089-NLR-NLR-V-16-SOLAMALAY-v.-VYTILINGAM.pdf
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Present: De Sampayo A.J.
SOLAMALAY v. VYTILINGAM.
333—P. C. Panwila, 23,277.
Labour Ordinance, No. 9 of 1909—Liability of superintendent to paywages to coolies—Superintendent not supplied with funds byproprietor■—Criminal Procedure Code, s. 432.
A superintendent or chief person in charge of an estate is boundto pay the wages of the labourers on his principal’s estate, and iscriminally liable if he fails to do so, even though he may not have 'been supplied by his principal with funds.
Section 432 of the Criminal Procedure Code has no application toa conviction for an offence under section 7 of Ordinance No. 9of 1909.
'jpHE facts are set out in the judgment.
Arulmandam, for appellant.—“ Employer ” as defined in section2 of Ordinance No. 9 of 1909 does not include a visiting .agent.The accused was merely a visiting agent, and had nothing to dowith the payment of coolies. It is proved that Tiddy Carthigesersent the statutory declaration about payment of coolies, and wouldappear to have taken all responsibility as superintendent. The actsattributed to the accused are not inconsistent with the suppositionthat he was merely a visiting agent. Being the brother-in-law ofthe proprietress, the accused took more interest in the estate thanan ordinary visiting agent. This fact should not saddle him withresponsibility as superintendent and make him accountable formoneys he never handled. Not a scrap of paper has been producedshowing that the accused had arrogated to* himself the position ofa superintendent. No cheques were signed by accused as superin-tendent. The accused has been wrongly convicted.
No appearance for respondent.
Cur adv. vult.
June 14, 1913. De Sampayo A.J.—
The accused-appellant was charged under section 6 (7) of Ordi-nance No. 13 of 1889, as amended by Ordinance No. 9 of 1909, withhaving failed to pay the wages of the labourers in his employmenton St. John’s Hill estate at JVIadulkele for the month of February,1913, within a month of the expiration of that month. The coolieswere not, in fact, paid within the time limited; but the question iswhether the accused is liable to be prosecuted for the non-payment.
28- L-J. N. 86177 (1/84)VOL. XVI.1*
1913.
IMS.
Db BampasoA.J.
Solamalay t>.Vytilingam
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It appears that St. John’s Hill estate and another estate calledNellicollawatta belong to one Mrs. Carthigeser of Kandy, who is thewidow of accused’s deceased brother. The accused’s case is thatthe superintendent of the estate was one Tiddy Carthigeser, a youngman about eighteen years old, and Bon of Mrs. Carthigeser; and thathe himself was only visiting agent, and had nothing to do with thepayment of wages. The accused, who is the proprietor of Pita-kande Group in Pussellawa, was admittedly superintendent of theseestates for some eight months in 1911, and was succeeded by oneMr. Napier, and subsequently by one Mr. Morley. About September,1912, Mr. Morley gave up charge, and in October, November, andDecember, 1912, the estates appear to have been managed by TiddyCarthigeser and his sister, one Mrs. Vincent of Kandy. Between,these two the estate was a good deal mismanaged; and the state ofthings was so bad that in January, 1913, the accused was asked tosupervise the estate, which he did up to the time of this prosecution.The name by which he . should be called in respect of the duties heundertook is not of much consequence, provided he is the employer ofthe labourers within the meaning of the Ordinance. Section 3 of theOrdinance says that for the purposes of the Ordinance “employer”means the chief person for the time being in charge of an estate andincludes the superintendent. The accused calls himself “ visitingagent,” but is he the chief person in charge of the estate?^Hecertainly does not reside on the estate; but neither did he when hewas admittedly superintendent in 1911. Then, too, he visited theestate once or twice a month from Pussellawa as he does now. Theconductor and kangany of the estate, who gave evidence, say thatTiddy Carthigeser left the estate in December, 1912, and that theylooked upon the accused as the superintendent from January, 1913.He directed their work and paid the wages of the coolies for January,and one of those men even says that the accused came to the estatein January and called all the coolies together and told them he wassuperintendent. The accused admits that he gave orders to theconductor and kangany about their work, and as to the paymentof wages for January; he says he did so in the absence of TiddyCarthigeser, who was ill with a cold. It is quite clear that TiddyCarthigeser was too young and wholly ignorant of estate manage-ment, and hence his mother’s appointment of the accused. It istrue that Tiddy Carthigeser on April 3, 1913, a day before thecomplaint in this case, sent the statutory declaration to the Govern-ment Agent that the wages for February had been duly paid andsigned himself as superintendent; but as another prosecution ispending against him in connection with this same matter, I willsay no more about him. It is strongly argued on behalf of theaccused that he was only visiting agent, and that he took moreinterest than an ordinary visiting agent because of his relationshipto the proprietor of the estate. I quite believe he acted out of
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kindness to the family! and it is his misfortune to be'involved in thisprosecution. Whatever his reasons might have been, however, thequestion is whether he plaoed himself in suoh a position as to beoometiie “ employer " within the meaning of the Ordinanoe, and to beresponsible as suoh. The Polioe Magistrate fully aooepts the evidenceof the conductor and the kangany, and he also believes that theaooused initialled an entry in the oheok roll with regard to theissues of rioe in January. The evidenoe, taken as a whole, leads tothe conclusion tb&t he actively managed the estate during theperiod in question, and had the supervision and disposal of theservices of its labourers, and I think he should be regarded as theohief person in oharge of the estate.
It remains to oonsider whether he is criminally liable for non-payment of the wages of the labourers. In the Full Court case ofDunbar v. Robson,1 the point was whether a superintendent could besaid to take a oooly “ into his service or employment ” so as to beoivilly liable under seotion 20 of the principal Ordinanoe, No. 11 of1865, and incidentally the Court had to consider the questionwhether the superintendent was the person liable to pay the wagesof the ooolies. The Ordinanoe No.* IS of 1889 did not oontain anyexpress provision as to who should pay the wages, and the Courtheld that, notwithstanding the definition of the word 14 employer *'for certain purposes, the common law relation of the proprietor andthe superintendent as principal and agent was untouohed; that theoontraot of servioe of the labourer was with the proprietor throughhis agent, the superintendent, and that therefore it was the proprie-tor and not the superintendent that was liable to pay the wages.But this was before the enactment of the amending Ordinanoe,No. 9 of 1909. Now the substituted section 6 (1) provides that" it shall be the duty of every employer to pay the wages of thelabourers in his employment," &o., and sub-section (7) enacts apenalty for failure to do so. I think these and the various othersub-seotions of the substituted seotion 6 use the word “ employer "in the sense of the definition in seotion 2, and supply what wasfound to be wanting at the date of the deoision referred to. Con-sequently, a superintendent or ohief person in oharge, though he isnot master of the ooolies in the legal sense as deoided in that case,is nevertheless bound to pay the wages of the labourers on hisprincipal's estate, and is oriminally liable if he fails to do so, eventhough he may not have been supplied by his principal with funds.This may be illogical and harsh,but) it seems tp be the intention of theLegislature to oreate such liability. The aooused in this oase proteststhat he had nothing to do with the financial side of the estate, andit is quite evident that his failure to pay the wages of the labourerswas due to the inability or negleot of Mrs. Carthigeser to supplyhim with funds. In my opinion he was rightly oonvioted, but the
i (2906) 6 Tarn. 68.
1M3»
DbSahpaxo
A.J.
golatnafay «.. Vytilingam
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1918.
Db SampayoA.J.
Solamalay v.Vytilingam
circumstances should be taken into consideration in judging of thegravity of the offence. It is just to recognize the fact that theoffence is a technical one by modifying the maximum penalty ofBs. 50 imposed in this case. I affirm the conviction, but. reducethe sentence to a fine of Bs. 10.
I may add that the Police Magistrate, purporting to act undersection 432 (1) (b) of the Criminal Procedure Code, ordered that outof the fine of Bs. 50 a sum of Bs. 25 should go to the complainantkangany as “ compensation for the injury done him.” This sectionof the Code has no application to such an offence as this. Moreover,the Ordinance provides that if the fine is not paid the GovernmentAgent may recover the amount in the manner provided by theMedical Wants Ordinance, and I rather think, though it is notnecessary now to decide the point, that the amount of the fineshould be applied for the purposes of that Ordinance. I set asidethat part of the Police Magistrate’s order.
Varied.