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Prevent: Mr. Justice Middleton-
OGILVY v. 'CARUPPEN.
P. G., Kandy, 10,369.
Cooly, desertionby—Non-paymentofwages—Set-offagainst advances—
Express consent—Implied assent—Ordinance No. IS of 1889, ss. 2,
8, sub-sec. (3).
Where the non-payment of a cooly’s wages is sought to be excusedon the ground that such wages have been appropriated in paymentof a debt due by the cooly not falling under aub-section (3) ofsection 6 of Ordinance No. 13 of 1889, it must be clearly proved thatthe cooly consented to such appropriation.
Qucere.—Whetherimplied assent is sufficient to justify . such
Scovell v. Mootammah 1 referred to and distinguished.
Middleton J.—Inmy opinion,in every case where any appro-
priation of wages is made either specifically with consent or as ofright undersub-section(3) of section' 6, the individual cooly
should, as a matter of equity and fair dealing, be made personallyacquainted with the specific proposals of the superintendent, andhave his opportunity of assenting or objecting.
mHE accused was a cooly employed in agricultural labour on
JL Nilamba estate, and was charged with quitting the service ofthe complainant on June 2, 1907, without leave, notice, or reasonableexcuse. The Police Magistrate (T. B. Russell, Esq.) convicted theaccused, and sentenced him to undergo one month’s rigorous im-prisonment. The facts are set out in the judgment of the Magistrate,which was as follows:—“ The facts of the case are not disputed.Accused is an Indian cooly on Nilamba estate. It is the custom ofthat estate to pay two months’ wages, and then with the coolies’consent set-off one month’s against the advance account. Anyobjectors are paid their wages. In this instance it is in evidence thatthe accused was present at muster on April 3, 5, and 8, when the coolieswere collectively told that their pay lor March would be set-off againstadvances, and that if any one objected to this he should come up andgive his name and get his pay. Some coolies did object and got then-pay, but the accused did not do so, and he must, I think, be taken tohave acquiesced in the appropriation; as I have said, I think thisacquiescence is sufficient in law to prevent accused subsequentlyclaiming the wages. Accused is about nineteen or twenty years ofage, and his proctor urged that, being a minor, he could not contracta debt, and could not consent to an appropriation which was
(1906) 9 N. L. R. 83.
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prejudicial to him. 1 could not accept .this argument. If accused 1901.has tiie power to sue for his wages, it seems to me only right to SeptemberlO.suppose that he has the power to consent to an appropriation ofthese wages.”
The accused appealed.
H. Jayewardene, for accused, appellant.
Van Langenberg, for the complainant, respondent.
Cur. adv. vult.
September 10, 1907. Middleton J.—
This was an appeal from a conviction for desertion under section 2of Ordinance No. 16 of 1905, for quitting service without leave orreasonable cause by a cooly. The defence set up was that he hadreasonable cause to leave the prosecutor’s service, inasmuch as hiswages were sixty days overdue. The defendant left the service onJune 3, and his wages for March had not then been paid; but it wasalleged by the complainant that with defendant’s consent his wagesfor that month had been appropriated to the part payment of adebt alleged to be due by the defendant to the head kangany, andthat by such agreed appropriation his wages for March must beconsidered as paid.
In the case of Scovell v. Mootammah1 my brother Wood Bentonheld that the cooly who claimed reasonable cause for quitting serviceon the ground that 60 cents of her wages were overdue and unpaidfor upwards of sixty days was not justified in so doing, inasmuch asshe had impliedly assented to the adjustment of her indebtedness tothe kangany by the superintendent’s appropriating her wages to thepayment of his debt, and that she accepted subsequent paymentswithout demur, and left the estate without making any claim for thebalance due to her. and did not come forward at the trial to give herversion of the matter. There the appropriation was made in virtueof sub-section (3) of section 6 of Ordinance No. 13 of 1889, whichimperatively ordains the debit to be made. I think also it was clearthere that the defence was a mere specious one.
Now I have no doubt that an Indian cooly, like any other humanbeing not under disability, may consent to his wages or pay beingappropriated to the payment of any debt he likes, or even given awayif he wishes. Under section 6, sub-section (3), of Ordinance No. 13 of1889 the employer has power to debit the cooly without his consentwith the amount of all advances of money made to him, and with thevalue of all goods, clothe®, or other articles supplied to him duringthe period of service for which the wages are computed, and whichthe employer is not liable at law to supply at his own expense, whencomputing the amount of wages due to him for any period of service.
1 (1906) 9 N. L. R. 83.
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1901.Now, in the present, case, I understood it was admittedthatthe
September10.debt against which the defendant’s wages wereappropriateddid
Mtodubtonnot fall under the amounts specified in sub-section(3), andtherefore
'it could only be appropriated with the cooly’sconsent.Itwas
certainly not proved that it was a debt which came within the termsof that sub-section.
The question, I think, is whether, in the present case, the cooly’sconsent appears to have been so clearly obtained to this specificappropriation that he cannot now deny that he was well awarethat his wages for the month of March had thereby been paid, andconsequently that he had no reasonable cause for quitting servicewithout leave, and was therefore criminally liable.
The evidence as to the defendant’s consent to .this appropriationwas that of Mr. Ogilvy, who stated that it was the custom of theestate to pay two months’ wages and then take one month intoadvance account.
The coolies were asked on April 3 by the teamaker and on April5 and 8 by the kanakapulle in the presence of Mr. Ogilvy, who under-stands Tamil, whether they wanted their pay. The accused, whowas present, did not give in his name. Consequently his wages forMarch were taken to advance account. There is no evidence to showthat the defendant consented to the specific appropriation nowrelied on, or that anything was done to stamp that fact as an accom-plished agreement on the mind of the coolv, which he could notafterwards deny. The man was not called up, nor spoken to person-ally about the appropriation, nor asked if he consented, nor was hesubsequently told that such a specific appropriation had been madeand entered in the estate accounts. As a matter of fact, it shouldnot be done, I think, until the man’s consent is clearly obtained. Ithink also it would be extremely dangerous to carry the doctrine ofimplied assent to the extent demanded in this case. It seems to me,therefore, that the defendant had no sufficient reason to suppose thatwith his consent his wages had been specifically appropriated by hisemployer, to the head kangany’s debt. If he had no sufficient reasonto think this, in my opinion he cannot be held criminally liable forquitting service without reasonable cause. It may be said that hehad, at any rate, reason to suppose that his wages would be andwere set-off against advances, but in my opinion, until the manpersonally and individually was called upon and acquainted withthe proposals of the superintendent, he has reason for saying thathe did not consent to the appropriation in question, where suchconsent is required.
In my opinion, in every case where any appropriation of wagesis made either specifically with consent or as of right under sub-section (3) of section 6, the individual cooly should, as a matter ofequity and fair dealing, be made personally acquainted with thespecific proposals of the superintendent, and have his opportunity of
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assenting or objecting. Proof of this indubitable consent in a case 1907.like the present is in my judgment indispensable, and should be September 10.provided for accordingly. The defendant here was not called as a Middletonwitness to give his version, but I do not think the evidence given byMr. Ogilvy required him to do so.
In my opinion this conviction must be set aside, and the defendantdischarged on the ground that it is not proved that he consented tothe specific appropriation of his wages for March so as to preclude himfrom setting up the defence that he had no sufficient reason tobelieve his wages for that month were paid, and therefore that he wasentitled to quit service without leave. It is not necessary underthe circumstances to consider the question of the defendant’sminority.
OGILVY v. CARUPPEN