013-NLR-NLR-V-10-ROBERTSON-v.-PERUMAL-KANGANY.pdf
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Present: Mr. Justice Middleton.
ROBERTSON v. PERTJMAL EANGANY.
P. C., Ratnapura, 4,892.
Indian labourer—Imprisonment during service—Period of such im-
prisonmerd when to be deemed as part of the term of service—
Fresh notice—Ordinance No. 11 of 1865, s. 24.
The accused, who was a monthly labourer employed on Wiewel-w»tta estate, gave notice on 3rd July, 1906, and left on 1st August.
was convicted of quitting service without notice under section11 of Ordinance No. 11 of 1866 and sentenced to a term of im-prisonment, which expired on 24th August. He was then chargedwifcn failing to attend on the 26thand26th Augustat the said
estate forworkbeforehis termofservice hadexpired. The
Magistrateordered theaccused togoback andwork another
month and give fresh notice.
Held (reversing the order of the Magistrate) that, as the Magis-trate did not make any onier under section 24 of Ordinance No. Hof 1865 directing that the period of imprisonment should not betaken as part of the period of service, the period of service termi-nated tmemonthfromthe originalnotice, viz., on2nd August,
and that the accused could not be convicted of failing to attendto work an 25th and 26th August.
A. W. Htmt v. Muttan and others (4 S. 0. C. 3) distinguished.
Held, also, that even under section 24 the accused was liableto work only for two more days at his employer’s option.
Middleton J.—If the Magistrate does not make an order undersection 24, the period of imprisonment .must be deemed to be partof the period of service.
A
PPEAL from a conviction with the leave of the Magistrate.The facts sufficiently appear from the judgment*
No counsel appeared.
Cur. adv. vult.
25th October, 1906. Middleton J.— "
The accused was charged with quitting service without due notice,and was sentenced to twenty-one days* rigorous imprisonment.Upon the expiry of this term he was charged again with failingto attend on the 25th and 26th August on Wewelwatta estate towork before his term of service had expired. He had given amonth’s notice on 3rd July and left on 1st August, and. came out *of jail on 24th August.
The Magistrate held that the notice was voided by his quittingthe estate before the full term of the notice had expired, and thatdefendant was bound to give fresh notice. The complainant was
1906.
October 26.
K. A 99907 (8/50)
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1906.
October 25.
Middleton
J.
willing to take the accused back to the estate, and the accusedapparently consented to go, and the Magistrate ordered that heshould go back and* work another month and give, fresh notice beforehe could leave the estate.
The accused appealed, with the consent of the Magistrate, with aview to obtain a ruling in this Court on the question whether theservice had expired by the original notice.
It is clear that in this case the appellant was only bound accordingto bis notice to remain in the complainant's service up to the endof 2nd August.
Section 24 of the Ordinance directs that “ if any servant orjourneyman artificer, having entered into any contract of hire andservice subject to the provisions of this Ordinance, shall, during thesubsistence of such contract, have been imprisoned or have absentedhimself without leave, the Court before which he is tried shall awardthat no part of the period of such imprisonment or of such absence(and which period the said Court is to ascertain by evidence anddefine) shall be deemed or taken to be a part of the period of hisservice, but that he shall be compellable, at the option of hisemployer, to serve for the full period defined as aforesaid for whichhe shall have contracted to serve; and until such extended serviceshall have been completed, he shall be and shall continue subjectto the provisions of this Ordinance. ”
From this section the inference may be drawn, as Clarence J.says in A. W. Hunt v. Multan and others (1), that the Legislaturedid not understand a conviction for quitting service as dischargingthe contract, but in that case no notice had been given.
1 The inference may also be drawn from that section that if theMagistrate does not make such an order, the period in questionwould be deemed to be part of the period of service.
A proper month’s notice, however, under section (3 unquestionablydoes terminate the contract.
In my opinion, therefore (unless the Magistrate who originallyheard this case made an order under section 24), the appellant’speriod of service expired at the end of 2nd August, and unless theMagistrate who heard the original case made an order under section24, the appellant is under no obligation to serve longer.
The only order he could make under that section in thec present-case is that the appellant was compellable to work for two moredays at his employer’s option.
I can see no reason, nor do I know of any authority, for sayingthat a fresh month’s notice would be required.
(1) (I860) i 8. C. C. a
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The servant under the Ordinance is bound to serve during thesubsistence of the service, which in this case terminated by thenotice at the end of 2nd August.
I think, therefore, that the order of the Magistrate in this caseis wrong, and I therefore set it aside.
1906.
October 26.
Mtddxjbtox
J.
Conviction set aside.