( 9 )
Present: Wood Renton A.C.J.
JAYAWEERA u. SIMON.
786—P. C. Balapitiya, 37,554.
Labour Ordnance, No. JU of 1866—Toddy drawer—Is he a servant t
There isnothing in the nature ofthe occupation ofatoddy
drawer toprevent him from being aservantwithin themeaning*
of the Ordinance No. II of 1865. Whether he is such a servantor not depends on the facts of each particular case.
A person who was engaged as a toddy drawer on a written contract rby which it was agreed that he should receive a certain share ofthe profitsby way of wages and bepaid inaddition Rs.6 per
mensem assubsistence money, was heldto be aM servant.**
fJlHE facts appear from the judgment.
A. St. V. Jayewardene, for the accused, appellant.—The accused,was engaged on a written contract as a toddy drawer. He was not;paid any fixed salary. He was to receive a share of the profits,,and to get Rs. 6 per mensem as subsistence allowance. That was:practically money advanced out of the profits, to which he wasentitled. A person under a contract of this character cannot be
* (1908) 11 N. L. R. 348*1 Bed. 146.
( 10 )
t»lBi said to be a servant. Counsel cited Wiakremesinghe v. Fernando;1Joyoweera Bodrigo v. Mel;1 P. C. Matara, 72,220;8 P. C. Mullaittivu, 7,851; 4e>.Simon 857—P. C. Kalutara; 5 P. C. Balapitiya, 16,288. 6
J. 8. Jayewardene, for the respondent.—It has been held by theSupreme Court in some of the cases cited that a toddy drawer is aservant. The mere fact that the toddy drawer is paid other thana fixed sum for his services does not affect the question whetherhe is a servant or not. Counsel cited Caduruvel v. Mishin,7- Blissv. Petera,* JonMaas v. Muttusamy9
Cv,r. adv. vult.
November 11, 1913. Wood Renton A.C.J.—
The accused-appellant was charged in the Police Court of Bala-pitiya; under section 11 of Ordinance No. 11 of 1865, with neglect ofwork, without leave or reasonable cause, from April 26 last onwards.The learned Police Magistrate convicted him, and sentenced him tosix weeks’ rigorous imprisonment. The accused was engaged bythe complainant as a toddy drawer under a written agreement. Hereceived an advance from the complainant, and then, while hisoriginal contract was still running, entered into another and similarcontract elsewhere. He says that he" brought back to the com-plainant the amount of his advance to induce him to rescind thecontract. But this the complainant denies. The accused, afterobtaining the .advance, continuously absented himself from work.He excused his absence on the day in question by producing a.medical certificate to the effect that he had been ill at the end ofApril and beginning of May, and that during that period he couldnot have done work as a toddy drawer. The learned Police Magis-trate did not regard the medical evidence on this point as satis-factory, and it does not show that the accused was unable to go to•the estate, at any rate at a later period, while his original contractof service was still in force. On the evidence, I see no reason tointerfere with .the decision under appeal. It is contended, however,that a toddy" drawer under a contract of service of this character isnot a " servant ” within the meaning of Ordinance No. 11 of 1865.It was held by the Supreme Court in P. C. Matara, 72,220,3 that atoddy drawer might be a “ servant ” within the meaning of Ordi-nance No. 11 of 1865. In Wickremesinghe v. Fernando 1 Lawrie J.held that a toddy drawer, if engaged as a monthly servant, is liableunder the section under which the present charge is laid. InP. C. Mullaittivu, 7,851,4 the Full Court held that' where, under an^agreement, the defendant was to be compensated for his labour by
* (1898) 1 Tomb. 55.
> (1895) 1N.L.R. 91.
(1873) 2 Oren. 94.
(1872) 1 Oren. 16.
5 S. C. Min., Sept. 7,1896.
4 S. G. Min., Nov. 30,1897.
7(1897) 7 Tomb. 10.
8(1912) 1 C. A. C. 80.
9 (1913) 16 N. L. R. 214.
( 11 )
a share of the profits of a certain fishery, and it was expresslystipulated that for any negligence. on his part “ the proprietormight bring an action in the Court, ” no criminal prosecution couldbe maintained against the defendant under the penal provisions ofOrdinance No. 11 of 1865. The ratio decidendi in that case, however,clearly was that the contract had provided the only remedy open tothe employer. The only rule to be deduced from the decisions, inmy opinion, is this, .that there, is nothing in the nature of theoccupation of a toddjy drawer to prevent him from being a “ servant ”within the meaning of Ordinance No. 11 of 1865. Whether he issuch a “ servant ” or not depends on the facts of eaoh particularcase. The accused here was engaged under a written contract. Hewas to receive a certain share in the profits. But, on the other hand,that share is spoken of as his “ wages, ” and, in addition to that, hewas to be paid a sum of Bs. 6 a month as subsistence money. Hewas in no sense in the position of an independent contractor, and thecontract gave the complainant no remedy against him for anybreach of its provisions. In these circumstances, I see no reasonwhy he should not have been held to be. a “ servant ” within themeaning of the Ordinance here in question.^
The appeal is dismissed.
JAYAWEERA v. SIMON