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KANDASAMY v. MUTTAMMA..
P. C., Pdnadwri, 14,977.
Master sued servant—Ordinance No. 11 of 1865, a. 11—Person entitled toprosecute.
Semble, the employer is the only person who can prosecute foroffences under the Labour Ordinance ; but a Magistrate might bejustified in issuing process on the complaint of a fellow servant onproof of his employer’s authority to make the complaint. In' thatcase, however, the employer should, be described as the complainant.
' j^FTF, facts of this case sufficiently appear in the judgment.
Pereira, for accused, appellant.
Cur. adv. milt.
19th June, 1896.- Bonseb, C.J.—■
This is a peculiar case. The appellant, a Tamil woman, wascharged with, and convicted of, the offence following : “ That she“ being an agricultural servant under a contract of hire and service“ for the period of one month, and renewable from month to month,“ quitted the service of her employer, Mr. Wetherall, of Perth estate,“ without leave or reasonable cause, before the end of her term of“ service or previous warning of her intention to determine the“ contract of service.”
I may here observe that this conviction is bad, for it does notstate when the offence was committed. However, I will not dealwith the case on this technical ground. From the evidenoe it wouldappear that she was charged with quitting service on or about the10th May last.
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The plaint was filed on the 15th May by one Kandasamy Kanganyin his own name. It is not necessary to determine finally whetherthis is legal or not.
In a similar case recently heard before Mr. Justice Withers, mylearned brother expressed his opinion that, even if legal, it washighly improper. No doubt, according to the theory of the EnglishCommon Law,' any person can prosecute on behalf of the Queen anyoffender against the Criminal Law. In theory, any bystander whosees one man assault another may prosecute ; but, as Mr. JusticeStephen in his work on the Criminal Law observes, although this istheoretically possible, yet it is practically impossible, because a jurywould refuse, to convict in such a case.
Bonsbb, C. J.
In my opinion, the employer is the only person who can properlyprosecute for offences under the Labour Ordinance, became he isthe only person injured. It is not like an assault or breach of theQueen’s peace, nor is'it an offence which oonoems any one but theparties themselves. It would be intolerable that if A’s cook leaveshim without notice, B, a complete stranger to both, should beallowed to institute a prosecution. No doubt a kangany is not acomplete stranger, and if he stated and proved that he was instructedby the joint employer to set the law in motion, possibly a Magistratemight be justified in issuing process on his complaint; but in thatoase the employer should be described as the complainant, and thusmade responsible for the proceedings.
In the present case, the employer was called as a witness for theprosecution, but he did not state that he ordered or authorized theprosecution, nor did the kangany allege that he had received anysuch orders.
[His Lordship then discussed the facts of the case, and held thatthe appellant had reasonable cause for leaving her employer’sservice.]
KANDASAMY v. MUTTAMMA