028-NLR-NLR-V-13-HORTIN-v.-MOOKEN.pdf
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Present; The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
HORTIN t>. MOOKEN.
Pi C., Pawwila, 19,843.
Notice of intention to determine contract of service—Letter by proctor—Delivered by cooly inperson^ “ Personally signify ”—“ Em-
ployer ”—Ordinance No. 9 of 1909, $, 90,
A cooly who, in the absence of the Superintendent, delivered inperson to the Assistant Superintendent, who was the chief personin charge of the estate during the Superintendent's absence, a letterwritten and signed by bis proctor giving notice of his intention todetermine his contract of service, was held to have 11 personallysignified '* his intention within the moaning of section 20 of Ordi-nance No. 9 of 1909.
T
HE facts of the case are fully set out in the judgments. Thecase was first argued before Grenier J., who referred the case
to a Bench of two Judges.
H. A, Jayewardene, for the accused, appellant.—The noticewritten and signed by the proctor is notice by the cooly himself,and not by 44 any other person ” on behalf of the cooly. Even ifthe notice be deemed to have been given by some 44 other person ” onbehalf of the cooly, the cooly has in this case'4' personally signified ”
May 2,19J0.
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May 2,1910 his intention by delivering the proctor’s letter in person to Mr.
Bortin v. Bamsten. In Lyall v. Narayanan1 a letter sent by post was heldMvoken to be a sufficient notice. [Hutchinson. C.J.: In that case the noticewas not sent by “ any other person. ”J Here the letter was deliveredin person. [Hutchinson C.J.: Was it delivered to the “ em-ployer ”?'] The Superintendent was absent, and Mr. Bamsten, towhom the letter was delivered, was in charge of the estate duringthe Superintendent’s absence. He was therefore an “ employer ”under section 3 of Ordinance No. 13 of 1889. Counsel also referredto The Queen v. Muttucarpen Chetty,2 Bcowcroft v. MuttuaamyKangany2
A. St. V. Jayewardene, for the respondent.—Mr. Bamsten was anAssistant Superintendent. The definition of the term “ employer "in Ordinance No. 13 of 1889 only includes a Superintendent and notan “ Assistant Superintendent “ Employer ” does not includeany person who happens to supervise the work of the estate duringa temporary absence of the Superintendent. A kangany was heldnot to be an “ employer ” in Kandasamy v. Muttamma* See also143 P. C., Kalutara, 13,342.® In this case the Magistrate doesnot hold that the appellant personally delivered the letter toMr. Bamsten.
Cur. adv. vult.
May 2, 1910. Hutchinson C.J.—
This is an appeal against the conviction of the appellant on a 'charge that, being an agricultural servant under a verbal contractof hire and service renewable from month to month, he quitted theservices of his employer, J. P. Hortin, without leave or reasonablecause, an offence under section 11 of Ordinance No. 11 of 1865.
The appellant was a cooly on Selvakande estate, of which Mr.Hortin was Superintendent. At the beginning of December lastMr. Hortin was at Kandy attending the Supreme Court as a juror.There is no evidence how long he was absent, but he returned onDecember 8. The Assistant Superintendent was Mr. Bamsten;he resided on the estate, and his. ordinary duty was to keep thecheck roll and supervise the work of the coolies; he had not the'rightto pay off coolies. During Mr. Hortin’s absence he opened lettersaddressed to the Superintendent.
On December 6 the appellant got his proctor to write out anotice for him addressed to the Superintendent in these words:
‘‘ I am instructed by Mooken Waddamalli. " (the appellant), “ ofthe above estate, to give you notice that he will, one month afterreceipt hereof, quit your service.” This was signed by the Proctor,but not by the appellant. The appellant took it himself and
{1910) 13 N. L. R. 28.* (1887) 8 S. O. 0. 86.
(1886) 8 S. O. C. 53..* (1896) 2 N. L. R. 71.
• 8. C. Min., March 22, 1910.
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handed it to Mr. Bamsten on December 7, and in pursuance of ithe quitted the services on January 8. The appellant says thatwhen he gave Mr. Bamsten the notice he told him that he wouldleave on January 8; Mr. .Bamsten denies this; the Magistratedoes not say which of them he believed. Mr. Bamsten handed thenotice to Mr. Hortin on his return on December 8.
It is enacted by section 20 of Ordinance No. 9 of 1909 that '* Anotice or warning of the intention of any labourer to determine hiscontract of service, if given by any other' person on behalf of thelabourer, shall not begin to run or be in any way effectual in law,unless and until the labourer has personally signified to his employerhis desire to determine his contract of service/1' It was thereforenecessary for the appellant personally to signify to his employer hisdesire to determine the contract. If Mr. Hortin was his employer,he did not do this. If the servant causes a written notice signed byhimself—signature including, in the case of an illiterate person, hismark—to be delivered to his employer, that is enough; otherwise hemust personally, i.e., himself, and not through an agent, signify hisintention to his employer. If Mr. Bamsten was fcot the employeron December 7, he was merely an agent to hand the notice to theSuperintendent,. and that would not do. The appellant's counsel,however, contends that on December 7 Mr. Bamsten was the em-ployer. Section 3 of Ordinance No. 13 of 1889 enacts that for thepurposes of that Ordinance (with which the Ordinance of 1909 isincorporated) “ employer means the chief person for the time beingin charge of an estate, and includes the Superintendent. ” TheMagistrate did not consider this point, and there is no evidence howlong Mr. Hortin was absent, beyond his own statement that inDecember he had to attend the Supreme Court at Kandy as a juror,and that he returned on the 8th; and there is no direct evidencethat the Assistant Superintendent was left in charge of the estateduring his absence. I think that on the evidence the Magistrateought to have found that Mr. Bamsten was on December 7 the chiefperson in charge of the estate, and was therefore the “ employer.And the delivery by the servant personally to his employer of awritten notice, such as in this case, was a personal signification ofhis desire to determine the contract.
If I had thought that the conviction must be affirmed I shouldhave considered that the offence was a purely technical one, forwhich only a mere nominal penalty ought to have been inflicted.
I would set aside the conviction.
Wood Benton J.—
Our decision in this case will depend on the answers which wegive to the three following questions:First, is the proctor's letter
sent to the respondent on behalf of the accused-appellant intimating
May 2,1910
Hutchinson
O.J.
Hortin v,Mooken
( no )May 2,19X0 his intention to terminate his contract of service a letter by the
accused-appellant himself, or one by some 44 other person on hisbehalf, ” within the meaning of section 20 of the Indian Coolies*Ordinance, 1909 (No. 9 of 1909)? In the second place, if it is aletter by an agent on behalf of the accused-appellant within .themeaning of that section, has the accused-appellant “personallysignified his desire to determine his contract of service “ as requiredby section 20? And in the last place, if so, was such personalsignification made to his “ employer ’’ within the meaning of section20 of Ordinance No. 9 of 1909 and section 3 of Ordinance No. 13of 1889?
In regard to the first of these points, 1 adhere to the view whichI indicated, without expressly deciding the question, in the case ofLyall v. Narayanan,1 I hold that a letter written by a proctor in thecooly’s name intimating to his employer his intention to leave theestate is a notice given not by the cooly himself, but by an agenton his behalf, and that, therefore, under section 20 of the Ordinanceof 1909, it does not begin to run or to be in any way effectual inlaw, unless and until the cooly has “ personally signified ” his desireto terminate his contract of service. I come now to the moredifficult question as to whether or not the accused-appellant“ personally signified ” his desire to leave the respondent’s servicein a sense that will satisfy section 20 of the Ordinance of 1909.It would have been, I should have thought, a comparatively simplematter for the Legislature to have found words that would havemade its meaning on this point clear, and I am tempted to thinkthat the terms “ personally signified ” furnish a fresh illustrationof a practice not uncommon in the evolution of statute law on pointsas to which there is a difference of opinion among the authors ofthe enactment. Vague language is used, and each of the conflictingsections of opinion acquiesces in its retention in the hope that itsown particular interpretation will receive the ultimate imprimaturof the courts of law. But we have to construe the words inquestion as we find them, and without attempting or desiring tolay down any exhaustive definition of either “ personally “ or14 signified ”, I think that the former, roughly speaking, meansproceeding from the cooly himself, as distinguished from the act ofanother person on his behalf, referred to in the earlier part of thesection, and that it should not be restricted to express communi-cations, whether written or verbal, but would be satisfied by anymode of communication shown by the evidence to have clearlybrought home the cooly’s desire to leave to the mind of hisemployer.
I think that the evidence in the present case satisfies this require-ment, if Mr. Ramsten, to whom the communication was made, wasthe appellant’s “ employer ’’ within the meaning of the statute. The
1 (1910) 13 N. L. JR. 28, 2 Cur. L. R. 55.
WoodRenton J.
Hortinv.Mooken '
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appellant himself states that he handed to Mr. Bamsten the proctor’s May g, 1910letter above referred to, and that in doing so he told him of wi>oDhis own accord that he would leave the estate on January 8, 1910. Kknton J.The proctor’s letter was dated December 6, and i.t was handedLL
to Mr. Bamsten on December 7, 1909.Mr. Bamsten admits the Mookendelivery of the letter, but says that the. appellant said nothing whenhe handed it to him, and the learned Police Magistrate does notinform us whether he accepted the evidence of the appellant or therecollection of Mr. Bamsten on this point. I will take it, however,that no verbal communication was made, and that the evidencemerely shows that the proctor’s letter of notice was handed to Mr.
Bamsten by the appellant, that Mr. Bamsten became aware of andaoted upon its contents, and that the appellant actually left theestate on the expiry of the month’s notice, which it contained.
1 think that under these circumstances, assuming that Mr. Bam-sten was the *' employer ” of the appellant, the latter “ personallysignified ” to him his desire to determine his contract of service withinthe meaning of section 20 of the Ordinance of 1909. Bor the purposeof the decision of the present case, we must take the definition of
employer ” in section 3 of Ordinance No. 13 of 1889. As definedin that section, it means “ the chief person in charge of an estatefor the time being.” Here, again, I will not attempt any generalenumeration of the classes of persons who would fall within therange of that clause. Each case must be decided on its own merits.
It is here proved that Mr. Bamsten, to whom the notice was in factgiven, is the Assistant Superintendent of Selvakande estate; that atthe date of the delivery of the notice, Mr. Hortin, the Superinten-dent, was absent on jury service in Kandy; and that Mr. Bamstenbelieved himself to be entitled to open, and, to some extent, to dealwith the Superintendent’s letters during Mr. Hortin’s absence.
I think that these circumstances constitute prima facie proofthat he was the chief person in charge of the estate for the time beingat that date. Mr. Hortin in his evidence said that the AssistantSuperintendent had no right to accept notices from coolies, andthat his general duties were to keep the check roll, to supervise thework of idie coolies, and to pay them when asked by the Superinten-dent to do so. There is nothing, however, to show that the appellantwas aware of any of the limitations of Mr. Ramsten’s authority towhich the Superintendent refers. Moreover, section 20 of Ordi-nance No. 9 of 1909 does not say that the notice must be given, ifnot to the Superintendent himself, to some person authorized bythe Superintendent to receive such notices. It is sufficient if thefacts show that the person to whom the notice was given was " thechief person in charge of the estate for the time being. ” In myopinion, the evidence in the present case establishes that factaffirmatively prima facie, and it has rot been rebutted by anyevidence on the part of the respondent.
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May Z, J910
WoodRenton J.
Hortin v.Mooken
I would set aside the conviction and sentence, and direct theacquittal of the accused-appellant. I may add that, even if I hadthought that a technical offence had been established against theappellant, I should not have imposed such a substantial penalty asten rupees. A line of one ceDt would have been, I think, sufficientpunishment, in view of the entire absence of any suggestion ofbad faith on the appellant’s part in giving notice to the AssistantSuperintendent.
Appeal allowed.
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