NARTHUPANA TEA AND RUBBER ESTATES, LTD., Appellant, and L. E. PERERA, Respondent

030-NLR-NLR-V-66-NARTHUPANA-TEA-AND-RUBBER-ESTATES-LTD.-Appellant-and-L.-E.-PERERA-Respondent.pdf


■Narthupana Tea and Rubber Estates Ltd. v. Perera
135
1962Present: Sanson!, J., and Silva, J.NARTHUPANA TEA AND RUBBER ESTATES, LTD.,Appellant, and L. E. PERERA, RespondentC. 178}60—D. C. Colombo, 46009jM
Appeal—Finding of fact influenced by irrelevant considerations—Liability to be
set aside—Judge—Duty to be guarded and restrained in his comments.
A trial Judge’s finding of fact is liable to be set aside in appoal if it wasinfluenced by irrelevant considerations.
Parties to an action are entitled to a judgment written without exaggerationor passion. The very circumstance that absolute privilege attaches to judicialpronouncements imposes a correspondingly high obligation on a Judge to beguarded and restrained in his comments, end to refrain from needless invective.*
Employer and employee—Termination of employee's services—Period of notice
to which he is entitled—Overstaying servant—His position as trespasser.
In the absence of agreement or custom to the contrary, a hiring of servicesfor an indefinite period at a monthly salary is determinable by a month’s notice.Accordingly, an Assistant Superintendent of a tea and rubber estate, drawinga monthly salary, is entitled only to one month’s salary as damages for failureto be given due notice of termination of his services.
Where an employee occupies, as a servant and not as a tenant, a bungalowbelonging to bis employer, he has no right to remain in occupation after thetermination of his services. He is on the premises thereafter as a trespasserand would not be entitled to claim damages if the lights and water serviceare cut off.
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SANSONT, J.—Narthupana Tea and Rubbers Estates Ltd. v. Perera
■A.PPEAL from a judgment of the District Court, Colombo.
Eanganathan, for Defendant-Appellant.
C. D. S. Siriwardene, with M. T. M. Sivardeen, for Plaintiff-Respondent.
Cur. adv. vult.
July 11, 1962. Sansoni, J.—
The Plaintiff was employed by the Defendant as an AssistantSuperintendent of its estate from 20th February 1956, on a salary ofRs. 400 a month plus a 10 % contribution to the Provident Fund. Hewas also entitled to a'motor cycle allowance of Rs. 50 a month and onelabourer. He was on probation for 6 months and was confirmed at theend of that period. He filed this action against the Defendant, allegingthat on 1st November 1958 it discontinued his services wrongfullywithout any notice whatsoever. In his plaint he claimed :—
the equivalent of 6 months’ salary and allowances as damages
amounting to Rs. 3,600 ;
Rs. 5,000 as damages on the ground that the Defendant on 1st
November 1958 cut off the lights and water services in his
bungalow, and refused to issue rations to him and his family ;
a sum of Rs. 18,886 as dearness allowance for the entire period
of his service, which he says the Defendant agreed to pay him.
There was a further claim in respect of a sum of Rs. 2,000 which waswithdrawn at the trial, and I need not refer to it.
In its answer the Defendant pleaded that the Plaintiff’s services wereterminated as from 31st October 1958 by a notice served on him on 30thSeptember 1958. It denied that the Plaintiff was entitled to anydearness allowance. It pleaded that from and after 1st November1958 the Plaintiff had been a trespasser in the bungalow on the estate.
The Plaintiff gave evidence in the course of which he said that3 or 4 months after he was appointed on probation the former ManagingDirector, Mr. Wickramasinghe, agreed to pay him dearness allowanceafter the Company had liquidated its debts. He also said that whenhe spoke to the present Managing Director about such an allowance,the latter refused to pay it. On this point the learned District Judgehas held that there was no unconditional promise to pay dearnessallowance and that the Plaintiff was therefore not entitled to anythingon that account.
SAJSTSONI, J.—Narthupana Tea and Rubber Estates Ltd. v. Perera
137
It does seem strange, however, that if the Plaintiff had at any timethought that he was entitled to such an allowance, he should have beencontent to wait for over 2 years without ever mentioning this subjectin a letter to the Defendant. Mr. Ranganathan submitted that thePlaintiff had deliberately made a false claim under this head, and thathis veracity was therefore in doubt on the rest of the case.
The main question that remains for decision is whether the Plaintiffwas served with a written notice on 30th September 1958 to the effectthat his services would not be required after 31st October 1958. ThePlaintiff denied that he was served with such a notice, while the Defendantled the evidence 'of the Head Clerk of the Estate to prove that a writtennotice was served on the Plaintiff at his estate at 4.30 p.m. on the 30thSeptember 1958 by the Head Clerk who came from the Colombo officeof the Defendant bringing that notice with him. A copy of the noticehas been produced, and also a report of the service made to the Defendantby the Head Clerk of the estate. Apart from the evidence of thisHead Clerk who said that he was present along with others (who werenot called as witnesses) when the notice was handed over to the Plaintiff,the Managing Director of the Defendant spoke to having sent theHead Clerk from the Colombo office on that day for that specificpurpose. The learned Judge has held that no notice was served on thePlaintiff and he has given his reasons for so holding.
I have considered all these reasons carefully. I have also taken into-account the Plaintiff’s evidence that it was only after he wrote a letteron 3rd November 1958 to the Defendant that he was sent a noticePhis evidence was given when he was questioned by the Court. Itis pertinent to ask when such a notice was received by him, where itis, and how he received it. No such notice has been produced by thePlaintiff. It seems to me that the Plaintiff tried to show that theDefendant gave him notice of his termination of his service some day.after the 3rd November but the rest of the evidence has fully satisfiedme that such a thing could not have happened. On 30th October, 1958,the Defendant wrote to the Plaintiff the letter P2 in which it refers to anotice that had already been served on him, to leave its service as from1st November. On 1st November the lights and the water service inthe bungalow occupied by the Plaintiff were discontinued, accordingto a statement in paragraph 6 of the Plaint. It seems far more probablethat the Plaintiff did receive a month’s notice on 30th September andnot after 3rd November.
I appreciate that this is a question of fact that the learned Judgehad to decide, and, if there had been a careful and well-considered•decision arrived at in an atmosphere of calm, I would have been reluctant
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SANS ONI, J.—Narthupana Tea and Rubber Estates Ltd. v. Perera
to interfere with his findings. Unfortunately, the learned Judge haafailed in writing his judgment to exercise that moderation and restraintwhich one expects of a Judge. It has been made a matter of complaintthat the language used by him in referring to the management of theDefendant is intemperate and unjustified. He has said “ the Managementof the defendant company stands in no better position than that of athug or bully and/or a fraud or cheat. ” He has referred to the Manage-ment’s “ inhuman behaviour ”,“ fraudulent conduct ”, and added
that the “ defendant company is capable of stooping low ”. He hassuggested that the “ Plaintiff’s bungalow was burgled with the benedic-tion of the defendant company or of its servants and agents at the spot,,and that the responsibility for the burglary can well be brought hometo the Defendant Company. ” Finally be has said : “ These brownMoghuls who have succeeded to the planting interests of the whiteImperialists have yet to learn the sense of justice and the due respectfor law and order their predecessors had. ”
I regret that it should be necessary to remind the learned Judge thatthe parties were entitled to a judgment written without exaggerationor passion. Chief Justice Stone of the Supreme Court of America oncesaid : “ Precisely because judicial power is unfettered, judicial res-ponsibility should be discharged with finer conscience and humilitythan • that of any other agency of Government. ” The ampler thepower, the greater the care with which it should be exercised. And thevery circumstance that absolute privilege attaches to judicial pronounce-ments imposes a correspondingly high obligation on a judge to be guardedand restrained in his comments, and to refrain from needless invective.The learned Judge has used hard words in referring to the managementof the Defendant Company. I do not think they were justified, and inthese.circumstances I feel that it would not be wrong for us to interferewith his finding of fact regarding the service of notice on the Plaintiff.
The learned Judge’s attack on the management, and his opinion ofits conduct and behaviour, appear to have been provoked by two matters,both of which were hardly relevant to the questions at issue. One wasthat, whilst under a contract to supply all its produce to a certain firmwhich had given it advances, the Defendant Company has not scrupledto sell a part of its produce elsewhere. It is true that the Plaintiff hasgiven evidence to this effect, but the alleged contract could only havebeen proved satisfactorily by the production of the written agreement.The charge that the Company had acted in breach of that agreementshould have been specifically put to the Managing Director when he wasin the witness box. The other matter was the learned Judge’s view
SANSONI, J.—Narthupana Tea and Rubber Estates Ltd. v. Perera
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that the Defendant Company took some part in the burglary of thebungalow which was occupied by the Plaintiff. There is no evidencewhatever to justify this view. The learned Judge has said, that it wasimperative that he should look for corroboration of the Defendant’scase. He would probably have taken a different view if he had notbeen influenced by the irrelevant considerations to which I have justreferred.
After considering what damages the Plaintiff should be awarded forthe Defendant’s failure to give him notice, the learned Judge has awardedhim damages amounting to three months’ salary. In my view he erredin so doing, because the Plaintiff was a monthly paid servant whoseservice was from month to month. He was therefore only entitled to aclear month’s notice.
In view of the arguments addressed to us, I shall deal briefly with thequestions of law that arise on this part of the case. Mr. Siriwardenaseemed to argue at one stage that the Plaintiff was not on a monthlyengagement, and he cited Lee & Honore on The South African Law ofObligations, p. 107, where it is said ** The mere fact that a servant ispaid weekly or monthly does not constitute his engagement a contractof service for a week or a month. ” The case cited in support of thisstatement is Central South African Railways v. Cookex. But that was acase where no sum was agreed between the parties as monthly wages,and the wages were paid at the end of each month for convenience.The employee was in fact engaged at a daily rate. It was thereforeheld that it was not a montnly hiring. What is more pertinent is thepassage at p. 96 ,of the same text book which reads “ In the absence ofagreement or custom to the contrary, a hiring for an indefinite periodat a monthly rent or wage, whether of things or of services, is determi-able by a month’s notice expiring at the end of a calendar mo.fth. ”There is no doubt that in this case the Plaintiff was engaged from monthto month.
Was he then only entitled to a month’s notice ? It has been heldover and over again by this Court that where a servant is engaged frommonth to month, he is entitled only to one month’s notice. The firstcase I might refer to, although there are earlier cases which took the sameview, is Sirisena v. Kurugama Tea Co.2 A Bench of two Judges heldthat a dispenser engaged on a monthly salary of Rs. 140 was entitledonly to one month’s notice. Ennis J. there said “ The question woulddepend not on the professional character of the service, but on the tenor
1 (1904) T. S. 531.
2 (1924) 26 N. L. R. p. 208.
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SANSONI, J.—Narthupana Tea and Rubber Estates Ltd. v. Perera
of the engagement. ” He also cited the passage which has often beenquoted in subsequent cases. It appears in 3 Maasdorp (1924 Edition)p. 265. The principle there laid down is that an “ employee is entitledto a reasonable notice of the termination of the contract, and what isreasonable notice will depend on the circumstances of each particularcase. When the service is from month to month, the salary being payablemonthly, he will be entitled to a clear month’s notice. ” The italics aremine.
The same rule was followed in LaBrooy v. The Wharf LighterageCompany1 and Samarasekera v. Urban District Council, Negomboa. Boththose cases concerned persons engaged from month to month, and onemonth’s notice was held to be sufficient. Wille in Principles of SouthAfrican Law (4th Edition) p, 414 says in dealing with notice of termina-tion where the contract of service is periodic : “ Under the common lawthe contract is terminable by reasonable notice given by either party.Reasonable notice in the case of a monthly contract is a month’s noticegiven so as to expire at the-end of a month, and such notice given on thefirst day of a month is sufficient to terminate the contract at the end ofthat month. ” The italics are mine. The only exception to this rulethat I can find is where there is custom or agreement to the contrary—See Tiopaizi v. Bulawayo Municipality 3. No such custom or agreementhas been relied on in this case.
There are two cases which do not seem to have followed this principle,but the judges do not appear to have intended to lay down any principle.In Thuraisamy v. Thailpayari, a teacher employed at Rs. 20 per monthwas awarded 2 months’ salary in lieu of notice, but Wijeyewardene, J.expressly said that he was treating the Plaintiff generously in holdingthat he should have been given two months’ notice. This case canhardly be treated as a binding authority in these circumstances. InH. A. de Zoysa v. B. T. de Silva5, a school teacher employed on a monthlysalary of Rs. 63 plus a cost of living allowance, was dismissed withoutnotice. The dismissal was sought to be justified by charges which werenot substantiated. Gratiaen J. awarded the plaintiff the equivalentof six months’ salary and allowances as damages. He said this, however:“ I must not, in reaching this conclusion, be understood to express anyview of general application with regard to the period of notice which aprofessional school teacher is entitled to claim from his employer. ”Again I would say that no principle can be deduced from this authority.
i (1932) 34 N. L. R. 85.8 (1924) A. D. 317.
8 (1935) 37 N. L. R. 169.4 (1943) 44 N. L. R. 28
6 (1948) 19 Times of Ceylon Law Reports 144.
SANSONI, J.—Narthupana Tea and Rubber Estates Ltd. v. Perera
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The learned trial Judge has relied on the cases of Forsyth v. Walkerand Clark Spence1 and Perera v. The Theosophical Society 2, when dealingwith this part of the claim. In my view they have no application. Theformer case was one where the employee was engaged for a definite periodof 4 years. The agreement was broken by the employer and it was held
that 6 months was reasonable notice. The latter case was one where,
»
upon consideration of the agreement, the Court held that the contractwas more than a monthly engagement and 6 months was held to bereasonable notice again. The same principle was applied in Oringer v.The Eastern Garage Ltd.3, where there was a breach of a three yearagreement and the Court held that 7 months’ salary less any earningsmade during those 7 months should be awarded. A distinction mustalways be drawn between cases such as the present one, where there isa month to month engagement, and the last three cases I have referredto, where there is an engagement for a fixed period. Following theopinion expressed in the vast majority of the judgments of this Court,I would hold that a month’s notice is sufficient. Since such noticewas given in this case, the plaintiff was not entitled to any damagesfor the termination of his services.
There only remains the award of a sum of Rs. 750 as damages on theground that the Defendant cut off the fights and water service of thePlaintiff’s bungalow, and refused to give rations to the Plaintiff and hisfamily, from 1st November, 1958. I am satisfied that the Plaintiff,who was provided with a furnished bungalow for his occupation, occupiedit as a servant and not as a tenant. Upon the termination of his servicesthe Defendant was entitled to retake possession—see Diamond’s Law ofMaster and Servant (2nd Edition) p. 29. The Plaintiff therefore hadno right to remain in occupation. He cannot complain in thesecircumstances if the fights and water service were cut off and rationsrefused, because he was on the premises thereafter as a trespasser.His claim on this account must therefore fail. In the result the Plaintiff’saction fails entirely. I set aside'the judgment and decree under appealand dismiss the Plaintiff’s action with costs in both Courts.
Silva, J.—I agree.
Appeal allowed. 1
1 (1931) 33 N. L. R. 211.3 (1930) 14 Ceylon Law Recorder 190.
8 (1929) 32 N. L. R. 281.