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Short title.
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1.This Ordinance may be cited as the Estate Labour (Indian) Ordinance.
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Construction.
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2.This Ordinance shall, so far as is consistent with the tenor thereof, be read and construed as one with the Service Contracts Ordinance.
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Interpretation.
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3.For the purposes of this Ordinance-
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” check-roll” means the record kept on an estate showing the work done by labourers employed under a monthly contract of service with the estate, the wages earned by them, the advances made, and the monthly balance of wages due to them;
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” employer” means the chief person for the time being in charge of an estate, and includes the superintendent;
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” estate” means any land in which labourers are employed, and of which ten acres or more are actually cultivated ;
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” labourer” means any labourer and kangany (commonly known as Indian coolies) whose name is borne on an estate register, and includes the Muslims commonly known as “Tulicans”;
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” register ” means the book required to be kept by section 22;
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“spouse”, when used with reference to a labourer, includes the person regarded according to custom as the wife of a male labourer or the husband of a female labourer;
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“wages” means all sums which may be due to a labourer for and in respect of the work and labour done by him on an estate and shall include sums commonly known as kangany’s ‘ head ‘ or ‘ pence ‘ money.
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Certain provisions of the Service Contracts Ordinance extended to labourers and employers and to acts and defaults of third parties in respect of or in relation to them.
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4. Except as in this Ordinance otherwise expressly provided, all the provisions, regulations, pains, penalties, forfeitures, and abatements enacted in the Service Contracts Ordinance, so far as they are applicable to monthly servants or their employers, shall extend, and be construed, deemed, and adjudged to extend, to labourers and employers under this ordinance ; and every act or default, by whomsoever done or committed, which is made punishable by the Service Contracts Ordinance, if made or committed in respect of, or in relation to, monthly servants or their employers, shall in the like manner be punishable if done or committed in respect of, or in relation to, labourers and employers under this Ordinance.
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Verbal and implied contracts of service.
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5. Every labourer who shall enter into a verbal contract with the employer for the performance of work not usually done by the day or by the job or by the journey, or whose name shall be entered in the check-roll of an estate and who shall have received from the employer any advance of wages in respect of which the employer is authorized, by or under the provisions of any other written law, to make a deduction from the wages of the labourer, shall, unless he has otherwise expressly stipulated, and notwithstanding that his wages shall be payable at a daily rate, be deemed and taken in law to have entered into a contract of hire and service for the period of one month, to be renewable from month to month; and every such contract shall be deemed and taken in law to be so renewed unless one month’s previous notice be given by either party to the other of his intention to determine the same at the expiry of one month from the day of giving such notice.
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Payment of wages
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6.
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(1) It shall be the duty of every employer to pay all wages agreed upon or earned by the labourers in his employment in any month on or before the tenth day of the following month.
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(2) Where wages are payable at a daily rate, the monthly wages shall be computed according to the number of days on which the labourer was able and willing to work and actually demanded employment, whether the employer was or was not able to provide him with work :
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Provided that an employer shall not be bound to provide for any labourer more than six days’ work in the week.
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(3) When the contract of service is determined by one month’s previous notice or warning by the labourer to the employer or by the employer to the labourer, or when any such contract is determined by the employer in accordance with the provisions of section 23 (1), all wages due to the labourer for his period of service shall be paid in full to him by the employer on the day when such contract is so determined as aforesaid.
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(4) In computing the amount of wages due to a labourer for any period of service, the labourer shall be debited, in accordance with the provisions of any other written law in force in that behalf, with any deduction, authorized to be made from his wages by or under the provisions of such other law.
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(5) The wages of a labourer shall not be deemed to have been duly paid, as required by this section, unless the full amount thereof, subject only to the deductions allowed by subsection (4), has been paid directly to the labourer himself.
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(6) Where, owing to the absence of any labourer or to any other unavoidable cause, it has not been possible to pay him his wages within the time limited by this section, the employer may retain the sum due to such labourer and shall thereafter pay it to him at the earliest possible opportunity.
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(7) Any employer who fails to pay the wages of any labourers in his employment within the period limited by subsection (1) or subsection (3), shall be guilty of an offence, and shall be liable on conviction to a fine which may extend to fifty rupees on a first conviction, and to two hundred rupees on a second or subsequent conviction. If any fine imposed under this section is not paid within twenty-one days of the date when the same is imposed, the Government Agent* may recover the amount thereof in the manner provided in Chapter V of the Medical Wants Ordinance.
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Written contracts.
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7. No contract of service entered into with a labourer for any period of time longer than one month shall be valid in law unless the same is executed in all respects in strict accordance with the requirements of the Service Contracts Ordinance as to written contracts ; and all written contracts between labourers and employers shall be subject to, and governed by, the provisions of the said Ordinance relating to written contracts.
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Wages made a first charge on estate.
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8. Labourers employed on an estate shall, anything in the Prescription Ordinance to the contrary notwithstanding have in respect of their wages, whatever the period for which such wages may be due, but not exceeding the sum of forty rupees earned by each labourer, a first charge upon such estate, and such first charge shall have priority over all claims for rents dues, or otherwise by any lessors, mortgagees, judgment, execution, or other creditors, or by any other persons whatever ; and such first charge may be enforced by suit or by claim if instituted or preferred within three months of the last day of the period in respect of which such wages are claimed.
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Wages may be sued for in Primary Court whatever The amount.
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9. The wages due to any labourer or labourers, whatever may be the amount claimed, shall be sued for in a Primary Court having in other respects jurisdiction in that behalf.
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Labourers may sue jointly in one suit.
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10. It shall be lawful for one or more labourers employed on such estate to institute one suit to recover the wages which may be due not only to him or them, but also to any other labourer or labourers employed on the same estate whose name or names may appear in the plaint, provided that the court in which the suit is instituted is satisfied, after due inquiry, that the labourer or labourers suing is or are authorized to sue for and on behalf of the other or others so named as aforesaid, and it shall be lawful for the Commissioner of Labour also or for any other person authorized by him in writing for the purpose to institute in like manner on behalf of one or more labourers employed on an estate a similar suit to recover any wages which may be due to them.
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Proprietor of estate to be party defendant.
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11. In any suit instituted under this Ordinance it shall be sufficient to designate the defendant as the ” proprietor of the estate”, specifying the name of the estate on which the labourer had been employed, without naming the proprietor or proprietors thereof.
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Party sued may claim set-off.
[ 59, 27 of 1941.]
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[[ 4, 41 of 1943.]
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12. The party sued or his representative, or any other person allowed by the court to intervene in such suit, shall be entitled to a set-off or counter-claim in respect of any deduction authorized to be made by or under the provisions of any other written law from the wages for which the labourer or labourers may be suing.
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Notwithstanding anything contained in the Civil Procedure Code or any written law (other than this Ordinance), such party or his representative or such other person shall not be entitled in such suit to a set-off or counter-claim in respect of any matters other than those specified in the preceding provisions of this section, but shall not be precluded from maintaining a separate action in respect of any matter not so specified,
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Right of mortgagee
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13. It shall be lawful for a mortgagee of an estate to pay and discharge the first charge created by this Ordinance in respect of such estate in favour of the labourers employed thereon ; and upon such payment he shall be entitled to add the amount thereof to the sum due upon his mortgage, and the amount so added shall be secured by the mortgage held by him.
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Proprietor may obtain judgment in same suit against others who have actually employed the labourers.
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14. When the proprietor of an estate is sued under this Ordinance, and he shall by proof adduced satisfy the court that he did not by himself or by his agent or agents employ all or any of the labourers who are suing him, but that they or any of them were employed on such estate by some other person as trustee, lessee, or mortgagee in possession, he shall be entitled, upon application by him made for that purpose, to have such other person made a party defendant in the same suit at any time before execution is levied, provided that such other person shall have had reasonable notice of such application, and shall have failed to show cause why he should not be joined in the suit. And the court shall, if satisfied that such other person was primarily liable to pay the amount of wages sued for wholly or in part, and that the same has since the institution of the suit been paid and satisfied by such proprietor, enter a separate judgment therefor as between the proprietor and such other person with such reasonable costs as it may think fit, and enforce such judgment against such other person by a writ of execution:
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Provided, however, that no proceedings had as between such other person and such proprietor as aforesaid shall be permitted in any way to delay the progress of the suit as between the labourers and such proprietor.
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Procedure.
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15. The rules and orders in Schedule A shall apply to suits instituted under this Ordinance ; and upon any matter not specially provided therein, including the payment of costs, the general rules and orders for Primary Courts shall be followed in so far as the same may be applicable.
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Returns.
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16. The Commissioner of Labour may, by Notification published in the Gazette, specify what returns regarding the numbers and conditions of labourers shall be made by employers, periodically or otherwise, and to what public officer such returns shall be made. It shall be the duty of every employer to comply with the provisions of such Notification.
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Offences. Penalty. Evidence.
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17. Any employer who shall refuse or neglect to make any returns by this Ordinance required to be made, in the form and on the days specified, shall be guilty of an offence, and shall be liable on conviction to a fine not exceeding one hundred rupees ; and the production of a certificate under the hand of the Commissioner of Labour, to the effect that no returns have been received by him from the person charged, shall in all judicial proceedings be prima facie evidence of such person having refused or neglected to make such returns, as the case may be.
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Money paid or promised for inducing labourer to quit service not recoverable.
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18. Any money which may have been paid or which may be promised to be paid for the purpose of inducing a labourer or attempting to induce a labourer to quit service shall not be recoverable in law.
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Immunity of labourers from arrest on civil process.
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19. From and after the commencement of this Ordinance no kangany, subordinate kangany, or labourer shall be liable to arrest under the provisions of the Civil Procedure Code, in execution of a decree for money.
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Notice to determine contract of service.
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20. A notice or warning of the intention of any labourer to determine his contract of service, if given by any other person on behalf of the labourer, shall not begin to run or be in any way effectual in law, unless and until the labourer has personally or in writing signified to his employer his desire to determine his contract of service.
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Declarations that labourers have been duly paid.
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21.
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(1) It shall be the duty of every employer to forward to the Commissioner of Labour in every month a declaration under his hand that the wages of the labourers in his employment have been duly paid as required by this Ordinance.
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(2) Every such declaration shall be forwarded so as to reach the Commissioner of Labour not later than the fifteenth day of the month following the month on which such wages were earned.
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(3) Where an employer has given notice in writing to the Commissioner of Labour with regard to any estate under his charge that the duty of forwarding the declaration required by this section has been en trusted to an assistant superintendent, such assistant superintendent shall thereupon be bound to comply with the requirements of this section.
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(4) Any employer, or any assistant superintendent who is bound as aforesaid to comply with the requirements of this section, who fails in any month to furnish the declaration required by this section within the prescribed time, shall be guilty of an offence, and shall be liable, on a first conviction, to a fine which may extend to twenty rupees, and, on a second or subsequent conviction, to a fine which may extend to one hundred rupees.
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(5) Any employer or assistant superintendent bound as aforesaid who knowingly furnishes a declaration which is false or incorrect in any material particular shall be guilty of an offence, and shall be liable on conviction to imprisonment of either description which may extend to three months, or to a fine not exceeding five hundred rupees, or to both.
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Duty of employer to prepare and keep a complete register of labourers.
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22.
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(1) It shall be the duty of every employer to prepare and keep up to date a complete register of all labourers employed on his estate, whether borne on the check-roll or working on any form of contract. Such register shall be as nearly as material in form I in Schedule B.
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(2) Every employer shall forthwith enter on the register the name of any labourer who shall be taken into employment on his estate, whether on monthly contract of service or any other form of contract. He shall also, whenever a labourer dies or quits service, record the fact and the date thereof in the register.
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(3) Any employer who fails to comply with the requirements of subsection (2) shall be guilty of an offence, and shall be liable on conviction to a fine not exceeding twenty rupees.
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Duty of employer to issue discharge certificate and penalty for default.
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23.
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(1) At the time when any labourer lawfully quits the service of any employer, it shall be the duty of that employer to issue to that labourer a discharge certificate substantially in form II in Schedule B, and, where at such time the spouse or a child of such labourer is also a labourer under a contract of service with that employer, it shall be the duty of the employer, subject as hereinafter provided, to determine such contract and to issue a like certificate to such spouse or child:
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Provided that where such spouse or child wishes to continue in service under such contract and produces to the employer a joint statement signed by both husband and wife to that effect, nothing in the preceding provisions of this subsection shall be deemed to require the employer to determine such contract or to issue a discharge certificate to such spouse or child.
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(2)Any employer who refuses or neglects to give a discharge certificate to any labourer as required by this section shall be guilty of an offence, and shall be liable on conviction thereof to a fine which may extend to one hundred rupees, and a further fine not exceeding five rupees for every day during which such default shall continue.
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(3) In this section, “child” means a minor and includes an adopted or illegitimate child who is minor.
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Separate room to be provided for each married couple living in the “lines” of an estate.
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24.
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(1) Where, on any estate, housing accommodation is provided by the employer for any labourer who is living with his or her spouse on that estate, the employer shall provide a separate room for such labourer and his or her spouse and shall not compel them to share such room with any person other than a child of such labourer or of his or her spouse.
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In this subsection, ” child” means a child of or under the age of twelve years and includes an adopted child or an illegitimate child of or under that age.
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(2) An employer who acts in contravention of the provisions of subsection (1) shall be guilty of an offence and shall be liable to a fine not exceeding one hundred rupees.
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Forms to be sent to labourer’s employer by Emigration Commissioner
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25.
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(1) The Emigration Commissioner or other officer authorized by the Commissioner of Labour[1] shall, when a labourer leaves Mandapam Camp or such other camp as may be notified for this purpose in the Gazette by the Minister[1], for Ceylon, fill in the ” Personal Particulars ” and ” Immigration Certificate ” on form II in Schedule B, and send the form to the labourer’s employer in Ceylon, who shall preserve the form until the labourer returns to India or is discharged.
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(2) Whenever a labourer is about to return to India, his employer shall cause to be filled in the ” Identification Certificate” and also, if they have not been previously filled in, the “Personal Particulars” on form II in Schedule B, and shall deliver the form to the labourer.
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(3) Whenever a labourer quits the service of an employer, having given or received the notice or warning required by law, the employer shall cause to be filled in the ” Discharge Certificate ” and also, if they have not been previously filled in, the ” Personal Particulars” on form II in Schedule B, and shall deliver the form to the labourer.
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(4) An employer who refuses or neglects to comply with any of the provisions of this section shall on conviction by a Magistrate be liable for each offence to a fine not exceeding fifty rupees.
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Offences in relation to discharge tickets and registers of labourers.
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26. Any person who-
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(a) knowingly prepares or issues a discharge ticket which is false in any material particular ; or
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(b) fraudulently makes use of a genuine discharge ticket; or
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(c) knowingly makes any false entry, alteration in or addition to the register required to be kept by this Ordinance; or
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(d) not being an employer as defined in section 3 of this Ordinance issues a discharge ticket in respect of any labourer,
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shall be guilty of an offence, and shall be liable on conviction thereof to a fine which may extend to one thousand rupees, or to imprisonment of either description for a term not exceeding six months, or to both.
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Power to alter forms.
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27. The Commissioner of Labour[1] may from time to time make such alterations as he may deem requisite in any of the forms prescribed in Schedule B, or may prescribe new forms to be used in substitution for any of such forms.
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Commissioner or person authorized by him may institute proceedings.
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28. The Commissioner of Labour or any officer generally or specially authorized by him in writing may institute proceedings in respect of any offence against the Service Contracts Ordinance, the Indian Immigrant Labour Ordinance or this Ordinance
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Schedules
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