056-NLR-NLR-V-16-JONKLAAS-v.-MUTTUSAMY.pdf
f 214 )
1913.
Present: Lascelles C.J.
JONKLAAS 1?. MUTTUSAMY.
141—P. 0. Regatta, 16,986.
Labour Ordinance, No. 11 of 1865, ss. 11 and 3—Payment by the quantityof work done—Monthly service—Cooly working under a PublicWorks Department overseer—Service under the Department.
The circumstance that a labourer's pay depends on the quantityof work which he performs is not necessarily inconsistent withemployment on a contract of monthly service.
The case of a labourer who is under a contract of monthly service,and is sometimes called on to perform work which, as a matter ofconvenience, is paid for by the piece, is clearly distinguishablefrom that of a labourer whose contract of service consists only ofan agreement to perform defined work at a defined rate, accordingto the quantity of work whioh he does.
Where a cooly was paid monthly by the District Engineer outof funds voted for the service of Public Works Department, andhe received from the same source advances of rice which wer©distributed by his overseer,—
Held, that the cooly must be held to have entered the serviceof the Department.
* (1W9) 13 N. L. R. 88.
t 215 )
T
HE facts are set out in the judgment of the learned Magistrate(W. de Livera, Esq.), which was as follows:—
The accused is an Indian cooly, who was working in the Public WorksDepartment. He is charged by the District Engineer with quittinghis services on or about November 22 without leave or reasonable cause{section 11 of Ordinance No. li of 1866). In a prosecution under section11 of Ordinance No. 11 of 1865 a contract of service must be proved, either. verbal, implied, or written. There is no written contract in this case.The presumption raised by section 5 of Ordinance No. 13 of 1889 is notapplicable to the accused, because he is not a labourer within themeaning of that Ordinance. The complainant has in this to prove amonthly contract of hire and service as would bring the accused underthe Ordinance No. 11 of 1866. The District Engineer has entered into noverbal or written contract with the accused. The contract, if any, hasbeen entered into by the overseer. It is contended that he is the agentof the District Engineer and had full authority to do so. The DistrictEngineer in his evidence has stated how the .coolies are taken on andemployed. Overseers are not employed unless they* can keep coolies.When one overseer leaves, his successor takes over the coolies, payingthe debts of the coolies to the overseer who is leaving. The coolies, ifthey do not want to serve under the successor, are given a tundu, andif they bring this amount of their debts they are discharged by theDistrict Engineer. The debts are due to overseers. The accused inquestion was under one Nagamuttu when he left. Tambimuttu tookover this accused. The accused has been working from June or July,1912. So far as I can see, the accused is a cooly who broke metal, spreadmetal on the road, and also did miscellaneous works. There is a checkroll, produced, for coolies who do miscellaneous works, and accused’snarnA jg entered for eleven days in October, 1912, from 20th to 31st,at 50 cents a day. Then, there is what is called the pay sheet for October,1912, where I find accused has worked ten days and has earned Rs. 5.This, I take it, is as watcher of steam roller. Then, for spreading tencubes metal he has earned Rs. 11 * 50, and for breaking one cube metalRe.5*50. So he has earned in all during October on pay sheet Rs. 23*20.He has had four bushels rice advanced, Re. 20 * 20, balance Re. 1 * 80,besides the Rs. 5 he had earned as watcher. It is proved this Re. 1 * 80was paid to him by the District Engineer on November 14, 1912, andthe accused has put this thumb mark on the check roll. There is saidto be a separate check roll for each sort of work, but only one (A) hasbeen produced. The coolies have to break metal, and are paid accordingto the amount they break; they ore paid monthly. So. far as I cansee, they are not paid 50 cents a day. They are paid Rs. 5*50 for acube irrespective of the number of dayB. If a cooly. break a cube infive days he will have his Re. 5*50. As regards spreading of metal, too,a cooly gets Re. 1*15 for each cube he spreads. As watcher a coolygets 50 cents a day,1 as also for other work other than breaking andspreading metal. The District Engineer pays no advances to coolies*nor does he advance them rice. He advances rice to the overseer, whoadvances to. the coolies. The overseer is responsible to the DistrictEngineer. The overseer is paid Re. 1*50 a day for superintending thework. The tundus issued by the overseers for coolies have to be counter-signed by the District Engineer. The coolies live in the Public WorksDepartment lines. As I said before, the complainant has to prove a
1918.
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1918.
Jonhlaas 0.MuUusamy
monthly contract of hire and service to bring the accused under Ordi-nance No. 11 of 1895. He is entitled to call to his aid the presumptioncreated by section 3 of the Ordinance, which enacts every verbalcontract of hire of any servant, except for works usually performed bythe day, or by the job, or by the journey, shall (unless otherwise expresslystipulated, and notwithstanding that the wages under such contractshall be payable at a daily rate) be deemed and taken in law to be acontract for hire and services for the period of one month, to be renewablefrom month to month, and shall be deemed and taken in law to be sorenewed, unless one month’s previous notice or warning be given.
The prosecution in this case was bound to prove in full the contractof service, as the work the accused was doing was usually performed bythe day or by the job. Unfortunately for the prosecution the overseerhad left the service of the complainant, and be is said to have taken theaccused »*><! his other coolies to ah estate. The overseer, naturally,would not have helped the prosecution. He would have done hisutmost to negative any monthly contract, as he is charged with seducing .the coolies. Though the accused continued to work from July to Octo-ber, X am not prepared to hold he had entered into a monthly contractwith the overseer. The accused says he came in quest of employment;the overseer engaged him to break metal at 33 cents a day; his paydepends according to the. metal he breaks; he gave notice to the over-seer and left. He is not quire accurate, for he received 50 cents a day.He gave no notice, but the overseer seems to have taken him awaywhen the pverseer left. In my opinion the prosecution has failed todischarge the onus laid on him, and there was no burden laid on theaccused. Simply because his name appears in the check roll forten days, and he continued to work from July, 1912, to October,1912, I am not prepared to hold in this case, under section 3, a verbalcontract of service from month to month can be presumed. Thecontract of service ought to have been more clearly proved, especiallyas the work upon which he was employed was not agricultural work,and he was paid only for the days he worked, and there was noobligation on the employer to provide him with work. No monthlycontract could be implied under section 3 of the Ordinance. Again,unfortunately for the complainant, he cannot call to his aid the provi-sions of sections 5 and 6 of Ordinance No. 13 of 1889. It has been heldin 2 N. L. R. 3 (Alwia v. Carpen) that a cooly employed by thePublic Works Department to break metal, whose pay depends on thequantity of metal he broke, is liable to punishment for deeertion underOrdinance No. 11 of 1865. I have not been able to get at the record in thatoase, but I suppose a verbal contract must have been proved. Thereseems to have been evidence in the case that the cooly had contractedto work on labour incident to the routine of Public Works Department.Mr. Justice Lawrie in his judgment states: “ I have said enough, hqw-ever, to show that this is not altogether a clear case. The cooly may beexcused if he thought he was not under the Ordinance. The law issomewhat obscure.” The points raised in this oase is important as faras the Public Works Department is concerned, and I have no doubt thecomplainant will take this case to a higher court and obtain an authori-tative decision on the points raised. The law, as Mr. Justice Lawrieobserved, is somewhat obscure; from the meagre materials before meI cannot fully comprehend the system adopted by the Department as
1W8.
( 217 )
to payment of wages. At first sight it seems to me to be open to graveobjection, as, for instance, the case of the cooly Ramasamy. His nameis down as having worked the whole of October {vide check roll). Whenthe District Engineer came to cheok he found he had not worked, anddisallowed his wages. The District Engineer seems to me to pay byresult after examining the work. I acquit.
Garvin, Actingfor the Attorney-General, appellant.—The
accused is clearly a monthly servant. He was paid by the month.His name was on the check roll, and he received 50 cents a day forwhat might be described as ordinary cooly work. Whenever hedid stone breaking or metal spreading he was paid so muchper cube. This was necessary to prevent idling/ It was a checknecessitated by the fact that the conditions under which the labourwas performed did not admit of close supervision (Alwis v. Carpen 1).
The District Engineer paid the wages. He made advances ofrice. It must be presumed that the person who paid the wages isthe employer. In this case the District Engineer was the employer.
H. J. C. Pereira, for the accused, respondent.—The work done bythe cooly was not ordinary cooly work. It was akin to contractwork. It was paid by the job. No inference can be drawn fromthe advance of rice, for that was made to the overseer, from whomthe accused obtained the rice. So far as the accused is concerned,his employer is the overseer.
Cur. adv. vult.
April 26, 1913. Lascelles C.J.—~ •
This is an appeal by the Attorney-General from the acquittal ofthe accused on a charge brought against him under section 11 ofOrdinance No. 11 of 1865 by the District Engineer, Kegalla, ofquitting his service without notice. The acquittal is based on afinding that the accused was not under a monthly contract of service,and that he was in the service of his overseer and not in that ofthe District Engineer.
With regard to the first point, it is.provided by section 8 of Ordi-nance No. 11 of 1865 that every verbal contract for the hire of aservant, except for the work usually performed by the day, or by thejob, or by the journey, shall (unless otherwise expressly stipulated,and notwithstanding that the wages under such contract shall bepayable at a daily rate) be deemed to be a contract for hire and servicefor the period of one month. In the present case the contract ofservice was " verbal ” in the sense in which that word is used in the*Ordinance; it was not reduced to writing. There was no expressstipulation as to the duration of the contract. The question, there-fore, is whether the present case falls within the exception; whether,
Jonklaas 0.Muttusamy
i (1896) 2 N. L. B.3.
( 218 )
1918.
IiABCBELISS
CJ.
JanhUm t>.MuUusamy
in, other words, the work on which the accused was employed isusually performed by the day, of by the job, or by the journey. In
Alvris v. Carpeti1 Lawrie J. had to deal with a very similar case, and
came to the conclusion that a cooly employed by the Public Works
Department to break metal, whose pay depended on the quantityof the metal he broke, was a monthly servant and liable to punish-
ment for desertion. The facts of the present case are stronger thanthose of the case which I have cited, for here the cooly was notemployed entirely on piecework. It is clear from the evidence ofMr. Jonklaas, the District Engineer, that the accused was employedon different kinds of labour. In the month of October he appearsto have been employed for eleven days as a watcher to a steamroller at a rate of 50 cents a day; dining the same month he alsoearned Bs. 11:50 for spreading ten cubes of metal and Bs. 5 forbreaking one cube of metal. The accused, in other words, was notemployed exclusively on work which is paid for by the piece; hewas employed on work of the miscellaneous character usuallyexpected of a cooly employed in the Public Works Department.The fact that he was employed at times on work which was paid forby the piece does not alter the character of his general employment,for, as Lawrie J. pointed out, the circumstance that a labourer'spay depends on the quantity of work which he performs is notnecessarily inconsistent with employment on a contract of monthlyservice. The case of a labourer who is under a contract of monthlyservice, and is sometimes called on to perform work which, as amatter of convenience, is paid for by the piece, is clearly distin-guishable from that of a labourer whose contaract..of service consistsonly of an agreement to perform defined work at a defined rate,according to the quantity of work which he does. For these reasons,and on the authority of Alwie, v. Carpen,1 I hold that the accusedwas under a contract of monthly service.
Then comes the question whether the accused was in the employ-ment of the District Engineer, representing the Public WorksDepartment, or, as he contends, in the employment of the overseer,to whose gang he belongs.
I confess that I cannot see room for any doubt on this point.The accused was paid monthly by the District Engineer out of fundsvoted for, the service of his Department, and he received from thesame source advances of rice, which were distributed by his overseer.The relations between the accused and bis overseer are not material;they appear to be to some extent analogous to those between alabourer on a tea estate and his kangani; but, however that maybe, I cannot doubt but that the accused, so soon as he received -monthly wages and advances of rice from the Public Works Depart-ment for work done under the supervision of the District Engineer,must be considered to have entered the service of that Department.
M189613 N.L.R. 3.
I set aside the acquittal and convict the accused on the chargeframed against him. The Aoting Solicitor-General stated that hedid not press for substantial punishment; and as the charge is inthe nature of a test case, I merely sentence the accused to a fine of50 cents, and in default one day's simple imprisonment.
1913.
IiASOBUBS
CJ.
JonJdaoa a.Muttuscmy
Acquittal set aside.