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SINCLAIR v. RAMASAMI KANKANI.
P. C., Hatton, 16,987.
Ordinances No. 11 of1865, s. 11, and No. 13 of 1889, ss. 6 and 7—Loans tokankani for procuring coolies—Agreement to repay such loans bywages tamed—Effect of such agreement on (he criminal liability of the.kankani under the Labour Ordinances—Meaning of “ advances.”
Loans made to an estate kankani for procuring coolies cannot bedebited to him in the settlement of wages due to him, as such loans arenot “ advances ” in the sense of the term explained in section 12 of theOrdinance No. 13 of 1889.
Even if there was an agreement between the labourer and hisemployer that such loans should be set off against wages due, it cannothave the effect of making him criminally liable under the Ordinance if.at the time of quitting service, the monthly wages earned by him shallnot have been paid in full within sixty days from the expiration of themonth during which such wages have been earned.
11 iHE facts of this case are folly stated in the judgment of theSupreme Court.
Domhorst and Seneviratne, for the accused appellant.
Van Langenberg, for respondent.
Cur. adv. vult.
10th May, 1895. Lawrie, J.—
The accused, a head kankani, who had a gang of coolies, tookservice under the complainant in September, 1894. It is not saidon what estate he (the accused) and his coolies had formerly served,but it is clear that they owed money, and that the complainantadvanced to the accused Rs. 1,000 to be paid to his creditors, toenable him to clear accounts and to come to the estate. Theaccused gave two promissory notes for these advances of Rs. 1,000.
After the accused and his coolies had been on the estate forabout two months and a half, the accused got a further advanceof Rs. 1,000 from the complainant for the purpose of procuringand bringing to the estate some more coolies ; the accusedsucceeded in getting more coolies, who joined his gang.
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For thin advance of Rs. 1,000 the acoosed gave a third promissorynote. There is evidence, which the Magistrate believed, thatafter the first advances were made, and about the time the lastadvance of Rs. 1,000 was paid, the complainant and the accusedarranged and agreed that “ these loans and advances should be“ repaid in a special way, if the complainant should so desire, via.,“ by accused’s wages as earned being set against them as part pay-“ ment.” On the 1st January, 1895, there was a pay day on theestate, and the wages to the end of October were paid. I under-stand that the accused then received his wages in cash, and thatthe agreement that the complainant might retain them in partpayment of the debt on the promissory notes was not takenadvantage of by him.
At the end of February the accused wished to leave the estatewith all his coolies; the complainant objected. On the 27thFebruary there was a meeting with a Proctor on behalf of thehead kankani, who made an offer to pay the Rs. 2,000, but thatoffer was rejected by the complainant. The accused then leftthe estate, but next day (28th February) he was tried in theHatton Police Court for the offence of quitting service withoutleave or notice, and on the 22nd March he was found guiltyand sentenced to three months’ rigorous imprisonment. Hencethis appeal.
The 7th section of Ordinance No. 13 of 1889, as amended bysection 2 of the Ordinance No. 7 of 1890, enacts that no labourer
shall be liable to punishment for quitting service’without
leave or reasonable cause, if at the time of such alleged offencethe monthly wageB earned by him shall not have been paid infull within sixty days from the expiration of the month duringwhich Buch wages have been earned.
The 6th section enacts that, in computing the amount of wagesdue to a labourer for any period of service, such labourer shallbe debited with the amount of all advances of money made tohim, and with the value of all food, clothes, or other articlessupplied to him during such period, which the employer is notliable to supply at his own expense. The words “ during suchperiod ” are material; old advances may not be taken into con-sideration, only advances or supplies made within the period forwhich wages are claimed and the subsequent sixty days. Here theemployer had paid Rs. 1,000 to the accused in December sub-sequent to the month of November for which the accused pleadshis wages were not paid. Was then the advance of Rs. 1,000 inDecember an advance which can be computed in ascertainingwhether wages were due on the 27tb February ?
( )In endeavouring to fix the meaning of the words “ all advancesof money ” made to a labourer, I hold that an advance is differentfrom a loan. It iB competent to tom to the 12th section of thesame Ordinance to see what there is meant by an advance: it theremeans “ money, food, clothes, or other articles which had been“ advanced or supplied to the labourer as against the wages for“ which he may be suing.”
In Jacob’s case (P. C., Kandy, 15,797, decided on 3rd August,1893), my brother Withers said :—“ My interpretation of the“ Labour Ordinance is that only advances by way of anticipated“ wages can be taken into account in computing what, if anything,“ is due to a labourer by way of wages earned by him at the date“of his committing the offence of quitting service without leave.”*
This is a direct authority which I with confidence follow, butthe complainant urges that by custom, and in this case by specialagreement, the advance of Rs. 1,000 made in December was anadvance to be repaid out of wages to be subsequently earned.
Whatever was formerly the effect of the customary understand-ing that large loans made to,a head kankani were to be repaidout of wages, and that wages could legally be retained in paymentof old advances, I think that customary understanding wascorrected by the Ordinance I have quoted, which enacts that as aset-off to wages shall only be put advances made against wages,not (as I read the Ordinance) advances for bringing coolies andthe like.
The Magistrate rests his judgment indeed entirely on the specialagreement which he holds was made between the complainantand the accused. It is not necessary to decide now what the effectof that agreement would be in a civil case for wages. It surelyhas no effect in a criminal case. If thiB kankani is not liable topunishment under this Ordinance, he has not made himselfliable by this agreement criminally.
His wages for November were not paid to him; more than sixtydays elapsed under the Ordinance ; he was not liable to punish-ment if he then left; he did not render himself liable to punish-ment because he agreed with his employer that he might retainthe wages in payment of a debt: that was an advantage to theemployer, which I assume the employer might gain by, but theagreement cannot bring within the punitive clauses of the LabourOrdinance a man who is not liable to punishment if he had notmade the agreement.
I am of opinion that the accused was wrongly convicted, andthat he is entitled to an acquittal«nd discharge.
Ante, p. 42 of these reports.
SINCLAIR v. RAMASAMI KANKANI