010-NLR-NLR-V-13-LYALL-v.-NARAYANAN.pdf
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Jan. 27,1910
Present: Mr. Justice Wood Benton.LYALL v. NARAYANAN.
P. C., Matole, 33,774.
Ordinance No. 9 of 1909, s. 20—Quitting service—Notice by letter.
Section 20 of Ordinance No. 9 of 1909 does not prohibit a coolyfrom giving his employer notice of his intention to determine hiscontract of service by a letter which proceeds really from himself,even although it may have been prepared by a proctorA notice by an Indian cooly by a letter to which he set his mark,and which mark was authenticated by a' proctor, was held sufficientto satisfy the provisions of section 20 of the Labour Ordinance.
A
PPEAL against an acquittal with the sanction of the Attorney-General. The accused gave the complainant notice of his
intention to determine his contract of service by a letter, to whichhe set his mark. This mark was authenticated by the signature ofMr. Proctor Pompeus, who certified that the Accused set his markto the letter in his presence. It was also proved that the accusedunderstood the contents of the letter when he set his mark to it.The complainant, who admitted the receipt of the letter, chargedthe accused for quitting service without giving notice in terms ofsection 20 of Ordinance No. 9 of 1909. The Police Magistrate heldthat the letter was sufficient nptice, and acquitted the accused.
The complainant appealed.
A St. V. Jayewardena, for appellant.^—The construction placedon section 20 of the new Ordinance by the Police Magistrate wouldin effect nullify the object of the Ordinance, which was to requirethe cooly to give notice in person. Prior to this Ordinance noticeswere given either personally or by agent (i.e., proctor or kangany).The giving of notices >by agents had led to grave abuses, and was oneof the matters referred to the Labour Commission and dealt withby them, as shown by their report. [Wood Benton J.—-Do you(respondent) object to the report of the Commission being referredto ? Mr. Wadsworth objected.] Portions of the report may be readto show to this Court the evils and abuses which this Ordinanceintended to remedy. Counsel referred .to In re Mew v. Thome ,lMaxwell on the Interpretation of Statutes, p. 37.
The Commission recommended that in the event of any cooly onan estate desiring to give notice or to apply for his tundu, he berequired to appear before the superintendent, and that noticegiven on his behalf by his kangany or other agent, unless subse-quently personally confirmed by him, should be deemed invalid(Report of the Labour Commission, paragraph 30, p. ®ii). In theobject and reasons ” attached .to the draft Ordinance it is stated
1 31 L. J. Bankruptcy'87.
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that it is introduced to give effect to the recommendations of the Jan. 27,1910Labour Commission.
The present case is an attempt to evade .the letter and the spiritof the law. This clearly amounts to giving notice by an agent.
Formerly the agent himself used to sign the notice, but now heattests the signature of the cooly. The requirement of the lawthat the cooly should “ personally signify ” his intention wouldbecome a dead letter, if the accused’s contention be upheld.
Wadsworth, for the respondent. In construing an Ordinance wehave no right to look into reports of Commissions and parliamentarydebates {Attorney-General v. Sillem 1), except where there is anyambiguity in the words (Maxwell on the Interpretation of Statutes,p. 39). The words of section 20 are clear.
In this case the notice given by the cooly is not a notice given byan agent. The Ordinance does not prohibit the giving of notice byletter. If notice has to be given in person, a cooly who is ill maynot be able to give notice. The' Ordinance is a penal statute, andmust be strictly construed. “ Personally ” does not mean in person.
Jayewardene, in reply, cited sections 25 and 8 of the Civil Pro-cedure Code to show what “ personally ” meant.
January 27, 1910. Wood Renton J.—
This case, an appeal with the sanction of the Attorney-General-raises an important question in the construction of the IndianCoolies’ Ordinance of 1909. It has been ably argued on both sides.
Shortly stated, the material facts are these.. The appellant, Mr.
Lyall, who is the superintendent of Aluwihare estate, charged therespondent Narayanan with desertion from his service, in breachof section 2 of Ordinance No. 16 of 1905. He alleged that therespondent quitted the estate on November 26, 1909, withoutnotice, in terms of section 20 of the new Ordinance, and also withoutleave or reasonable cause. The respondent was acquitted in thePolice Court of Matale, on the ground that he had in fact given anotice sufficient for the purpose of satisfying the provisions ofsection 20 of the Ordinance of 1909, and against that acquittal thepresent appeal has been brought. The notice, which was in factgiven in the present case, consisted of a letter dated October 20.
1909, and purported to bear the mark of the respondent. It is inthe following terms: “To the Superintendent, Aluwihare estate,
Matale:I beg to give notice that I' will quit your services on
November 25, 1909. ” The respondent’s mark is authenticated bythe signature of Mr. Pompeus, Proctor, Matale, who certifies thatthe respondent set his mark to the letter in question in his presence.
At the hearing of the charge Mr. B. R. Perera, a clerk of Mr.
Pompeus, was examined. He stated that he wrote the letter inquestion on October 20 to Mr. Pompeus’s dictation; that the
1 (1863) 2 H. and C. 521.
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Jan. 27,1910 acoused-respondent put his mark to it in his presence, but that heWood had read and explained its contents, to him; and that he thenRenton J. handed the notice, after putting it into a cover. and addressing itto Mr Lyall—he does not say to whom the notice was in factNarayanan handed—to be posted after registration. In his evidence at thetrial Mr- Lyall stated that he duly received the notice in questionon October 21. If this notice satisfies in law the requirements ofsection 20 of the Ordinance of 1909, there can be no question thatthe respondent was entitled to leave Aluwihare estate on the 26thof the following November. I have, therefore to consider whetherthe provisions of section 20 have in fact been complied with. Thatsection is in the following terms: ‘ ‘ Notice of warning of the intentionof any labourer to determine his contract of service, if given byanother person on behalf of the labourer, shall not begin to run orbe in any way effectual in law, unless and until the labourer haspersonally signified to his employer his desire to determine hiscontract of service. ” It was argued by Mr. A. St. V. Jayewardene.on behalf of the complainant-appellant, that the clear intention ofthis section, particularly when viewed in the light of the report ofthe Labour Commission, on whose recommendation it was enacted,is to invalidate any notice of an intention to determine contract ofservice, which is either directly or indirectly given on behalf of thecooly through any agent, and he contended on the facts that inspite, of the respondent’s”mark having been affixed to the notice herein question, a mark which I must hold on the evidence to have beenduly authenticated, the whole transaction was in substance and infact conducted by the respondent’s proctor, and therefore obnoxiousboth to the letter and still more to the spirit of section 20 of thenew law. The case is one of first impression, and t have to determineit in accordance with general legal principles. There can be nodoubt as to what the duty of a Court is when it is called upon toconstrue an enactment of any Legislature. That duty has beendefined in the case of Attorney-General v. Sillem 1 in language sofar superior to any that I can find to express my meaning that Ipropose to cite a short passage from it in extenso:—
“ It may be said that this is a lawyer’s mode of dealing with thequestion, merely looking at the words. It is so, and I think it isright. A judge discussing the meaning of. a statute in a Courtof Law should deal with it as a lawyer, and look at its words. Ifhe disregards them and decides according to its maker’s supposedintent, he may be substituting his for theirs, and so legislate. Ashas been excellently said, better far be accused of a narrow prejudicefor the letter of the law than set up or sanction vague claims todiscard it in favour of some higher interpretation more consonantwith the supposed intentions of the framers or the spirit which oughtto have animated them.”
(1863) 2 U. and C. 837.
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Applying this canon to the case before me, I am clearly of opinion «/<»». 27,1910that the learned Police Magistrate was right in holding that the woodnotice here in issue is sufficient in law to satisfy section 20 of the RbJjton J.Ordinance of 1909. It is proved on the evidence that it was in fact i^M v.a notice which the cooly desired to be sent to his superintendent Narayananand under these circumstances I think it must be held to have beengiven by the cooly himself, mid hot by his proctor on his behalf.
In arriving at this conclusion, I have also kept in view the point,which was well urged by . Mr. Wadsworth on behalf of the respond-ent, that we are dealing here with a statute or, perhaps, I shouldsay with a group of statutes, imposing a penal liability. Taking thelanguage of section 20 in- its fair and ordinary signification, I thinkthat it does not prohibit the cooly from’ giving notice of an intentionto determine his contract of service by a letter which proceedsreally from himself, even although it may have been prepared by aproctor. Under these circumstances, the latter clause of section 20does not apply. We have here a notice which I hold .to be the actof the cooly himself and not of an agent on his behalf, and there wastherefore no need for the cooly personally to signify to the employerhis desire to determine his contract of service whatever the words“ personally signify ” may mean. I am prepared, however, to goa step further, and to consider the question whether there is any-thing in the Report of the Labour Commission to show conclusivelythat it was the intention of the Legislature to prohibit a cooly fromhimself sending a notice to his superintendent through the agencyof a proctor, or for that matter of any other person. There is a longcatena of authorities in English Law which establish the rule, thatfor the purpose of construing an Act of Parliament a Court is notentitled to look at the parliamentary debates which preceded its .enactment. At the same time there is clear authority in the EnglishLaw Reports for holding that where the Court has to construe astatute, and particularly where there is room for ambiguity as to themeaning^ of the Legislature, it is permissible to look at parliamentaryreports, which obviously do not possess the obnoxious characteristicsof parliamentary debates, arid which often show in the clearest .light what were the defects, or supposed defects, in the old law, andwhat is the remedy that the new law was designed to apply to them.
In the case of Syme$ v, Cuviller 1 it was* held by the Privy Councilthat the reports of the Commissioners who were connected with thepreparation of the Canadian Civil Code* while they were not, .of course,judicial authorities, could still be looked at as ratio scripta: andin the later case of the “ Solio *' Trade Mark 2 the Earl of HalsburyL.C. held that for the purpose of construing a later Trade Marks Act,it was not only legitimate, but highly convenient, to refer both tothe former Act, to the ascertained evils to which'it had given rise,to the later Act which provided the remedy, and in connection
1 (1880) 5 A .C. 138, 158.
* (2*M) A. C. 571, 576.
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Jan. 27,1910
WoodRenton J.
v.
Narayanan
with all these enactments to the Report of the Commission whichpreceded, and in fact to a large extent formed the basis of thelater legislation.
From the Report of the Labour Commission (paragraphs 30-38)it seems to me to be tolerably clear that the object- of section20 of Ordinance No.. 9 of 1909 was to check the abuse of thetundu system, which is specially dealt with in the former ofthese paragraphs. After pointing out that, in its practical working,it was a transaction between a kangany, the superintendent of theold estate, and the superintendent of the new, the Commissioners saythat “ they are convinced that in a large number of instances thecoolies who are transferred profit little or not at all by the transaction,that they follow their kanganies, for the most part, with an extra-ordinary docility, and are too often regarded by them as mereinstruments by- means of which money may conveniently be extortedfrom successive employers of labour.'* It is true, as*Mr. Jayewardenepointed out, that in paragraph 33, clause (6), the Commissionersrecommend that notice given on behalf of a cooly by his kangany“ or other agent ", unless subsequently personally confirmed by him,should be invalid. In my opinion, however, these words are veryfar from being strong enough to justify me in holding that thelanguage of section 20 of the new Ordinance prevents a cooly fromconsulting a proctor, and from himself giving notice in a letterproved to have been duly signed by him, even although his proctorhas prepared it. I am far from saying that the language of section20 should be restricted to the acts of kanganies, or from holding thatwhere a proctor himself gave notice on a cooly's behalf of the latter'sintention to determine a contract of service, such a notice would beeffectual until it had been personally confirmed by the cooly himself.As I have already said, it is not necessary for the purposes of thepresent case to decide, and I do not decide, the question whether thewords ‘ ‘ personally signify in the latter part of section 20 shouldbe interpreted as meaning signify by an appearance in person beforethe superintendent. It will be time enough to decide that pointwhen it is directly in issue. But I am quite clear that neither thelanguage of section 20 nor the terms of the Labour Commissioners'Report justify me in holding that the notice which was in fact sentto and received by the superintendent, of Aluwihare estate in thepresent case, and which must be taken to have been really sent bythe cooly with full knowledge of its contents, is a notice given by anagent on the labourer's behalf. I have thought it right to deal fullyboth with the facts of this cas and with all the legal issues whichare directly raised in it, in view of its difficulty and importance, 'andof the great assistance I have received from both sides of the Bar inarriving at my decision. The appeal is dismissed.
Appeal dismissed.