064-NLR-NLR-V-21-BURNE-v.-MUNISAMY.pdf
( 193 )
Present: De Sampayo J. and Schneider A.J.
BUBNE v. MUNISAMY650—P. G. Kalutara, 50,525
Calendar month—Notice of intention to quit service—Ordinance No. 11 of
1865—Computation of time.
Under Ordinance No, 11 of 1865 a labourer ■ can give on any dayof the month notice of his intention to quit at the end of a monthfrom the day of such notice.
Where such notice was given by a cooly on June 11, it was heldthat the calendar month expired at midnight on July 11.
case was referred to a bench of two Judges by Loos A.J.
The following is his judgment: —
The accused was convicted of having quitted the service of theSuperintendent of Miriswatta estate without leave or reasonablecause, under the provisions of section 11 of the Ordinance No. 11 of1865.
" On June 11, 1919, a notice was received by the complainant fromthe accused surd several other coolies of the estate that they willquit his service on the expiration of one month from that date, andon July 11, 1919, at 6.15 a.u., the accused quitted the estate.
It was contended on behalf of the accused-appellant that onecalendar month had expired, and that he was, therefore, entitled toquit on July 11.
The Magistrate convicted the accused, being bound by thedecision of this Court in P. C. Nuwara Eliya, No. 2,641, to the effectthat a calendar month’s notice to quit service should be givenbefore the first of the month, to commence with the first day of themonth and terminate with the end of that month, but expressed adoubt as to whether section 4 of the Ordinance No. 11 of 1865 didnot provide that a labourer’s contract could be terminated by anotice of one month composed of broken periods of calendarmonths-
I am of opinion that there is room for doubt on this point, andas the matter is one in which the question should be finally decidedby this Court, I think it is desirable that this appeal should be listedbefore two Judges for decision.
J. 8. Jayawardene (with him Sunderam), for accused, appellant.—Notice to quit may be given to run from any day in the month.See Grenier {1873) 42. The statement in the case relied on by the
1919.
I 194 )
1918..
Bumev.
Munisamy
Magistrate (1 Ceylon Lam Recorder 33) is only obiter. The monthexpired on July ..10. The accused was right in quitting service onJuly 11. See Migotti «. Colville.1
Wijemanne, for complainant, respondent.—The month expiredon the midnight of July 11. Counsel referred to 1 C. W. R. 22.
Cur. adv. vult.
September 22, 1919. De Sampayo J.—
The accused was a cooly employed on Miriswatta estate on amonthly contract of service. On June 11, i919, he gave notice ofhis intention to quit service at the expiration of one month fromthat date. He left the estate at 6.30 a.m. on July 11, 1919, and hehas been prosecuted for quitting service without reasonable cause,and without giving due notice. The Police Magistrate convictedthe accused and sentenced him to two week’s simple imprisonment,and the accused appealed. My brother Loos has referred the case .to a Bench of two Judges, especially in view of the judgment of mybrother Schneider in P. C. Nuwara Eliya 2,641.2
The points of law to be determined are (1) whether the calendarmonth for which notice is required to be given should commence onthe first day of a month and terminate on the last day, or whetherit may consist of broken periods of two months; and (2) whether themonth had expired when the accused in this case quitted serviceon July 11.^ .
In the Nuwara Eliya case above referred to, my brother Schneiderconsidered that for this purpose a calendar month meant a monthcommencing from the first day of the month and terminating onthe last day. I entertain a different view on this point. The provi-sion of section 3 of the Ordinance No. 11 of 1865 is that every verbalcontract of service shall be deemed to be a contract for the period ofone month, and to be renewable from month to month, “ unless onemonth’s previous notice of warning be given by either party to theother of his intention to determine the same at the expiry of a monthfrom the day of giving such notice. ” The Interpretation Ordinance,No. 22 of 1901, section 3, declares that “ month ” in every Ordinance,unless there is something repugnant in the subject or context, shallmean a calendar month. According to the general rule, a calendarmonth does not necessarily mean only a month commencing from'the first day; it may consist of broken periods of two months.But, apart from that rule, the Ordinance itself contemplates noticebeing given to commence from any day in the month, for it providesfor a period of one month “ from the day of giving such notice,and not from the beginning of . a month. This is made more plainby section 4, which provides that where the service shall have beendetermined by notice on a day other than the last day of the month,1 48 L. J. C. P. 695.' * Ceylon Law Recorder 33.
( ias )the wages for the broken period shall be payable to the day theservice is so determined. So far back as 1873 Creasy C.J. said:
“ The 3rd clause, especially when read in connection with the 4th,shows clearly that a cooly can, at any time and on any day of hismonthly service, give a valid notice of his intention to leave ‘ at theexpiry of a month from the day of giving such notice.’ ” 1
The other question involved in the case is somewhat more difficult.The notice having been given on June 11, when did the calendarmonth expire? As was said by Brett L.J., in Migotti v. OolviUe,aa “ calendar month ” is a legal and technical term, and in computingtime by calendar months, the time must be reckoned by looking atthe calendar, and not by counting days. The space of time from aday in one month to the day numerically corresponding to that dayin the following month is a calendar month. But in pursuance ofthe general rule with regard to computation of time as well as thepositive enactment of section 9 (1) of the Interpretation Ordinance,1901, the day “ from ” which the time runs must be excluded, andthe day for the act to be done must be included. Thus, where acalendar month’s notice of action was necessary, a notice given onApril 28 was held to expire on May 28, and the action to have- beenproperly commenced on May 29 (Freeman v. Bead *). In that caseBlackburn J. observed:“ It has been well settled that the calendar
month required by the Statute begins at midnight on the day onwhich the notice was given, and generally it ends at midnight of theday with the corresponding number of the next ensuing month in thecalendar. ” Applying these principles to the present case, June 11, ohwhich notice was given, being excluded, I conclude that the calendarmonth expired at midnight of July 11. The accused having left inthe morning of July 11, he must be held to have left one day too soon.See also Dunlop v. Coopan.* Mr. J. S. Jayawardene, for the accused,however, referring to Migotti v. Colville (supra), contended that onemore day must be excluded in the computation. That was a casein which the plaintiff had been convicted and sentenced to onecalendar month’s imprisonment on October 31, and to a furtherterm of fourteen days, to commence at the expiration of the calendarmonth’s imprisonment, and having been detained in prison till 9 a.m.on December 14, he brought the action for illegal detention fromDecember 13 to December 14, his contention being that he wasentitled to be released on December 13, but the Court held thatthe plaintiff's second period of imprisonment expired only onDecember 14, and affirmed the dismissal of his action. The passageon which Mr. Jayawardene relies is in the judgment of Bramwell D.J.,who said, “ one calendar month’s imprisonment is to be calculatedfrom the day of imprisonment to the day numerically correspondingto that day in the following month less one. ” This expression
1 Grenier (1873) at page 42.
* 48 L.J. O. P. 695.
mo.
Db SawayoJ.
Burner.
Munieamy
* (1863) 4 B. <b 8.174.
4 (1915) 18 N. L. B. 440.
( i»e )
1919.
De SampayoJ.
Burnt v.Muniaamy
“ less one ” is, however, easily explainable. The rufe as to theexclusion of the first day in a period o£ time is a general rule only,and may be altered by any particular circumstance governing &case, and an imprisonment case is an exceptional case of that kind.The first day of imprisonment must be counted in favour of theprisoner. That day is indivisible, and the prisoner is presumed tohave been imprisoned the whole of that day, and consequently thecalendar month would be computed from that day inclusive to thenumerically corresponding day of the following month less one day.The decision in Migotti v. Colville does not support Mr. Jaya-wardene’s contention.
Although the questions of law only were referred to this Bench,counsel on both sides have agreed that we should at the same tunedeal with the appeal. For the reasons above given, the convictionshould, I think, be affirmed, but, in my opinion, the sentence ofimprisonment is inappropriate. The accused, in leaving on July 11,acted quite bona fide, and may well be excused for misinterpretingthe law, which has required to be referred to two Judges of thisCourt for decision. I would set aside the sentence of imprisonment.If necessary, I would impose a nominal fine, but as I find from therecord that the accused suffered four or five days’ imprisonmentpending this appeal, I think there is no need to sentence him to anyfurther punishment.
Schneider A.J.—
1 agree with my brother De Sampayo in regard to the points oflaw discussed and decided in his judgment, and also as to theconviction and sentence of the appellant. But I desire to add thatthe decision of the law in this appeal does not touch my decision inthe case referred to from the Police Court of Nuwara Eliya, becausethat decision was founded on the fact that the accused had quittedhis master’s employ before the expiration of the month, whetherthe month was reckoned by broken periods or otherwise.
My remarks in that case, that the month should be reckoned asfrom the first to the last day of a month according to the calendar,are no more than obiter dicta, but they are obviously misleading. Inmaking them I had overlooked the clear indications in section 3and 4 of the Ordinance, that the broken period of one calendarmonth was to be reckoned with the broken period of another calendarmonth in calculating the month’s notice.
But for these indications, I would adhere to the opinion I hadthen expressed.
Varied.