105-NLR-NLR-V-19-BIRTELL-v.-SEVATIAN.pdf
I 411 )
Present: De Samp ayo J.
BIRTELL v. SEVATIAN.
24—P. G. Kegalla, 22,914.
Master and servant—Leave ofabsencefor one month—Is contractof
service at an endt
An Indian cooly on a monthly contract of service obtained leaveof absence forone month from hisemployer, and onhisreturnto
the Island took service on another estate.
Held, that he was not guilty of quitting service of his employerwithout leaveor reasonablecauseunder section 11ofOrdinance
No. 11 of 1865.
Where leaveof absence isgrantedfor a full monthormore,the-
monthly contract is, as a necessary consequence, thereby terminated.
fjpHE facts are set out in the judgment.
Cooray, for accused, appellant.
F. M. de Saram, for complainant, respondent.
January 26, 1917. De Sampayo J.—
This appeal raises a very important point relating to the law ofmaster and servant. The accused was a cooly employed on Yata-deriya estate upon the usual monthly contract of service renewablefrom month to month. On April 5, 1916, he obtained from his-employer one month’s leave of absence and went to India, butinstead of returning to Yataderiya estate he, in August, 1916, took,service as a cooly on Higgoda estate. 5e has now been charged,under section 11 of N the Ordinance No. 11 of 1865, with havingquitted the service'of his employer, before the end of his term ofservice, without leave or reasonable cause. There appears to besome excuse for his going to Higgoda estate, for he understood fromhis brother, who was also employed as a kangany- on Yataderiyaestate, that a tundu for several coolies, including himself, hadbeen obtained, though, as a matter of fact, the tundu was not issuedtill -November. The Police Magistrate, however, thinks that hehad reason to know, when he went to Higgoda estate, that the-tundu had not yet been issued, and that, therefore, he had no'reasonable cause for not returning to Yataderiya estate. But it is-contended by Mr. Cooray, for the accused, that the conviction inany case is bad, because at the time of the alleged offence there-
1917…
( 412 )
1917.
De SampayoJ.
Birtett v.JSevcUian
was no subsisting contract on the accused’s part to serve on Yata-deriya estate, and the decision in Meyyan v. Alegamtma 1 is cited insupport of this contention. I think this case is covered by thatdecision. For it is-there held that, where leave of absence is grantedfor a full month or more, the monthly contract is, as a necessaryconsequence, thereby terminated. I find that I appeared as counselfor the complainant in that case, and 1 need only refer to thearguments there advanoed as to what might be said in support ofthe contrary view. The reason for the decision is* (to quote from-the judgment of Burnside C.J.) that, “ where, by mutual agreement,•such as the. master giving and the servant taking one month’sleave, the service has been suspended for a month, the master isnot bound to pay wages, nor the servant to render services, andconsequently, at the end of the leave, there is no existing contractof service which the law can operate on, and renew, and a servantwho does not then return to service cannot be said to have quittedbefore the end of his service. ” In enforcing this interpretation ofthe law, the learned Judge observed that if this were otherwise,leave for a year or for a number of years might be given, and the^contract of monthly service held to subsist all through, which•would be a reductio ad absurdum. 1 confess that I do not see thatan absurdity must necessarily arise. For if the leave is given undersuch' circumstances—the length of the leave may be one of theril—as to – lead to the inference that .the contract of service isimpliedly terminated, then, of course, the servant is no longer bound-by his contract, and will commit no offence by not returning to ser-vice; but if the circumstances are otherwise, and both parties un-derstand that the leave is only leave, and not a termination ofthe contract itself, there does not appear to me to be a logical orlegal reason why a month’s leave should be taken to have destroyed, -the monthly contract. If thin view of the matter is correct, thenthe question will always be one of fact. But whatever my opinionmight be, I am bound to follow Meyyan v. Ale gamma (supra), whichIs a decision of tile Full Court, and to hold that the conviction in4his case, the facts of which are quite the same, cannot be sustained.
The conviction is set aside and the accused is acquitted.
Set aside. 1
1 (1891) 9 S. C. C. 156.