’( 305 )
Present : Mr. Justice Wood Renton.
SAUNDERS v. SINNIAH KANGANT.
P. G., Nuwara Eliya, 2,686.
Cooly, wages ■ due to—Non-payment—Desertion—Appropriationin payment
of debt—Expressconsent—Impliedassent—“ Advances ”—Staleness of
prosecution—Ordinance No. 18 of 1889, ss. 2, 11, 6, sub-sec. (8).
Wood Rbnton J.—The wages due to a cooly cannot lawfully beappropriated to the payment of debts due by him other thanadvances, except with his consent, express or implied.
Scavell v. Mootammah 1 and Ogilvy v. Ca-ruppen 2 referred to andcommented on..
The staleness of a complaint is no ground for its dismissal; itonly affects the quantum of punishment.
PPEAL from a uoi!)oiauoo under section 11 of OrdinanceNo. 11 of 1865. The facts and arguments sufficiently appear
in the judgment.
H. J. G. Pereira, for the accused, appellant.
There was no appearance for the respondent.
Cur. adv. vult.
August 31, 1908. Wood Renton J.—
In this case the appellant was convicted under section 11 of theLabour Ordinance, No. 11 of 1865, of having deserted Marigoldestate, of which the complainant, Mr. Saunders, is superintendent,and he was sentenced by the learned Police Magistrate to undergoone month’s rigorous imprisonment. On his behalf Mr- H- J- C-Pereira took a variety of points, some of which are of considerablelegal and general interest. I propose to deal with them in turn.
In the first place, he contended that the prosecution ought tohave been dismissed because of its staleness. The appellant isalleged to have quitted the estate on August 9, 1907, and, althoughcomplainant was aware of his absence, no summons was issuedunder the Ordinance till May 29, 1908. In support of this con-tention, Mr. Pereira referred me to a decision by Mr. Justice Lawriein P. C., Nawalapitiya, 24,726 (S. C. Minutes of September 19, 1898,reported in Browne’s “ Notes on the Labour Ordinance ” at page 51),in which that learned Judge acquitted a labourer on a charge ofdesertion, on the ground that, while he had left his employer’sservice on April 28, 1895, the prosecution against him was not. instituted till March, 1898. With all respect I am unable to followthis decision. Section 444 of the Criminal Procedure Code providestl,at the right of prosecution for any offence, other than that of1 (1906) 9 N. L. R. 83.* (1908) 11 N. L. R. 300.
( aoe )1908.
murder • or treason, shall be barred (only in absence of speciallegislative provision) by the lapse of twenty years from the time ofits commission. If the Legislature propose to amend the LabourOrdinance, it would be, I think, an advantage for both employerand employed if a statutory limit on the presentation of chargesunder that Ordinance were created; but, in the absence of any suchenactment at present, I hold that the staleness of a charge, which ispresented within the period prescribed by the Criminal ProcedureCode, is a ground of which a Court can take account only inestimating the quantum of punishment. 1 find that Wendt J. tookthe same view in Bliss v. Sandai (P. C„ Gampola, 38,4161).
In the second place, Mr. Pereira urged that the evidence showedthat the appellant had been driven away from the estate by the com-plainant himself, and in that connection he referred me to the case of .P. C., Panwila, 14,568, 2 in which Mr. Justice Stewart interpreted thewords “ he told me to go,” used by an employer towards a labourer,,as a direction to quit his service. If it were necessary now to decidethe point, I should not be prepared to hold that the complainantintended, or that the appellant understood him to intend, in thepresent case, to terminate the contract of service.
But on the third point urged by Mr. Pereira, I think he is entitledto succeed. It is admitted and proved that at the time when appellantleft Marigold estate his wages for more than sixty days were overdue,and that they had, in fact, been set off against the amount due byhim on the payment of his tundu. I am clearly of opinion that noset-off of this description comes within the purview of section 6,sub-section (3), of the amending Labour Ordinance, No. 13 of 1889.
I entirely agree with Mr. Justice Withers in the case of Jacob v.Valaiden Kangani,3 and with Mr. Justice Lawrie in the case of,Sinclair v. Ramasami Kangani* that the word “ advances ” in thesection that I have cited refers to advances by way of anticipatedwages, and not to a loan or to a debt due on a promissory note bya kangany in respect of his tundu. There is no evidence in thepresent case that the kangany assented expressly to the appropriationin question. If there had been any evidence of implied assent,it would have been necessary for me to consider whether that issufficient to justify an appropriation under the Labour Ordinance.In the case of Scovell v. Mootammah ? I myself held that impliedassent was sufficient- I understand, however, that in the later caseof Ogilvy v. Caruppen,* for a report of which I am indebted to anexcellent summary of the decisions under.the Labour Ordinance, acopy of which Mr. Akbar has kindly presented to me, and whichI hope will see the light in a more extended and authorized form,it was held by Mr. Justice Middleton that proof of express consent
» 3. C. Min., Feb. 28, 1907.4 (1895) 1 N. L. R. 43.
* (1873-74) Orenier, p. 85.6 (1906) 9 N. L. R. 83.
(1893) 1 N. L. R. 42.* (1908) 11 N. L. R. 300.
in such cases was indispensable. I am not quite clear whetherMr. Justice Middleton intended to go so far as this, for in an earlierpart of his judgment he Bays that he has no doubt that an Indiancooly, not under disability, may consent to an appropriation of hiswages in any form that he pleases- If all that was intended to bedecided in Ogilvy. v. Caruppen1 was that it was desirable for plantersto furnish themselves with proof of express consent, or that theCourts should insist on implied assent being clearly established,I entirely agree with the decision. But if it went further, andenunciated the doctrine that in the absence of proof of expressconsent it is not competent for the Courts even to .look at evidenceof implied assent, I can only say, with the greatest respect, that Ithink that this view of the law is not only not warranted by theOrdinance, which has, indeed, nothing to do with the question, butis contrary both to Boman-Dutch and to English Law. There is,however, r-o evidence of implied assent in the present case.
On tiie grounds I have stated I set aside the conviction andacquit the accused.
SAUNDERS v. SINNIAH KANGANY