CADERSA v. MUTTAMMA

024-NLR-NLR-V-06-CADERSA-v.-MUTTAMMA.pdf


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lwa’CADERSA v. MUTTAMMA.
July 31 and
Augutt l.p Q ' Avissawella, 7,530.
Labour Ordinance, No. 11 of 1865—Substantial irregularities—Unsigned com-plaint—Form of plaint—Proper party to prosecute a cooly for quittingservice, in breach of e. 11.
It is a fatal irregularity to issue a warrant for the apprehension of acool;, upon a charge of quitting the service of his employer withoutnotice or reasonable cause, if the complaint, reduced into writing b;the Magistrate, is not signed b; the complainant as required b; section150 of the Criminal Procedure Code.
A plaint in the following terms: " that you did on, " Ac., “ quit the;service of Mr. B without notice or reasonable cause, and therebycommitted, ” &o.—is radically bad, for the essence of the offence consti-tuted by section II of the Labour Ordinance is quitting service beforethe end of the term of service or previous warning..
A kankani’s prosecution of a cooly for an offence under section II ofthe Ordinance is not legal without proof that such kankani had theauthority of the employer of the cooly to prosecute him.
I
N this case the accused, an Indian cooly woman, was chargedby a kankani with having quitted the service of Mr. Bayley,
the Superintendent of Elston estate, on the 25th February, 1901,without notice or reasonable cause, and thereby having committedan offence punishable under section 11 of Ordinance No. 11 of 1865.The facts in detail appear in the argument, given below, of thecounsel for the accused.
The accused was convicted by Mr. M. S. Pinto and sentencedto three months’ rigorous imprisonment.
She appealed.
Wadsworth, for appellant.—The proceedings are highly irregular.The accused was brought before the Court on the 17th Juneon a warrant issued at the instance of the kankani. The complaintmade by him was not signed by him, as required by sections 148
a, 149 (1), and 150 (1). After the accused was brought,Mr. Smith, the present superintendent of the estate, was called andexamined. The Magistrate recorded:“ Case postponed for to-
morrow, as some questions have been raised which Mr. Marshall(complainant’s proctor) is not prepared to meet ”. This is irregularin summary cases. The Magistrate does not state what the ques-tions were, but from what follows it would seem that Mr. Marshallwas not ready, or had not sufficient materials, and wanted furtherevidence. It has been held "that a Police Magistrate has no powerto adjourn a summary trial to enable the complainant to makeinquiry and to find out further evidence against the accused. Such
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'ail adjournment,Withers, J., says, is notonly dangerous, buj> an1002.
illegal course topursue (Oomis v. Agoris,2 N. L. R. 180). The
next day, afterfurther examination of awitness, the Magistrate——
framed a charge “ to save misconception It ran thus: “ Thatyou did on the 25th February last quit the service of Mr. Bayley,the superintendent of Elston estate, without notice or reasonablecause, and thereby committed an offence punishable under section11 of Ordinance No. 11 of 1865. ” The charge, if not vague,certainly does not disclose an offence. It does not state inwhat capacity accused was employed under Mr. Bayley; itgives a wrong date of quitting—the accused is said to have leftthe estate in February, 1901; it does not state that accusedquitted " before the end of her term of service ”, as provided insection 11 of Ordinance No. 11 of 1865. Merely quitting servicewithout notice is no offence (Periyannan v. Nagamuttu, 4 8. C.
35). It must state that the accused quitted service before theend of her term of service. Where an offence is created by anOrdinance, the precise words of the Ordinance must be followed indescribing it. (Maclean v. Appan Kankani, 2 N. L. R. 59.) TheSupreme Court has no doubt, the power to correct or amend thecharge; but in a case like this, where the offence is not a crimeagainst the State, a general conviction on a bad charge should,not be set aside. Browne, A.J., said that “ the. purport of theprovisions contained in section 187 (1), (2), and (3), is to showthat the accused was apprised by the statement in either the sum-mons or warrant served on him, or the written charge read to him,of the precise accusation against him. This not having been done,the proceedings are entirely irregular”. (Mendis v. Fernando, 4
N.L. R. 104). Accused having pleaded not guilty, and therebeing no case for the prosecution, the Magistrate called witnesses.
It is true that under the Criminal Procedure Code the Magistratehas the power to call witnesses. But this is when the offenceis purely malum in se, not when the act is one made penal bystatute. Phear, C.J., said: “Where the criminality of the charge;by whichever party made involves nothing that as malum in se,but is the pure creature of the Ordinance limited to the objectof furnishing a ready means for enforcing contractual rightsbetween the parties, it need hardly be remarked, for it seems obvious,that it is especially incumbent on the criminal court before whichsuch case comes to take care that the complainant who seeks the'aid of the Criminal Law for his own advantage should by his plaintpledge himself to the precisely stated charge falling within the-terms of the Ordinance, and should clearly establish this charge byhis evidence. It is in no degree the duty of the Court to go out of
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1902.its way to help the prosecution. The prosecutor is in the position
July31 and of a plaintiff in a civil action.” (Lewis and Crawford on theAugust 1. Mas^er an(j Servants’ Ordinance, Preface.) The remarks of Phear,C.J., though made before the Criminal Procedure Code, showclearly the nature of such offences. Quitting service is only anoffence in relation to the employer. If the employer does notcome forward, if he does not call any witnesses to prove the offence,the Magistrate should not go out of his way to call conductors,kankanis, cooks, and servants of the employer himself. It is not anoffence Which the criminal court can take cognizance of. Thisprinciple is followed in Kandasamy v. Muttamma (2 N. L. R. 71).After the Court had finished examining the witnesses it called,the counsel for the accused cited authorities to show that evenif all the evidence were accepted, there was no offence committed.The Magistrate then recorded! “ Judgment for tomorrow ”.When ” to-morrow ” came, he called evidence to meet the pointsof law raised by the counsel. This is unfair and, as Bonser, G.J.,remarked in another case, it is a “ most lamentable miscarriage ofjustice.” The legislators must have had in view the loose ways ofthese Magistrates. As well might a Judge presiding at the sessionsadjourn a trial after the defending counsel had addressed the juryand shown that there was no case to go to the jury, and then callevidence to supply the proof which the law requires. By section190 the Magistrate was bound to forthwith record a verdict ofacquittal or conviction. Withers, J., held it was important that aMagistrate should observe the requirements of section 190 of theCriminal Procedure Code as to the duty of recording his verdict ofacquittal or guilty forthwith after hearing the evidence for the.prosecution and defence (Rodrigo v. Fernando, 4 N. L. R. 177).In a prosecution under the Labour Ordinance it is necessary thatthe. Magistrate should, in the event of a conviction, state in hisjudgment the capacity in which the accused was employed in the^complainant's service, so as to show that his quitting it withoutleave or reasonable cause constituted an offence under the LabourOrdinance (1 N. L. R. 323); but the judgment does not disclosethis fact.. It is therefore bad. So far, as to irregularities ofprocedure. As regards the facts of the case, it is alleged theaccused quitted the service of Mr. Bayley, superintendent ofElston estate, on the 25th February, 1901. Mr. Bayley left theIsland in January, 1902, and was succeeded by Mr. Smith. Mr.Bayley did not take any steps when he was on the estate. In April,1902, fourteen months after the accused had left the estate, thekankani of the estate brings the charge against the accused that■she quitted the service of his former master Mr. Bayley. On these
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facts important questions of law arise. In the first place, the 1902.Irnnltftni cannot be the complainant, nor can he prosecute the
accused. The offence is really a breach of a contract- between two
parties. The party injured is the only one who could prosecute.
Bonser, C.J., said: “ In my opinion the employer is the onlyperson who can properly prosecute for offences under the LabourOrdinance, because he is the only person injured. It is not like anassault or breach of the Queen’s peace, nor is it an offence whichconcerns any one but the parties themselves. It would be intolerablethat if A’s cook leaves him without notice, B, a complete strangerto both, should be allowed to institute a legal prosecution. No doubta kankani is not a complete stranger, and if he stated and provedthat he was instructed by the joint employer to set the law inmotion, possibly a Magistrate might be justified in issuing processon this complaint; but in that case the employer should bedescribed as the complainant, and thus made responsible for theproceedings ” ^Kandasamy v. Muttamma, 2 N. L. B. 71). Anotherimportant question which arises is whether Mr. Smith,the successor of Mr. Bayley, could authorize the prosecution ofa cooly who quitted the service of Mr. Bayley. Though thereis no proof of a contract between Mr. Bayley and the accused,let us assume that the contract was one of monthly service.
Seiction 25 of Ordinance No. 11 of 1865 deals with the transferof contract of service to a new proprietor or manager or super-intendent of an estate: “ If the estate upon which any agriculturalservant is employed under any contract to serve for a periodexceeding one month shall, during the pendency of such contract,become vested in or be transferred under the superintendence or
management of any other person,such contract and all the
rights and liabilities shall be transferred to the person to whomthe management of the said estate shall become transferred ”. TheMagistrate lost sight of this section when he said that Mr. Smith,having as much interest in the estate as Mr. Bayley, could set thelaw in motion. There is no dispute about the interest Air. Smithhas in the estate, because he does not know it himself, or who theproprietor ;is. But so far as the accused is concerned, Mr. Smithhad nothing to do with her. Her contract with Mr. Bayley was amonthly one, and this section only transfers the right when thecontract is a period exceeding one month. When the contract isa monthly one, the successor cannot exercise the contractualrights of his predecessor. The accused quitted the service of Mr.
Bayley when he was the superintendent. Mr. Smith came tenmonths afterwards. There was no contrast pending betweenMr. Bayley and the accused, and therefore Mr. Smith can in no
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1902. way be said to have, nor could he exercise, the contractual rightsJuly 31 and which ceased during the time of his predecessor. Under theAugtutl. Eng]ish LaWi the old Act {20 Geo. 2, ch. 19, § 2) requiring thecomplaint to justices to be made by “ any master, mistress, oremployer " was afterwards amended, when, .the inconvenience ofrequiring the master himself to prosecute was felt, by the additionof the words “ or by his, her, or their steward, manager, or agent ”,•by i6 Geo. A, ch. 25, § 4, and 4, Geo. 4 ch. 34, § 3, and of thewords ‘‘or by his counsel or attorney or other person authorizedin that behalf ” by II and 12 Viet., ch. 43, § 10. But our LabourOrdinance No. 11 of 1865 does not permit the intervention of anyagent. Therefore, the. prosecution must be by the employer himself.He must be the complainant. Mr. Smith has no power to authorizea prosecution. On these points the prosecution entirely fails.There is no contract proved between Mr. Bayley and the accused.The complainant charged the accused under a verbal contract ofhire and service for a month with a third person and with havingquitted his service. As Burnside, C.J., says; “ It wouuld seemself-evident that, before a person could be said to have broken evena verbal contract, it must be proved that there was a contract ”■{8 S. C. C. 91). It is not stated or proved when the contract beganor for how long. There is no evidence whatever that there was a■contract.
Van Langenberg, for respondent.—All the irregularities of pro-cedure complained of are cured by section 425 of the CriminalProcedure Code. In Kandaeamy v. Muttamma (2 N. L. R. 71)Bonser, C.J., simply held that the Court should be satisfied thatthe case instituted by the kankani was not for his own purposes,l>ut on the authority of his employer. This authority • was provedin the present case to come from Mr. Smith. [Grenier, A.J.—Who is the proprietor of the estate?] Mr. Smith was not sure.[Grenier, A.J.—We do . not know who the proprietor is;Mr. Bayley is gone, and Mr. Smith has taken his place. HasMr. Bayley authorized Mr. Smith to empower the kankani toprosecute?] There is no evidence on that point. [Grenier,A.J.—Has Mr. Bayley authorized the kankani to prosecute?]There is no evidence on that point also. There is nothing in theCriminal Procedure Cod.e to prevent the kankani from prosecuting[The counsel argued on the facts also.]
Cut. aiv. vult.
1st August, 1902. Grenier, A.J.—
The proceedings against the accused appear to have been initiatedby one Cadersa, head kankani of Elston, on the 17th April, 1902.•On that day Cadersa was affirmed, and his evidence was reduced
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to writing, and was to the effect that the accused, a female of thirty 1®®2,years, had left hi3 master’s service on the 25th February, 1901,without notice or reasonable cause; that she was a monthly paid
(ylfflWf K n.
servant, and had been paid up to 31st December, 1900. The a.J.Magistrate, thereupon, issued a warrant returnable on the 19thMay. It would be remarked at once that Cadersa made no mentionof who his master was, or that his master, whoever he was, hadauthorized him to institute this prosecution. Objection was takento thin information, which was reduced into writing by the Magis-trate, on the ground that it was not signed by Cadersa, as requiredby section 150 of the Criminal Procedure Code. The objection wassought to be met by the learned counsel for the respondent byreference to section 425. But, as I pointed out at the time, thatsection must not be made so elastic as to embrace a case of thiskind, where the objection raised is not merely a technical one, butone essentially of substance. I sustain .the objection. This, there-fore, was the first irregularity committed by the Magistrate, andafforded sufficient ground for quashing these proceedings.
On the 16th June, 1902—we are not directly concerned with whattranspired in the interval—we find this entry:“Complainant,
accused, and surety present; charge explained. She states: * I amnot guilty. I have no witnesses ”. What the charge was that- wasexplained to the appellant does not appear, because so far we havehad only the depositions of Cadersa, which I have, already referredto. At this stage, however, the surety who had gone bail for theappellant abandoned lier, and the appellant, being unable to findbail, was remanded until the 17th June, 1902. On that day‘Mr.
Marshall represented the complainant, and Mr. de Mel the appellant.
A witness, Edgar Smith, was affirmed, and gave the followingevidence:“I produce the check-roll, from which it appears that
the accused was a cooly on the estate, and left the estate on the25th February, 1901. I am superintendent of the estate now,namely, Elston. I assumed duties on or about the 12th Januarylast. Mr. Bavley was the superintendent at the time the accusedquitted service. He is now in England. He is now on leave ”.
Now, it is manifest on reading this evidence that Mr. Smith knewpersonally nothing as to the terms on which the accused was acooly on the estate, because the accused was on the estate nearlytwelve months before he assumed duties as superintendent, andhad left it on the 25th February, 1901. There is not a word inthe whole of this evidence to show that Mr.. Smith had everauthorized Cadersa—assuming that he was to be regarded as theappellant’s or Cadersa’s master—to institute this prosecution.
Possibly the omission may be due to inadvertence on the part of
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1902.
July 31 andAugust 1.
Gkenier,
A.J.
those responsible for the prosecution, but, for some reason whichdoes not appear quite clear, the Magistrate after hearing Mr. Smith’sevidence postponed the case for the next day, on the ground, as heputs it, “ that some questions have been raised which Mr. Marshallis not prepared to argue to-day What those questions were arenot stated, nor does it appear from the subsequent proceeding*that any legal argument was addressed to the Magistrate on anypoint whatever, or that any questions were discussed which wererelevant or irrelevant to this prosecution. This was the second,irregularity.
On the next day Air. Smith was again sworn, and deposed thatthe accused was paid up to the 31st December, 1900, and that thispayment was made before the end of the third week in January,1901. Thereafter, the Magistrate records as follows:“ To save
misconception as regards the charge, I now frame charge againstaccused as follows: ‘ That she did on the 25th February last quitthe service of Mr. Bayley, the superintendent of Elston estate,,without notice or reasonable cause, and thereby committed anoffence punishable under section 11 of Ordinance No. 11 oif 1865 ’ ”.
Now, I do not quite understand what the misconception wasthat the Magistrate alludes to, unless it be that the charge that heexplained to the appellant on the 16th June, 1902, was different-from the charge which he framed two days subsequently. How-ever that may be, it is perfectly plain that the charge upon whichthe Magistrate has convicted the appellant is radically bad, anda. conviction on such a charge would necessarily be illegal. In'a case reported in 4 S. C. C. 35. Chief Justice Cayley said, withreference to a plaint couched in almost the same tenns:“ What
the Ordinance makes an offence is quitting the service of anemployer without leave or reasonable cause before the end of theterm of service or previous warning ”, and he added the following:“ The ingenuity which framers of plaints in Police Court casesdisplay in finding terms and expressions differing from thoseused by the enactments upon which the charges are based is veryremarkable ”. The essence of, the offence, therefore, is thequitting the service of an employer (without leave or reasonablecause) before the end of the term of service or previous warning.
I shall preseutly deal with this charge on another ground, butI pass on for the present to what transpired after this charge hadbeen read .to the appellant and the appellant had pleaded notguilty. On the appellant’s proctor calling no defence, as it seem*to me, for obvious reasons, the Magistrate proceeded to call certainwitnesses, apparently at his own instance. Now, the evidence ofArthur Javasinha only served to establish the fact that he kept a
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pocket check-roll; that he knew the appellant; that her name waaMuttamma; and that she did not give notice, so for as he waaaware; and that she left about the middle of February, 1901. Thenext witness examined by the Magistrate was Cadersa Kankani,the same man who had instituted this prosecution, and this is theadditional evidence that he gave:“ The accused was in my gang..
I do not know if she gave notice; she did not give notice; if shehad given verbal notice she would have informed me; thesuperintendent would have informed me if she had given writtennotice. I do not know for certain who the proprietor of the estateis ”. Anything more indefinite and vague than the evidence ofthis witness I cannot conceive. I take it that the superintendentCadersa refers to in his evidence is Mr. Bayley, and not Mr. Smith;hut this much is certain, that we are unable to test the accuracy ofsuch statements as this witness has made by any information thatMr. Bayley would have been able to afford us on the question ofnotice. After the examination of this witness, the appellant’sproctor appears to have quoted some authorities, and judgment wasreserved for the next day. Before delivering judgment the nextday, Mr. Smith was sworn again, and, with what object I do notknow, it was elicited that he was not sure who the proprietors of-the estate were. He mentioned the names of Mr. Haines andMrs. Hayes in a dubious way, but appeared certain that Messrs.■George Steuart & Co. were the agents, and it is remarkable that itwas only now for the first time that the authority of Cadersa to pro-secute was disclosed by Mr. Smith, for he says at the end of hisexamination:“I authorized Cadersa Kankani to prosecute the
accused ”. Then the Magistrate proceeded to deliver judgment.In this judgment he does not specify, as he ought to have done,what was the precise nature of the offence that he convicted theappellant of. A day after delivering this judgment he addeda rider to it, setting forth his reasons for thinking that the “ bur-den of proving the giving of notice or' reasonable cause wasshifted to the accused ”.
It is unnecessary for me on this appeal to deal with any of thepoints discussed in the judgment, save that which relates to theprosecution by Cadersa of the appellant. Presumably the appel-lant’s employer was Mr. Bayley. Mr. Smith now holds the officeof superintendent, and it cannot be said with any reason thatthere was any contract of service entered into by the appellantwith Mr. Smith. On the other hand, the very existence ofMuttamma, the appellant, must have been unknown to Mr. Smithuntil Cadersa Kankani either revealed it to Mr. Smith, or Mr.Jayasinha, the field conductor, produced his pocket check-roll and
1903,
July 31 andAugust 1.
Grenebb,
A.J.
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190?. told Mr. Smith that there was a woman by the name of MuttammaJtdy^31and had worked in Mohamado Kankani's gang, and had left
about the middle of February, 1901. Mr. Smith’s participation,therefore, in this prosecution was clearly an involuntary one, andany part he took in it was probably due to the representationmade to him by Cadersa. In the course of the argument beforeme it was candidly admitted by the counsel for the respondentthat there was absolutely no evidence that Mr. Bayley had autho-rized Mr. Smith to empower Cadersa to institute this prosecution.It would be a most dangerous precedent to allow men in theposition of kankanies to charge labourers on the estate withoffences under the Labour Ordinance, without authority from thepersons who directly engaged their services. I can understandcases where there can be no question as to the bond fides of aprosecution by a kankani at the instance of his master, but in thiscase I am far from satisfied that Cadersa was acting either in theinterests of his master or in the interests of the proprietors of theestate, whoever he or they may be, in the action he took, in thismatter, especially in view of the fact that his authority to prosecuteonly appeared just before the Magistrate proceeded to deliverjudgment. In a case to which I was referred by the counsel forthe appellant, Chief Justice Bonser was strongly of opinion thatthe employer is the only person who can properly prosecute foroffences under the Labour Ordinance because he is the only personinjured. In the course of his judgment the Chief Justice says“ that it would be intolerable that if A’s cook leaves him withoutnotice, B, a complete stranger to both, should be allowed to institutea prosecution. No doubt a kankani is not a complete stranger,and if he stated and proved that he was instructed by the jointemployer to set the law in motion, possibly a Magistrate mightbe justified in issuing process on his complaint ”, and he addsthese significant words: “ but in that case the employer should bedescribed as the complainant and thus made responsible for theproceedings ”. It is difficult to say in this case who is responsiblefor the proceedings in it, as they were. initiated on the 17th May,1902. It was certainly not Mr. Bayley.
The conviction must be set aside and the appellant acquitted.
August
BBNIB
A.J.