tho provisions of section 4 of thoService Contracts Ordinance inapplicable to tho case of an Indian estate labourer.
IVheii an estate labourer who has been dismissed for misconduct remains onthe estate contumaciously in circumstances which cannot but annoy the Superin-tendent, he would be guilty of criminal trespass.
ATaPPHAL from a. judgment of the Magistrate’s Court, Hatton.
Ar. D. 21. Samarahoon, wit-li J. C. Thitrairalnam, for the accused-appellant.•
S. •/. Kadirgamar, with P. Somatilleham, for the complainant-respondent.
Cur. adv. vult.
July 17, 1956. T. S. Ferxaxdo, J.—
The appellant, a labourer within the meaning of the Estate Labour(Indian) Ordinance (Cap. 112), who was employed on Tangakelc Estate,Lindula, was summoned to the office of the Superintendent on 2SthOctober 1955 and was requested by the latter to leave the service ofthe estate. He was offered on that day his discharge certificate and thebalance of the wages due up to that day. The cause of this' summarydiscontinuance .of the services of the appellant is not clear, but it wouldappear from the evidence that the appellant had had some trouble withthe conductor of the estate resulting in a prosecution and a conviction ofthe appellant in a court of law. Although not so put in express wordsin the evidence, the discontinuance appears to have been occasionedby his misconduct. The appellant refused to accept his dischargecertificate or the balance of his wages and refused also to leave the estate.Having waited exactly one month in the hope that the appellant wouldreceive better advice and leave the estate, the Superintendent made acomplaint to the Magistrate's Court on 2Sth Xovember 1955 that theappellant continues unlawfully to remain on the estate with intent toannoy him, thereby committing the offence of criminal trespass punish-able by Section 433 of the Penal Code. After trial the Magistrate con-victed the appellant atid sentenced him to six weeks’ rigorousimprisonment.
The appellant in the course of his evidence at the trial which tookplace on 1st Fcbruary 1956 stated that even if he is given his dischargeticket, his pay, his wife’s discharge ticket and her pay, he will not leavethe estate. Subject to the consideration of a point of law advanced onbehalf of the appellant- at the hearing of the appeal, I am of opinion thatthe learned Magistrate was clearly right in convicting the appellant on acharge of criminal trespass because the answers reproduced above givenin evidence by the appellant are as clear an indication as possible that hois remaining on the estate conlxunaciously in circumstances which cannotbut annoy the Superintendent.
I did not understand Counsel for the appellant as arguing that theservices of a person coming within the meaning of a labourer under theEstate Labour (Indian) Ordinance cannot be discontinued summarily formisconduct. Indeed, there arc maivy cases in the law reports whichchow that a right of an employer to dismiss Indian estate labourerssummarily for misconduct has been recognised. One such case is thatof Marimuitu v. Wright1, and the observations of Canckeratnc J. in thatcase appear to indicate that a labourer's services can be so discontinued.
I understood Counsel's argument to bo that even if the Superintendentdismissed the labourer summarily for misconduct, the labourer wasentitled to remain on the estate for one month by reason of the operationof Section 5 of the Estate Labour (Indian) Ordinance.
The Service Contracts Ordinance (Cap. 59) recognizes the right of anemploj'cr to dismiss or discontinue for misconduct a labourer whoseemployment is governed by that Ordinance. In the event of discon-tinuance for misconduct, the Ordinance recognizes that the employer is notliable to give a month’s notice to the labourer or to j>ay him wages forany period bej ond the day of such discontinuance, i.e., the last day ofhis employment—vide Section 4. Section 2 of the Estate Labour(Indian) Ordinance provides that the Ordinance shall, so far as is con-sistent with the tenor thereof, be read and construed as one with theService Contracts Ordinance, and Section 4 extends certain provisionsof the Service Contracts Ordinance to labourers and employers under theEstate Labour (Indian) Ordinance.
Counsel for the appellant seeking to make use of the expression “ ex-cept as in this Ordinance otherwise expressly provided ” occurringin Section 4 of the Estate Labour (Indian) Ordinance argues that Section 4of the Service Contracts Ordinance can extend to the case of Indian
(JO 17) 4S N. L. R. 253 at 256.
labourers employed on estates only if express provision otherwise hasnot been made in respect of their contracts of service by the EstateLabour (Indian)..Ordinance. He states that such express provision iscontained in the following words occurring in Section 5 of the EstateLabour (Indian) Ordinance :
“ and every such contract shall be deemed and taken in law to be sorenewed (from month to month) unless one month’s previous notice begiven by either party to the other of his intention to determine thesame at the exphy of one month from the day of giving such notice. ”
Quite apart from the fact that the very same words appear in Section 3of the Service Contracts Ordinance, it is sufficient to say that that partof Section 5 of the Estate Labour (Indian) Ordinance reproduced aboveis not in my opinion a provision inconsistent or in conflict with the pro-visions of Section 4 of the Service Contracts Ordinance relating to thedetermination of a contract on the grounds of misconduct. There istherefore in my opinion nothing “otherwise expressly provided”in the Estate Labour (Indian) Ordinance which could make the provisionsof Section 4 of the Service Contracts Ordinance inapplicable to the caseof an Indian estate labourer. Moreover, it seems to me that if a contracthas been determined by an employer, whatever the grounds for suchdetermination may be, there is no contract in existence capable of renewal.The contracts that are deemed to be renewed as contemplated in Section 4of the Estate Labour (Indian) Ordinance are contracts which are inexistence up to the moment of renewal. I am therefore of opinion thatthe point of law raised on behalf of the appellant fails.
It should be noted that in the case before me the apjoellant, thoughnot entitled thereto, has had one. month’s time to quit the estate. If theappellant is advised that lie has been wrongfully dismissed, it is opento him to pursue any civil remedy he majr have. He cannot be heard tosay that he is entitled to remain on the estate defying the Superintendent.His appeal is therefore dismissed..
-1 piica l dium i.ssed.