PERIASAMY v. THE ANGLO-AMERICAN DIRECT TEA TRADING CO.LTD et al

106-NLR-NLR-V-14-PERIASAMY-v.-THE-ANGLO-AMERICAN-DIRECT-TEA-TRADING-CO.LTD-et-al.pdf


( 365 )
Present: Wood Renton J. and Grenier J.
PERIASAMY v. THE ANGLO-AMERICAN DTRECTTEA TRADING CO., LTD., et al.
69—D. C. Kalutara, 4,348.
Custom-^Twndu—Employer is not bound to give tundu if the cooliesrefuse to go -with the kangany.
There is no obligation on the employer to grant a tundu on thedischarge of a head kangany for both himself and his coolies wherethe latter refuse to go with the head kangany or to be paid off fromthe estate. '
rjpHE facts are set out in the judgment of Wood Renton J.
Sampayo, K.C. (with him Schneider), for the appellants.—The firstand second defendants are sued together for breach of contract.The second defendant was only an agent of the first defendantcompany ; he could not be sued with the principal for the breachof this contract. The plaintiff entered the service of the defendantcompany before the second defendant was appointed superintendent.
No custom has been proved by the plaintiff which would make itbinding on the defendants to give the kangany and his gang atundu when the coolies are unwilling to leave the estate, or to payin the alternative the debts owing to the kangany from the coplies.
An employer who gives a tundu warrants that the coolies arewilling to enter the service of another employer. It is cleartherefore, that no custom can possibly compel an employer togive a tundu when the coolies are unwilling to go with the kangany.Counsel cited Walker v. Cooke,1 The Bambrakelle Estates Tea Co.,Ltd., v. The Dimbula Valley Tea Co., Ltd.,2 211—D. C. Kandy,
is^o.-1Bawa (with him A: St. V. Jayewardene and Sansoni), for therespondent.—It is a well-established custom ' obtaining in theplanting districts to treat the kangany and the coolies as one body.When an employer of a labour force dismisses a kangany, he isbound to give the kangany a tundu. If the employer does notgive a tundu, he ought to pay over to the kangany the amountof the indebtedness of the coolies. All the law prevailing in theplanting districts is not contained in the Labour Ordinances.
1 {1910) 14 N. L. R. 161.8 (1909) 2 Cur. L. R. 12.
8. C. Min., May IS, 1911, reported in this Volume,
July 24,1911
29-
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July 24,1011 Many customs have acquired the force of law in the plantingPeriaaamy v. districts. Th evidence in this case establishes the customs whichThe Anglo- the plaintiff seeks to prove.
Direct Tea The usage or custom which the plaintiff seeks to prove is notTmdi!trt. contrary to law ; on the other hand, the Courts would appear tohave recognized the custom to some extent in several reportedcases. See Newman v. Vetanayagam Kangany,1 Imray v. Palawasan,'1Whitham v. Pitchche Muttu Kangany,3 Muttiah v. Ramasamy,4Baine v. Nallatamby,5 Browne's Labour Laws, p. 53. It is notnecessary that the usage should have antiquity to support it.The usage may still be in the course of growth. It will be upheldif it appears to be well known and acquiesced, in so that it mayreasonably be presumed to have been tacitly imported by theparties into their contract. See Kumarappa Chetty v. The CeylonWharfage Co., Ltd.6 Custom may be proved even in the case ofwritten contracts. Evidence Ordinance, section 92 (5). Counselalso referred to the Evidence Ordinance, sections 13 and 48 ; AmeerAlt's Law of Evidence, pp. 640 to 644 ; 2 Walter Pereira's Laws ofCeylon, p. 28.
Walker v. Cooke‘ does not appear to have been rightly decided.A planter giving a tundu can only place the coolies in a positionto enter other people’s service.
The claim against the first defendant is based on a.contract; thesecond defendant is liable in tort.
Cur. adv. vult.
July 24, 1911. Wood Renton J.—
In the view that I take of this case it is necessary to follow thecourse of the pleadings carefully. The plaintiff-respondent, Peria-samy, formerly head kangany on Meddegedera estate, Alutgama,within the jurisdiction of the District Court of Kalutara, sues theAnglo-American Direct Tea Trading Co., Ltd., the proprietors, andMr. N. F. Macrae, the superintendent, of the estate, under circum-stances which are thus set out in the plaint. He alleges that aboutfourteen years ago it was agreed between the appellants and himthat the former should employ him as head kangany, and thecoolies whom he might bring along with him as labourers, onMeddegedera estate. He says (paragraph 3) that “ the usual termsof such employment were well known and understood, and therewas no express agreement in respect thereof.” Paragraph 4 of theplaint is material
By a well-established custom obtaining in all the planting districts ofCeylon, a kangany is, whennotice is given for the determination of
1 {1885) 7 S. C. C. 40.4 {1903) 6 N. L. R. 323.
* {1900) 4 N. L. R. 113.* {1905) 8 N. L. R. 258-
3 {1900 and 1902) 6 N. L. R.289.• {1905) 2 Bal. ISO.
7 {1910) 14 N, L. R. 161,
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his contract of service, or such determination is otherwise decided upon,entitled to receive from his employer a tundu setting out the totalamount of the liability of himself and his coolies, and stating that onreceipt of such amount the kangany and his coolies will be dischargedfrom the employer’s estate, and the kangany is entitled on paymentof such amount to have his coolies discharged from the employer’sestate.
The respondent proceeded to allege that, in pursuance of theaforesaid agreement, he and his coolies served the appellants onMeddegedera estate till July 13, 1?10, when the appellants informedthe respondent that they would not retain him in their service afterAugust 13, 1910, and expressly refused to give a tundu to himselfand his coolies, 330 in number, the names of whose sub-kanganies' appear in a schedule annexed to his plaint. He goes on to say thatfrom and after August 13, the appellants did not allow him to serveon the estate, and, although requested to do so, refused and neglectedto grant him a tundu in respect of himself and his coolies, and thatin consequence of such wrongful conduct on the part of the appel-lants, and by reason of the latter inciting and persuading the respon-dent’s coolies to remain on the estate, in breach of an agreementbetween him and them, to which I will revert in a moment, he hadlost all benefits and advantages derivable through the said coolies,was prevented from recovering from them their debts due to him,aggregating according to the particulars given in the schedule tothe plaint to Rs. 23,024'12, although the amount is stated in theplaint itself to be Rs. 23,034’12, and had been greatly prejudicedin his chances of obtaining employment as a kangany. The allegedagreement between the respondent and his coolies is stated thusin paragraph 7 of the plaint:—
Each of the said coolies had, in consideration of certain advancesmade to him by the plaintiff and of the promise of certain other advancespromised and agreed to and with the plaintiff that he would acceptemployment and work only on such estate or estates as the plaintiffmight from time to time arrange so long as any portion of the saidadvances should remain due to the plaintiff, and that the amountof all such advances should be liquidated by the plaintiff receiving theamount thereof from the estate on which such coolies might be employedas aforesaid out of the wages due to such cooly for work done on thesaid estate in such proportion or instalments as such cooly would fromtime to time prescribe.
The respondent further alleged that he was entitled to receivefrom the appellants, as head money and commission in respect ofwork done by his coolies, a certain sum of money, which he wasunable to estimate by reason of the appellants not having permittedhim to work with his coolies, or to have access to the accounts kepton the estate, and also a sum of Rs. 464 which he had advanced topne Velu Kangany at the appellants’ request,
July 24,1011
WoodRenton J.
Periasamy v.The Anglo.AmericanDirect TeaTrading Go.,Ltd.
( 368 )
July 24,1911
Woo»Renton J.
Periaaamy v.The Anglo-AmericanDirect TeaTrading Co.,Ltd.
The various heads of his claim may be summarised as follows :—To the Rs. 23,034'12, the alleged indebtedness of his coolies to him,he added a claim for Rs. 2,000 damages, and also the advance ofRs. 464 to Velu. These figures yield a total of Rs. 25,518'12. -Inrespect of the head money and commission, he prayed that theappellants be called upon to file a true and correct statement of theamount due to him as head money and commission, and that indefault of their doing this they should be condemned to pay a sumof Rs, 1,000.
The appellants in their answer denied the custom stated by therespondent in paragraph 4 of his plaint, alleging that they hadterminated the respondent’s engagement as head kangany forlawful reasons and after due notice as from August 13, 1910. Theyadmitted that the second defendant-appellant, Mr. Macrae, had assuperintendent refused to grant a tundu to the respondent, on thegrounds that the coolies- belonging to his gang, not only had madeno request therefore, but had refused to be paid off from the estate.The appellants further denied that the respondent had by any acton their part been prevented from recovering from the coolies anydebts alleged to be due to the respondent from'them. They pleadedalso that the respondent could not maintain the action against thesecond defendant-appellant, who was only the agent of the firstdefendant company, and who, in fact, was not on the estate at thetime when the respondent came there as head kangany. Theappellants said that the accounts between the plaintiff and thecoolies in his gang in connection with the estate had been lookedinto and stated monthly ; that the respondent had at all reasonabletimes had access to the accounts, particulars of which were filedwith the answer ; that the total indebtedness of the respondent onAugust 13, 1910, was Rs. 9,810'44 ; that a sum of Rs. 8,225-51was admitted by the coolies to be due by them ; and that deductingthat sum there was a balance of Rs. 1,584-93 due from the re-spondent to the first defendant company, which claim, however,was waived.
On these pleadings the following interminable array of issueswere framed :—
Can plaintiff maintain this action against the second defendant,who is admittedly the agent of the first defendant ?
Was it agreed'fourteen years ago between plaintiff and defendantsthat the plaintiff and the coolies in his gang should serve the defendantson Meddegedera estate J
Was there an agreement as set out in paragraph 7 of the plaintbetween plaintiff and the coolies ?
How many coolies had plaintiff in his gang on July 31, 1910 ?
Is there such a custom in the planting districts in Ceylon as setout in paragraph 4 of the plaint f
Even if there is such a custom, were plaintiff and the coolies inhis gang employed on the footing of such custom 1
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Were the defendants justified in refusing to give a tundu forhimself and the gang of coolies under him in August, 1910 ?
Was plaintiff, by reason of the refusal of the defendants to issuea tundu for himself and the ooolies in his gang, prevented from securingemployment elsewhere ?
Were the defendants justified in refusing to allow the plaintiff towork on the said estate after August 13, 1910 ?
Did the defendants incite and persuade the coolies in theplaintiff’s gang to remain on the said estate in breach of any agreementbetween the plaintiff and his coolies ?
If so, did the plaintiff in consequence thereof lose all benefitsand advantages derivable by him from the ooolies in his gang, and washe thereby prevented from recovering the debts, if any, due from thosecoolies to him ?
What was the amount of the debts due from those coolies tothe plaintiff ?
If issues 10 and 11 be answered in the affirmative, is plaintiffthereby entitled to recover from the defendants the sum of Rs. 23,034'12or any other sum ?
Did the defendants, at the request of the coolies in the plaintiff’sgang, transfer the said coolies into the charge of other kanganies ?
If so, had the defendants the right to do so without the consentof the plaintiff ?
What damages, if any, is plaintiff entitled to claim for thewrongful acte complained of against the defendants 1
What sum is due to the plaintiff for head money and commissionin respect of work done by coolies in his gang ?
Is the plaintiff entitled to head money and commission afterAugust 13, 1910 7
' Did the plaintiff at defendants’ request advance Rs. 464‘10 toVelu Kangany’s gang f
The case went to trial on these issues. The learned District Judgefound on all material points in the respondent’s favour, and, aftermaking various deductions from his claim and setting off hisindebtedness to the estate, gave judgment for the respondent forRs. 11,500 with legal interest from the date of the institution ofthe action till payment, and with costs. From that judgment thepresent appeal is brought.
The appellants’ counsel contends that, even if the District Judgeis right in holding the appellants liable to the respondent, furtherdeductions ought to have been made from the amount of the claimin respect of other coolies who had died or left the estate.
So far as can be gathered from the pleadings, both the first andthe second defendants-appellants are sued for breach of contract.It is admitted, however, that the second defendant-appellant wasnot a party to the contract, and the evidence shows that, even ifhe had been, he was acting throughout as the agent of the first
201. X. A 933+8 (11/49)
July 24,1911
WoodRenton J.
Periasamy v.The Anglo-AmericanDirect TeaTrading Co.,Ltd.
I J/U )
July 24,1911
WoodRentok J.
Pcruuamy v.The Anglo-AmericanDirect TeaTrading Co.1,Ltd.
defendant-appellant. Under these circumstances, I do not thinkthat the action can be maintained on the basis of breach of contractagainst him. It was argued, however, on behalf of the respondent,that if he had unlawfully induced the respondent's coolies to breaktheir contract with him he would be liable in tort, and that underthe Civil Procedure Code of this Colony there is nothing to preventthose two causes of action from being combined. I do not thinkthat it is necessary to decide this point, which was not fully arguedbefore us as regards the local law, for, in my opinion, the appealmust be allowed on all the other material issues.
There can be no doubt but that under the law of this Colony therelations between employers and their head kanganies on the onehand, and head kanganies and their coolies on the other, are regulatedto a very considerable extent by custom. Where, however, a litigantseeks, as the plaintiff-respondent does in this case, to make hisadversary liable for breach of an implied term added to a contractby custom, he must prove the existence, not only of a bindingcustom, but of one applicable to the particular situation disclosedby the evidence. The substance of the respondent’s case here maybe expressed thus. There is a well-established custom in all theplanting districts in Ceylon by which, when notice is given to a headkangany for the determination of his contract of service, he is entitledto receive from his employer a tundu setting out the total amountof the liability of himself and his coolies. That is the custom, and,as regards this appeal, the only relevant custom, alleged in theplaint, for if the agreement set out in paragraph 7 is to be regardedas an alleged custom at all, it is one directly affecting the relationsof the head kangany to his coolies, and not those of the head kanganyto his employer. Even as between the head kangany and his gang,it. has neither been alleged in the pleadings, nor shown by theevidence, to have any application to such a state of facts as existedin the present case. The appellants in their answer asserted byclear implication that there is no obligation on the employer to granta tundu on the discharge of a head kangany for both himself and hiscollies where the latter refuse to go with the head kangany or tobe paid off from the estate. It was- incumbent, therefore, on therespondent to prove a custom obliging an employer to grant to ahead kangany a tundu for himself and his coolies against thecoolies’ wish, if the evidence established the allegation of fact of theappellants on that point. It thus becomes necessary to ascertainwhat facts have been proved in the present case.
His Lordship discussed the evidence at great length, andcontinued :—
The position of the facts, as disclosed by the evidence, I take tobe this. Through Periasamy’s own absence and default his gangof labourers became disorganised. They were not willing to serve
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. **
him any longer, and at the date when he left Meddegedara estatethey would not have accompanied him, even if Mr. Macrae had givenhim a tundu for his labour force as well as for himself. Under thesecircumstances, was Mr. Macrae bound either by law, or by customor usage having the force of law, to grant him such a tundu as hedesired ? Admittedly, apart from alleged custom or usage, Mr.Macrae was under on legal obligation to grant such a tundu. I donot propose to examine in detail the so-called evidence of customor usage which forms so considerable a part of the evidence in thiscase as well as of the judgment of the learned District Judge. AsI have already said, there is no doubt that to a great extent therelations of employers and employees under the Labour Ordinances(No. 11 of 1865, No. 13 of 1889, and No. 9 of 1909) are governedby arrangements of convenience not to be found in any of theseenactments, and that some of those arrangements may be entitledto be regarded as customs or usages having the force of law. Sofar back as the case of Newman v. Vetanayagam Kangany,1 it waspointed out by Lawrie J. that coolies seldom contracted asindividuals, but are members of a gang bound to kanganies, withwhom the master contracts. In the case of Imray v. Palawasan,1 2Bonser C.J., stated the practice as follows :—
Tt is usual for the gang of coolies (for-there is generally a gang underthe headship of one kangany) to produce to the person with whomthey wish to take service what is called a tundu, which is a writtenmemorandum by the former employer to the effect that he is willingto discharge them from his service upon being paid a certain sum statedin the tundu, being the amount of their debts ; and it was proved tobe the practice that the kangany should give to the new employer apromissory note for that amount after the new employer has paid itto the former employer. It was stated in the evidence in this case, ■and, in my opinion, proved, that these promissory notes are given bythe kangany as security that the coolies would pay that amount by.working it off.
It was held by the learned Chief Justice and Moncreiff J. that solong as the coolies worked on the estate the liability of the kanganyon the note did not arise, although if the coolies ran away or diedthe employer could sue the kangany. In Whitham v. Pitchche MuttuKangany,3 Layard C.j. and Moncreiff J. took special cognizanceof the same custom, and held that so long as there was no severanceof the connection between the kangany’s coolies and the estate thenote could not be put in suit. Moncreiff J. said (itbi supra, p. 298):—
But the moment it becomes impossible to reach the coolies andinduce them to' pay or work off the arrears, the kangany’s liabilitybecomes actual. Here the superintendent took the coolies out of the
1 (2885) 7 S. C. O. 40.2 (1900) 4 N. L. R. 123. 110.
2 (1900 and. 2902) 6 N. Li R. 289.
July 24,1911
WoodRenton J.
Periasamy v.The Anglo-AmericanDirect TeaTrading Go.%Ltd.
( 372 )
Jvhj 24,1011
WoodRenton J.
Periaaamy v.The Anglo-AmericanDirect TeaTrading Co.,Ltd.
defendant’s hands and cut away the grounds of his responsibility. Heexercised the right which he had never lost of dealing directly with thecoolies, and put them under another kangany, from whom he exacteda note for the amount of the defendant's note. By so doing he notonly changed the defendant’s position, but discharged him fromliability.
The law was laid down in similar terms in regard to promissorynotes given by kanganies to head kanganies in Muttiah v. Ramasamy.1I may point out in passing that, under the decisions above referredto, the operation of such promissory notes is suspended so longonly as the relationship between the coolies and their kanganieson the one hand, and the kanganies and head kangany on the other,is not served, and that immediately on such severance, unless itwas produced by the act or the default of the superintendent, hisrights against the coolies themselves and the head kangany wouldbecome enforceable. For the reasons that I have given above, Ithink that the disorganisation of Periasamy’s gang in the presentcase was due to his own conduct, and that Mr. Macrae cannot beheld responsible for the severance of the relationship between himand his gang. The cases above mentioned, therefore, will not helpthe present respondent. On the contrary, so far as they go, theyindicate that where the relationship between the head kangany andhis labour force is broken off through no fault of his employer, theemployer is at liberty to protect himself as best he can by the useof his ordinary legal remedies against the coolies, his principaldebtors, and the kangany who is their surety.
In this connection reference may be made to the evidence ofMr. Macrae —
'In issuing a tundu for a kangany and his coolies, it would be forthe amount shown in my books as due to the estate from the kanganyand his coolies. In this particular case, too, the debt was regarded byme as the debt of plaintiff and his coolies. The invariable custom isto regard such debts as due from the kangany and his gang. The headkangany is surety for the debt. So long as the coolies remain on theestate, I cannot sue the head kangany for the whole amount shownin the promissory note, but only for the sum admitted by the cooliesas due from them. Invariably the promissory note is regarded as asecurity which cannot be sued on, unless the sum is irrecoverable fromthe coolies.
Mr. Bawa, the respondent’s counsel on the appeal, admitted thatthe custom set out in paragraph 4 of the plaint is one that has not inthis Colony received express judicial recognition. It is not supportedby any of the evidence adduced at the trial. Mr. Bawa concededthat it was incumbent upon him to establish a custom applicableto the situation in which Mr. Macrae found himself. That situation.
'■{ms) 6n, l. n. m.
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according to the evidence, as I interpret it, was one in which he hadto deal with a labour gang completely disorganised owing to thefault of Periasamy himself, refusing to work under Periasamy anylonger, and insisting that they should be allowed to remain on theestate. There is not in the record a scrap of evidence showingthat, by any custom or usage having the force of law, it was Mr.Macrae’s duty under such circumstances to give Periasamy a tunduapplicable both to himself and to his gang. It results from theevidence that the custom is for the head kangany to provide thelabour force; that he signs a promissory note in favour of the estatefor the amount of the advance ; that, similarly, each of the sub-kanganies gives to the head kangany a promissory note for theamount of the indebtedness of his own group of coolies to himself ;that the estate deals ordinarily with the head kangany alone ; andthat so long as his coolies are working on the estate, his promissorynote in favour of the estate is not enforced. It was of these generalcustomary relations alone that Mr; Macrae was speaking in theearlier portion of his evidence. “I have so far,” he says, “ beenexplaining the general relation of the estate to the head kangany,but without specific reference to the present case.” I am not, ofcourse, concerned at present with the changes introduced into thelabour laws of Ceylon by Ordinance No. 9 of 1909. I am speakingonly of the custom apart from that Ordinance. The weight of theevidence recorded in the present case shows that a tundq, is notgiven for the total amount of the kanganies’ indebtedness to thehead kangany where the amount of that indebtedness is in dispute.The evidence of Mr. Macrae, as quoted by the District Judgehimself, is to this effect:—
The amount must be agreed upon, otherwise I would refuse a tundu.Unless a cooly admits the amount stated by the kangany, I would notordinarily give him a tundu.
Mr. Ash says on that point that if the sub-kanganies did not ownup to the figures as supplied by the head kangany, he would inexceptional cases allow them to leave. Periasamy does not himselfallege that the custom was different. His evidence is as follows :—
The coolies I ongage cannot leave without paying my claim. That
is the custom, and my coolies understand that If I were
leaving an estate with my gang, and ten people declined to go with me,
* and the superintendent were willing to retain them,- he must pay theirdebt to me.
A cooly wishing to leave must get his account from me, and get atundu from the superintendent for the amount as given by me. If hebrings the money the man can go. That money is credited to theadvance. If the cooly does not admit my claim, the accounts will bogone over again.
July
Vooi>Kextox J.
Periasamy v.The Anglo-AmericanDirect Ten.Trading Co.,Ltd.
( 374 )
July 24,1911
WoodRenton J.
Periasamy v.
The Anglo-AmericanDirect TeaTrading Co.,Ltd.
Again :—
If I and my coolies want to leave, we get a tundu for the amount dueto the estate. The superintendent would not give us a tundu for alarger sum than the actual debt.
If coolies desiring to leave do not admit my claim, we will go to thesuperintendent and produce our documents and settle the matter. Thatis the custom on some estates, not on others. It was not the customon this estate. On our estate the matter would be discussed andreferred to the oath. If we cannot settle the matter, we will have togo to Court. That is, to find out the correct amount. In such a caseno tundu will be issued. If the matter is not settled, the cooly will notbolt. But the dishonest man will give notice. Coolies do bolt. Thedishonest do. If he leave with notice, I can only sue him to recoverthe debt.
The only evidence to the contrary was given by Naiaken, one ofthe appellants’ witnesses, and by Suppaiyah Kangany, a witnessfor Periasamy. Naiaken says :—
As a matter of fact, I cannot leave without paying the debt. Thesuperintendent will not give a tundu for less than the head kanganyclaims.
Suppaiyah’s evidence is this :—
They cannot leave the estate without paying off my debt. Theyoaxmot be transferred to another head kangany without my consent,if they want to go to another estate and leave me, the accounts must belooked into with the coolies. That is taken to the superintendent, andhe will give a, tundu for that amount. If there is a dispute betweenthe cooly and me, the superintendent will take the word of the headkangany. If the matter is not settled like that, the tundu will not begiven.
Suppaiyah supplemented this evidence in cross-examination :—
If (the coolies) wish to leave, the accounts must be looked into anda tundu given. He must give a tundu. He cannot refuse. If he does,
I do not know what will happen If the coolies dispute the
amount of my claim and ask for a tundu for their amount, the tunduwill be given for the actual amount due.
It is by no means clear to my mind that Naiaken intended to sayanything more than that he was bound to pay the real debt dueby him to the head kangany, whatever it was. The evidence ofSuppaiyah is obviously inconclusive on the point. At qne momenthe speaks of the superintendent taking the head kangany’s word.In the next he says that if that course is not adopted, the tunduwill not be given. Then he does " not know what will happen.”Finally, we are told that the tundu will be given for the actualamount due. Even if these two witnesses had given unequivocal
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and positive evidence in support of the existence of such a custom,it could not outweigh the evidence of Mr. Macrae on the one handand of Periasamy on the other, showing that a tundu is not givenwhere the amount of the indebtedness of the head kangany isin dispute, and that the actual amount of the debt must first beascertained, either to the satisfaction of both parties or by legalproceedings.
I may refer at this point for a moment to the strictures passed bythe learned District Judge on the course taken, in the first instanceby Mr. Macrae, and Mr. Pattle, and later on by Mr. Macrae andMr. Ash, in accepting from the kanganies promissory notes for theamount of their indebtedness. It appears that, after Periasamy’sreturn from jail, promissory notes were signed in a number ofinstances for the amount originally shown in Periasamy’s books tohave been due, but at first disupted by the coolies. The learnedDistrict Judge severely condemns the conduct of Mr. Macrae, Mr.Pattle, and Mr. Ash in having accepted from them at an earlierstage notes for less than the indebtedness ultimately admitted.“ I consider,” he says, “ the second accounting by Ash nothingmore or less than a large bribe to induce the plaintiff’s gang to staybehind.” Mr. Macrae’s “ tactics ” he contrasts with those of theunjust steward, who, by a similar fraudulent device, made for him-self friends with the mammon of unrignteousness. I do not intendto quote the District Judge’s observations on this part of the caseat length. They appear to me to be founded on an inaccurate andperverted view of the evidence. I have pointed out in an earlierpart of this judgment that neither Mr. Macrae nor Mr. Pattle—andthe same observation applies to Mr. Ash—was asked a single questionin cross-examination which could lay any foundation for the DistrictJudge’s censures. Pachchi Muttu Kangany in cross-examinationstated that Mr. Ash had declined to make out his note for the fullamount that he admitted. Mr. Ash was not questioned as to thisincident, and the District Judge says that he “ refused to believe it.”There is nothing in the evidence of any of the other witnesses toshow that they were acting in bad faith, or with any desire exceptto deal with the difficult situation in which they found themselvesfairly, honestly, and in the best interests of all parties concerned.
I have referred to the question of the accounting here for thepurpose of quoting an observation made by the learned DistrictJudge in regard to the alleged custom above referred to. ‘‘Herewas the superintendent,” he says, “ offering to take promissorynotes from them ” (the coolies) “ at their own reckoning, in spite ofthe admitted custom that it is the head kangany whose word mustprevail if no settlement can be arrived at.”. I may remark in passingthat the evidence shows that it was Periasamy’s gang, and not thesuperintendent, that took the initiative in the matter, and thatevery reasonable effort was made by Mr. Macrae and his assistants
July 24,1911
WoodRenton .J.
Periasamy v.The Anglo-AmericanDirect TeaTrading Go.,Ltd.
( 376 )
July 24,1911 to get promissory notes for sums as nearly as possible identicalWoodwith the actual debts. But that by the way. The point of import-
Renton J. ance is to note the District Judge’s assertion that there is anPeriqsamy v. " admitted custom ” by which the head kangany’s word must pre-^meWcan va*l ^ no settlement can be arrived at. The existence of any suchDirect Tea custom is disproved by the evidence. Mr. Bawa strenuously arguedTra4Ttd C° * ^at’ even ^ ^e had not established the precise custom pleaded inparagraph 4 of the plaint, he was entitled to show, and had shown,the existence of a custom by which, if the superintendent of anestate declined to grant to a head kangany a tundu for himself andhis coolies, he was bound if he allowed the coolies to remain on theestate, to pay over to the head kangany the whole amount of theirindebtedness to him, even if it was in excess of the amount, of thehe&d kangany’s indebtedness to the estate. No custom to thiseffect was pleaded, or formed the subject of an issue, at the trial,or is dealt with in the evidence, unless an allusion to it is to befound in the passage cited above from Periasamy’s re-examination,in which he says that on his leaving the estate the superintendentmust pay the debts due to him by any coolies who declined to gowith him before continuing to employ them. It would be unfairto the appellants to allow a plea, the decision of which obviouslymust be entirely dependent on viva voce evidence, to be raised forthe first time in appeal. The respondent must be restricted to thecustom which he has set up in his plaint. I may add, however,that in 211 D. C. Kandy, 18,580,* the alleged alternative customreferred to by Mr. Bawa was dealt with by Lasceiles C.J. andMiddleton J., and was held not only not to have been proved, butto be manifestly unreasonable. “ The proprietor,” says LasceilesC.J., “ has no control over the advances made by the head kanganyto the sub-kanganies, and he could not equitably be held responsiblewhen the amount of these advances exceeds the head kangany’sdebt to himself.”
On the whole case I hold that no custom or general usage of thekind alleged in paragraph 4 of the plaint has been proved. Evenif such a custom had been proved, it would, in my opinion, be anunreasonable one, in view of the state of the law in Ceylon as towhat the grant of a tundu implies. In Walker v. Cooke1 Sir JosephHutchinson CJ. and Middleton J. held that a planter who issues atundu undertakes, not merely that he will discharge the indebtednessof the coolies to him and leave them free to go, but also that thecoolies are willing to transfer their service to another employer.In the present case Mr. Macrae was not in a position to give anysuch undertaking, and it would be unreasonable that he should becompelled to incur what might be a heavy legal liability to a thirdparty by giving it.
1 S, C. Min,, May 18 i 1911 [reported later).
2 (1910) 14 X. L. R, 101.
I 377 )
Periasamy’s claim for Rs. 464—his alleged advance to Velu’sgaog—relates to a debt due to him, not by the estate, but by thegang ; and in view of my interpretation of the facts of this case, and ofthe law applicable to it, 1 think that he is not now entitled to recoverthat sum. The same observation applies to any claim for headmoney or commission subsequent to August 13, 1910. I have care-fully considered the question whether Periasamy ought to be creditedwith the amount of the head money admittedly withheld from himfor the months of February and March, 1910. During the argumentof the appeal we invited counsel on both sides to arrive at an agree-ment as to what the amount, if allowed, should be. The appellants’counsel has estimated it at Rs. 131,80, and this estimate has beenaccepted by counsel for the respondent as correct. Mr. Macrae’sevidence, however, shows that while a head* kangany in charge ofseveral divisions of an estate is entitled to head money and com-mission in respect of the coolies working on all the divisions, evenif he is himself actively supervising the work on only one of suchdivisions, he has no right to head money and commission where,as was the case with Periasamy, he was doing no real supervisionat all. 1 would therefore disallow this claim also.
If I come to the conclusion that the decision of the DistrictJudge in this case as to the liability of the appellants to the re-spondent should be affirmed, the deductions that he has madefrom the total amount claimed by the respondent would have had,1 think, to be increased. The learned District Judge deductsRs. 2,500 in respect of kanganies who had either bolted from theestate, or whose claims had been settled. The names are asfollows :—
Its. c.
Sollaznutrtu, settled 437 10
Veerama Vefcfcy, bolted 737 58
Malwan, settled.. 152 19
Vengadasalam, irrecoverable 917 47
Tarobu, paid off.. … 123 92
Tirnvengadam, bolt* d 218 25
Sainyel, paid off 91 63
2,698 14
There is thus a slight increase to be made in the total as regardsthe kanganies whose claims are dealt with by the District Judgehimself. Allowances also would have to be made in respect ofArumugam, who was sent to India by the respondent himself, andwhose debt is Rs. 579.10 ; of Veerasamy, who is said in Mr. Pattle’sletter (G S 24) to have died in 1896, and whose debt is Rs. 171.42 ;of Nallu, who bolted, according to the respondent himself, two years
July 24,1911
WoodRenton J.
Periasamy v.The Anglo-AmericanDirect TeaTrading Co.,Ltd.
( in )July 24,1911 before the trial, and whose debt is Rs. 130.62 ; of Kanthan, who hadWood been dead, according to Mr. Macrae, for a number of years, andRenton J. whose debt is Rs. 140*10, of Mariappen, who had bolted accordingPeriammyv. to Mr. Pattle G S 24), and whose debt is Rs. 730.62 ; and ofTAmeriwn Kanthan, w^° *s a^° dead, according to Mr. Pattle (G S 25), andDirect Tea whose debt is stated by the respondent in the schedule to his plaintat ^s* 572.56, although Mr. Pattle in G S 25 says that it is nowonly Rs. 538.46. Mr. Pattle’s letters were put in and read at thetrial as part of his evidence, and none of his statements as to thekanganies above mentioned were challenged, so far as 1 can see, incross-examination. The same observation applies to Mr. Macrae’sstatement as to the death of Kanthan. We were urged by Mr. deSampayo to make deductions also, if we should be adverse to himon the main issues raised by the appeal, in respect of Kengan, whois admitted by the respondent himself to have bolted, and whosedebt is Rs. 454.41, and of Saibu, who is dead, and whose debt isRs. 991.12. I should not, however, myself have been disposedto make these allowances, since the respondent stated in his evi-dence that, although Kengan had bolted, his gang was still on theestate, and that, although Saibu was dead, he was representedby Pambyan. It is unnecessary, however, to give any formaldecision on the question of further deductions, as the respondent’saction must, in my opinion, be dismissed with all costs here andin the Court below.
As we are allowing the appeal, 1 have thought it right to analysethe whole body of the evidence, and to examine every point madeon behalf of the respondent in the District Court and at the argument. before us. I cannot but feel, however, that if in the court of firstinstance the real questions in dispute between the parties had beenraised, as they might have been, by a few simple issues, and ifevidence irrelevant to those issues had been rigorously excluded, agreat economy of valuable public time might have been effectedboth at the trial and on the hearing of the appeal.
Grenier J.—
The main questions involved in this case are not many, althoughthe trial in the Court below occupied eight days, and the argument.in appeal, which was exhaustive, and in some parts interesting,nearly four days. There is a mass of evidence in the record-whichI have found very difficult to follow in connection with the nineteenissues which were agreed to. A great deal of the evidence appearsto me irrelevant and pointless, but I have carefully thought out thewhole case in all its bearings since the argument, and I shall try toput the matters really in issue between the parties as clearly as Ican, and then state riiy conclusions.
( 379 )
The action is framed in contract, and not in tort. That is the July 24,1911first thing that strikes one on reading the plaint. The plaintiff is a gbenter J.
head kangany—a term well understood in planting districts. The .
first defendant is the Anglo-American Direct Tea Trading Co., Ltd., Th^lnglo.’and the second defendant is Mr. N. F. Macrae, the superintendentof Meddegedera estate. Stated briefly, the plaintiff’s case was Trading Co.,that about fourteen years ago it was agreed between him and Ltd-the defendants that the defendants should employ the plaintiff onMeddegedera estate, and that the plaintiff should serve the defendantsby himself as kangany and by his coolies as labourers. The termsof the employment are not stated in the plaint, but the plaintiffsays they were well known and understood, although 'there was noexpress agreement in respect thereof. The absence of any specificaverment embodying essential particulars as to the terms of theemployment renders it extremely difficult, if not impossible toascertain the real foundation upon which the plaintiff’s case rests.
If the terms were well known, I cannot understand why they shouldnot have been stated. In the 4th paragraph of the plaint referenceis made to the tundu system, for which the plaintiff claimed recog-nition on the ground of well-established custom ; and in the 5thparagrar* the plaintiff alleged that he and his coolies served on theestate till July 13, 1910, when the defendants dismissed the plaintifffrom their service as and from August 13, 1910, and refused to givea tundu to him and his coolies. The plaintiff’s cause of action isstated in the 6th paragraph of the plaint as 1 understand it. Hesays that (1) because the defendants did not allow the plaintiff toserve on the estate, (2) because they refused and neglected to givehim and his coolies a tundu, (3) because the defendants incited andpersuaded the plaintiff’s coolies to remain on the estate in breach oftheir agreement with the plaintiff as set out in the 7th paragraph,the plaintiff—I am quoting from the plaint—“ has lost all benefitsand advantages derivable through the said coolies, was preventedfrom recovering from the said coolies the debts due from them tohim, aggregating according to the particulars given in the saidschedule to a sum of Rs. 23,034.12, and has been greatly prejudicedin his chances of obtaining employment as a kangany.” The 7thparagraph of the plaint refers to an agreement between the plaintiffand the coolies, which, primd facie, cannot, in my opinion, affect therelations between the defendants' and the plaintiff, whatever theobject may have been with which the agreement was pleaded. Itis not pleaded as founded upon any. custom, nor is the slightestreference made to it as an.agreement in any way binding on thedefendants. The 8th paragraph of the plaint contains a claim forhead money, and the 9th paragraph a claim for Rs. 464, which theplaintiff says he advanced to one Velu Kangany at defendant’s requestTo this plaint the defendant’s answer substantially was that onJuly 13, 1910, the defendants, for lawful reason, gave notice and
( 380 )
July 24,1911
Grenier J.
Periu-aamy v.The Anglo•AmericanDirect TeaTrading Go.,Ltd.
determined the contract of service of the plaintiff as from August 13,1910 ; that the second defendant as superintendent refused togrant a tundu to the plaintiff, as the coolies in plaintiff’s gang madeno request therefor, but refused to be paid off from the estate. Thedefendants denied that the plaintiff was prevented from recoveringfrom the coolies any debts alleged to be due to the plaintiff. It isnot necessary to go into other parts of the answer, as they do notseem to me to contain substantially anything more than I havestated above, except that the defendants have generously waivedin favour of the plaintiff a sum of Rs. 1,584-93, to which theyalleged they were entitled in reconvention.
Upon the pleadings, therefore, certain issues, simple in theircharacter, arose for determination. The plaintiff’s action wasbased on a contract of service made fourteen years ago, the terms ofwhich were undisclosed, but stated to be well known and understood.The plaintiff complained that the defendants had illegally terminatedthat service, and had, by violating a well-established custom relatingto the issue of tundus, and by inciting and persuading the cooliesto remain on the estate, prevented the plaintiff from recoveringfrom his coolies, who were in his debt, a sum of money aggregatingRs. 23,034-12. It is to me amazing, with my experience in courtsof original jurisdiction, how from pleadings like those in this casenineteen issues could have been evolved. I note they were agreedto by counsel, but my amazement is not lessened on that account.It is not only the number of the issues which seems extraordinary,but the length of the trial, and the immense mass of useless evidencethat was allowed to be placed before the Court on both sides. Asatisfactory consideration of the evidence has been rendereddifficult by the rambling nature of the examination and cross-examination of several of the witnesses, although I have spared nopains in trying to separate relevant from irrelevant matter andgetting to the heart of the case.
The learned counsel for the respondent struck, I think, thekeynote of the case, when he submitted that the plaintiff and hiscoolies should not be considered as separate and distinct individuals,but as constituting one single legal entity, possessed of a bundle ofrights, which it always carried about in its occasional migrations,aided by a tundu, from one estate to another. These rights did notarise from any express contract with employers of labour, but werefounded on well-established and inveterate custom (such as shouldbe recognized as having the force of law), which was binding on suchemployers to the extent that they could not in any circumstancesdischarge a head kangany without paying the debts due by thecoolies to him. This was a very intelligible presentation of theplaintiff’s case, and it seems to me that unless the plaintiff succeededin the Court below in proving such a custom, he was not entitled tojudgment in this action. This was the foundation of the plaintiff’s
( 381 )
present claim, giving the plaint the most favourable construction Ican, and a simple issue could have been framed as regards the legalliability of the defendants to pay the kangany the debts due to himby his coolies. I shall take it, therefore, that this was the firstquestion that arose for determination. The whole of the evidencewas read to us at the argument, and my brother Wood Renton hascarefully analysed it, but I can find absolutely nothing in proof ofthe alleged custom. Indeed, such a custom would serve to destroythe fundamental rights with which the law invests every cooly whohas a legal status, and introduce him to a state of unmitigatedslavery ; it would reduce him to the condition of a mere inanimatechattel, which could be carried about from one estate to another atthe will and pleasure of the kangany. The alleged custom is onesubversive of all claims on the part of the cooly to be treated as afreeborn citizen, and no modern sytsem of jurisprudence that Iknow of will countenance such a degradation even in his case. Thelabour laws in force in this Colony expressly recognize his right toenter into direct contractual relations with the proprietors of estates,and I would, therefore, unhesitatingly repel the contention foundedupon custom, even though it could be supported by any evidencein the record. The cooly can sue his employer for wages due to him,the kangany can sue the cooly for any debt due by him on accountof advances, and the proprietor can sue the kangany in respect ofadvances made to him. But to say that by custom which has theforce of law the proprietor, when the kangany, who stands in thesame contractual relation with the former as the cooly, is dischargedupon proper notice, is bound to pay the cooly’s debt is a propositionwhich has to be established by clear and conclusive evidence, andsuch evidence there is not in this case.
Then, it seems to me, that the next question if it was,necessary to entertain it, was whether there is a well-establishedcustom in all the planting districts in Ceylon, that when noticeis given to a kangany for the determination of his contract ofservice, or such determination is otherwise decided upon, he isentitled to a tundu setting out the total amount of the liabilityof himself and his coolies, and stating that on receipt of suchamount his coolies will be discharged from the employer’s estate,and the kangany is entitled on payment of such amount to havehis coolies discharged from the employer’s estate (see paragraph 4of the plaint).
I am prepared to concede the existence of such a custom, but thequestion is whether it is of so absolute a character that in anycircumstances and under any conditions it can be enforced andmust be observed. The tundu system contemplates and providesfor a state of things which allows of its easy application without inany way prejudicing the rights and obligations of cooly, kangany,and proprietor. It is a system apparently founded upon mutual
30-
Jtilt/24,1911
Gkcnieh J.
Periasamy v.The Anglo*AmericanDirect- TeaTrading (Jo.ffJ/L
( 382 )
July 24, ioii concessions and an intelligent understanding of the liabilities oftiiunoBH J. the parties concerned. But may not there be present certain
. circumstances for the existence of which the kangany is responsible
^The ^Atigio- where it would be impossible to apply the system ? Is the kanganyAmerican entitled to ask for a tundu, where by his own conduct and course, ofTrotting Co., action he has rendered its issue absolutely impracticable ? In suchtm. a case it seems to me that the custom cannot be invoked, becauseit is incapable of observance. The facts show that the coolies hadbeen deserted, although involuntarily, by the plaintiff for sometime. He had been arrested on a civil writ, and had sufferedincarceration for some considerable period. In consequence thelabour force of defendant’s estate was thoroughly disorganized, andrequired careful, generous, and discreet handling. All this thecoolies received from the second defendant and his Europeanassistants. When the plaintiff came out of jail, he appears to havebeen treated with much consideration by these gentlemen, who hadin the meantime done their best to secure to the plaintiff the debtsdue to him by his coolies. Document G S 4, dated January 22,1910, which was signed by the plaintiff, affords the strongestevidence possible of his relations, which were stated to be nominal,with the coolies in his gang, and his willingness to give the superin*tendent promissory notes in his favour signed by the coolies andsub-kanganies to cover the total amount of his indebtedness toMeddegedera estate. He admitted that the estate books containeda correct account of his indebtedness. I entirely disagree with theDistrict Judge’s finding, that when the. plaintiff signed G S 4 hedid not know what the contents of it were. To my mind theevidence is overwhelming, and of a perfectly unimpeachable.character. The District Judge has employed much subtlety indissecting the evidence, but I require a great deal more than thereasons he has given to convince me that Mr. Macrae, who is aJustice of the Peace and an Unofficial Police Magistrate for thedistrict, has committed wilful perjury in respect of documentG S 4, or any other document he has spoken to as having beenwritten at his instance and signed by the plaintiff.
Next, we have document G S 5 signed by the coolies and sub-kanganies on Meddegedera estate, whereby they repudiated theplaintiff as their kangany, and begged to be allowed to work underthe superintendent, either on estate account or in gangs, as mightbe arranged later on. I have not the slightest doubt that thisdocument was signed by the persons whose names appear in it,that it was explained to them, and they understood the contents.Here, again, the District Judge’s finding that the signatories did notknow what the nature of the document was that they were signingis not justified by the evidence, and his suspicions that the documentwas either not correctly dated or was fraudulently antedated arepurely imaginary.
( 383 )
We have, therefore, these two documents before us—there areothers which it is not necessary to refer to for our present purpose—which unmistakably show that the situation brought about by theplaintiff with his -coolies was such that it entirely precluded theissue of a tundu. The coolies had elected to take service under thesuperintendent The plaintiff had in a manner disowned his coolies,who preferred to remain on the estates instead of going away withhim, and in these circumstances, how was it possible for the plaintiffto insist on a tundu, and how was it possible for the superintendentto issue a tundu ? There was no custom alleged or proved to meetsuch a situation, and, indeed, I cannot conceive of any custom whichwould adequately deal with it without infringing on the personalrights and liberties of the coolies. They could not be bodily removedfrom the estate by the plaintiff, and they were free to exercise theirown judgment and discretion as to whether they would remain onthe estate or not. This is what Mr. Macrae says : “ I told him(the plaintiff) to leave by August 13. He asked for a tundu forhimself and his coolies. 1 refused a tundu, as his coolies hadelected to leave him. I would have given a tundu for himself.”I unhesitatingly believe Mr. Macrae’s evidence on the point. Theplaintiff’s action, founded upon the tundu system, thus completelyfails.
The third and last question, 1 take it, would be whether thedefendants incited or persuaded the coolies to remain on the estate.Mr. Macrae swears that the coolies complained to him that theywere swindled by the plaintiff. He also swears that the coolies didnot remain on the estate on his instigation. It is to me incompre-hensible how the District Judge came to answer this questionin the affirmative. The weight of the evidence and all theprobabilities of the case point to a free and voluntary electionby the coolies to remain on the estate. It was to their intereststo remain, instead of being any longer under the control of a manwho, although he was, according to the District Judge’s finding,a good Hindu and scorned intoxicating drinks and tobacco, wasunscrupulous enough not to pay his debts, but to go into civilimprisonment.
These three questions that I have stated above fairly exhaust,
1 think, the whole of the plaintiff’s case, and, in my opinion, hemust fail in respect of every single one of them. The trial andthe evidence might have been considerably curtailed with advantageto both sides I cannot help remarking that the letter of demandsent by the plaintiff’s proctor was couched in such offensive languagethat it is not surprising that Mr. Macrae took umbrage at it andterminated plaintiff’s service as he was entitled to do. The lettercontains several misstatements, and in one portion of it refers tothe accounts entered by Mr. Macrae in his pass book as being false.It was written by a proctor in Colombo, who does not appear to
July 24,1911
G&enier J.
Pariaeamy v.The Anglo-AmericanDirect TeaTrading Go.,Ltd.
( 384 )
Mff U, 1011
Ojkk^ikk J.
Periasamy v.The Anglo-AmericanDirect TeaTrading Co.,Ltd.
have taken any trouble to find out whether the plaintiff was makingtrue or untrue charges against Mr. Macrae.
I have avoided referring to the evidence at length, as my brotherWood Renton has considered it very carefully and in detail. Ihave not particularly touched upon the subject of second defendant’sliability, because, in my opinion, the plaintiff has entirely failed toshow that he has any claim against either defendant founded uponany custom having the force of law which he has succeeded inproving.
The judgment of the Court below must be set aside, and theplaintiffs action dismissed with costs in both Courts.
Appeal allowed.