084-NLR-NLR-V-48-MARIMUTTU-Appellant-and-WRIGHT-Respondent.pdf
Marimuttu v. Wright.
253
1947Present: Canekeratne J.
MARIMUTTU, Appellant, and WRIGHT, Respondent.
285—M.C. Hatton, 8,831.
Criminal trespass—Master and servant—Misconduct of Indian estate labourer—Ground for dismissal without notice—Refusal of labourer to quit estateafter dismissal—Estate Labour (Indian) Ordinance (Cap. '112), ss. 4,5—Penal Code, ss. 427, 433.
Where the accused, an Indian estate labourer, refused to attend workin consequence of a strike declared by a political association and;though his services were properly dispensed with, continued to remainthereafter on the estate in disobedience of the order of the Superinten-dent and in circumstances disclosing intention to annoy—
Held, that the accused was guilty of the offence of criminal trespass.^^PPEALi aganist a conviction from the Magistrate’s Court, Hatton.
N.E. Weerasooria, K.C. (with him P. Malalgoda), for the accused,appellant.
H. V. Perera, K.C. (with him E. F. N. Gratiaen, K.C.), fpr the com-plainant, respondent.
Cur. adv. vult:
254CANEKERATNE J.—MarimuUu v. Wright.
March 14, 1947. Canakeratne J.—
The appellant was, according to the evidence, an Indian immigrantlabourer employed on Moray Group at the material time ; usually hedid work as a labourer at a daily wage, at times he was engaged to cleara particular patch of ground of weeds during a month. In June, 1946,he had to clear a patch, 5 acres in extent, of weeds. A political association,called the Ceylon Indian Congress, conceived itself to be justified ininducing the immigrant labourers in Dickoya District, where this estatewas, to refrain from performing their contractual obligations. A strike,or according to the language of the witnesses “ a hartal ”, was declaredon June 17, 1946, not for the purpose of obtaining redress in a tradedispute, but with other objects ; most of the labourers did not come forwork for a number of days commencing from the 18th.
The Magistrate found that the Superintendent of the estate informedthe appellant and others on the 17th that if labourers, who went onstrike on the 18th, did not turn up for work on June 20, they will betaken to have refused to perform their work and will be giver, dischargetickets. The appellant did not present himself at the mustering placeon the morning of June 20, and his name was struck off the estateregister. His discharge ticket was written out the same day. TheSuperintendent offered to pay him and the other dismissed labourers onthe 28th. The ticket was offered to him on July 10, 12, 16 and 24 ; hewas also asked to leave the estate on July 12, 16, 22 arid 24 but he refusedto leave and remained in occupation of a line room to the annoyance, asalleged, of the Superintendent. Complaint was filed in Court aboutJuly 22.
One contention advanced before the Magistrate was that as a month’snotice was not given, there was no termination of the contract. Thefindings of the Magistrate were that as there was misconduct on the partof the accused the contract was terminated lawfully and that by remainingon the estate after July 13 the accused was guilty of the offence withwhich he was charged. The Magistrate convicted the accused onSeptember 19, 1946, and sentenced him to 3 months’ rigorous imprison-ment.
The appellant’s counsel contends that there was no discontinuance ofthe services of the accused and that it cannot be said that he intended toannoy the Superintendent as he was not unlawfully on the estate ;alternatively it is argued that he mistakenly assumed he was lawfully onthe estate and is not guilty of any offence. He referred in this connectionto sections 4 and 5 of Ch. 112 of the Legislative Enactments (EstateLabour, Indian, Ord.) and to the cases reported at page 291 of 6 CeylonWeekly Reporter and page 245 of 4 Ceylon Weekly Reporter. Both thesecases referred to a charge under section 11 of Ordinance No. 11 of 1865which made misconduct, desertion, &c., by a servant or an estate labourer1a criminal offence. On the facts established in the former case there
1 When this section was read with the section corresponding to sections 2 and 4 of Ch. 112.
CANEKKRATNE J.—Marimuttu v. Wright.
255
was room to think that the accused bona fide thought that the matter ofaccounts had been sufficiently discussed and thus there was no necessityto go to the place specified by the Superintendent ; in latter case concernsan estate labourer who was attending to his ordinary work and at thesame time was engaged in weeding a plot of ground. These cases wouldnot advance the position of the accused in this case.
The duration of a contract of service is, as a general rule, fixed by theagreement of the parties or by usage; where the period so fixed is amonth, if the servant continues to serve the master after the expiry ofthe first month, the hiring will be considered to be continued by thesilence of both parties till the end of the next month, the necessity beingat the same time imposed on those who do not wish to continue theservices after the expiry of the term of hiring of either giving timelynotice or else of continuing liable in damages, for the parties contemplatethe possible continuance of the hiring even though it was for a month1 *;thus the engagement of domestic or menial servants is determinable byeither party at any time on giving a month’s notice5 and by the masteron paying or tendering a month’s wage in lieu thereof3 *.
The next question relates to misconduct. Continued good conduct bythe servant seems to be a condition, either express or implied, of thecontinuity of service, the breach of which'entitles the master to end theemployment. By a breach of this condition the servant acts in a mannerencompatible with the due and faithful discharge of his duty. It is wellsettled that a master may dismiss his servant for many reasons, such aswilful disobedience of lawful commands, substantial negligence, mis-conduct, dishonesty and the like. Such matters may be said to consti-tute such a breach of duty by the servant as to preclude the furthersatisfactory continuance of the relationship and to justify the master inelecting to treat the contract as repudiated by the servant.
The appellant had by June 17 cleared an extent of 3 acres of weeds : hisconduct on the 20th'made it clear that he would do no more weedingtill the political body ordered him to attend to his work ; while he remainedinactive the rank weeds would continue to grow. Thus he put it out ofhis power to complete the weeding of his patch by the end of the month.
It seems that the strike was called off about July 10, and the accusedappeared on July 12 at the place used then as the office and applied to bere-employed on the estate but the Superintendent refused to accept hisfurther services. The question in a case is whether the acts and conductof a party evince an intention no longer to be bound by the contract*.A deliberate breach of a single provision of a contract may, under specialcircumstahces and particularly if the provision be important, amount toa repudiation of the whole bargain (Withers v. Reynold “)
1 cf. Voet 19-2-10
van Lesuioeen Centura Forensic 1-4-22-6, IS.cf. Service Contracts Ord. (Ch. 59) Sec. 3.
As regards servants and Indian estate labourers, one month’s previous notice of intention is
necessary, Ch. 59, sec. 3 and Ch. 112, Sec. 5.
cf. Ch. 59, sec. 4 (i).
General Billposting Co. v. Atkinson, {1909) A.C. p. 118.
1 {1831) 2 Bam <fc Ad. 882, 109 Eng. Reports. 1370.
48/23
256
Vidane v. Ukkumenika.
There was evidence upon which the Magistrate could properly findthat the appellant had wrongfully repudiated his contractual obligation ;his services were properly dispensed with. No direct authority wascited to show that a master cannot dismiss an Indian estate labourer formisconduct.1
The intention has to be gathered from the circumstances of a case.The Magistrate considered the conduct of the accused, especially hisoriginal refusal to accept the discharge ticket, his offer to accept it if theSuperntendent obtained it from the Labour Commissioner’s Office, hissubsequent refusal to take it when tendered by the Superintendent andhis remaining in occupation of the line room in direct disobedience ofthe order of the Superintendent; he drew the inference that the intentionof the appellant was to cause annoyance to the complainant; that inferenceseems to be a correct one.
I substitute for the sentence imposed by the Magistrate one ofrigorous imprisonment for five weeks and a fine of Rs. 50 : in default ofpayment of the fine the accused will undergo one month’s rigorousimprisonment.
Conviction affirmed.
Sentence altered.