093-NLR-NLR-V-01-SOYSA-v.-APPUHAMY.pdf
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S0Y8A v. APPUHAMY.Additional P. 0Ratnapura, 3,062.
1896.
October 23.
Ordinance No. 11 of 1865, s. 7—Labourer—Contract of service—Quittingservice without leave or reasonable cause—Finding of Police Magistrate.In a prosecution under the Lftbour Ordinance of 1865 against aservant for quitting service without leave or reasonable cause, it isnecessary that the Magistrate should, in the event of a conviction, statein his judgment the capacity in which the accused was employed in thecomplainant’s service, so as to show that his quitting it without leave orreasonable cause constituted an offence against the Labour Ordinance.
Unless some definite term of service is expressed in a writtencontract for hire and service, it will be obnoxious to section 7 ofOrdinance No. 11 of 1865, and the servant cannot be criminallypunished nnder that Ordinance.
rpHIS case was brought up in revision on the application of theAttorney-General. The facts are sufficiently stated in thejudgment of Mr. Justice Withers.
Layard, A.-G. The evidence recorded in this case does notdisclose any offence. There was no formal charge. The com-plaint against the accused is as a labourer under a written contractof service. But the prosecution did not prove the special agree-ment. For some reason or other the contract has not been putforward. It may be outside the Labour Ordinance. In a criminalcase tho terms of a contract cannot be assumed in the absence offormal proof. The proceedings are otherwise irregular. ThePolice Magistrate does not record his reasons for the conclusionshe arrived at.
Morgan, for the respondent. The proceedings must be admittedto be irregular. But the Police Magistrate’s reason for findingthe accused guilty is that he did not resume his service on theestate after his return from jail. He was bound to go back to theestate and leave it with due notice {Hunt v. Muttan, P. C.Ratnapura, 6,545, 4 S. C. C. 3). (Withers, J.—The contract inquestion does not appear to bring the accused within criminalliability. BONSER, C. J.—What is the distinction between monthlywages and daily wages ?) The coolies on such estates are generallypaid on the footing of daily wages earned. (Bonser, C. J.—Thenthey are day labourers.) I think that is the practice throughoutthe Island. (BONSER, C. J.—Then, if he does not work the wholemonth he is not liable to punishment.) As a rule they work aboutfive days in a week. They have to work four days in a week,otherwise they will not receive the usual advance; and if the coolyattends muster every day, the master is bound to provide himwith work. The written contract of service referred to was not
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1895. proved. But I have it with me, and shall read it with YourOctober S3. Lordship’s permission. (BONSER, C. J.—Yon may read it.)
The contract waB read, but it did not appear to be within thepurview of the Labour Ordinance.
Withkbs, j. 23rd October, 1895. Withers, J.—
The question for our decision in revision is whether theconviction of the petitioner in revision can stand.
The accused was convicted of quitting the service of the com-plainant, one J. F. Soyza, without leave or reasonable cause, inbreach of section 11 of Ordinance No. 11 of 1865, and upon thatconviction the accused was sentenced to a term of rigorousimprisonment for a “ fortnight.”
The Magistrate has not stated in his judgment, as he should do,the date on which the prisoner committed the alleged offence.
His judgment is further defective in not specifying the capacityin which the petitioner was employed in the complainant’sservice, so as to show that his quitting it without leave or reason-able cause constituted an offence against the Labour Ordinance.
As the evidence was read out by the Attorney-General (onwhose application the case had been brought up in review), ittranspired that the petitioner was bound to the complainant by acontract in writing, which, if produced, was not proved in theCourt below.
Mr. Morgan, who appears on behalf of the complainant in theseproceedings, has however read out to us the terms of the contractwhich, as a matter of fact, the petitioner did enter into with thecomplainant. Now we know what it was, it seems to us to beunnecessary to send these proceedings back to have the contractformally proved and put in evidence, because it does not comewithin the scope of the provisions of section 7 of OrdinanceNo. 11 of 1865.
That section enacts that—
No contract entered into in this Island for the hire and service of anyservant or jonrneymau artificer for any period of time longer than onemonth shall be valid in law, so as to subject any party thereto to theprovisions of this Ordinance for not performing the same, unless such con-tract shall be in writing, and shall clearly express the terms and conditionsthereof, and shall be signed or acknowledged by the parties thereto in thepresence of a Police Magistrate or a Justice of the Peace, or other personexpressly authorized by the Governor, such Justice or other person not beinghimself the employer of such servant or journeyman artificer, or the agent ofsuch employer. And it shall be the duty of suc]j Police Magistrate, Justiceof the Peace, or other authorized person to see that the contract is fullyexplained to the parties, and to certify on the contract that they fullyunderstand the terms thereof, and are desirous to fulfil the same. And suchoontract, when produced in evidence, and having the certificate of thePolice Magistrate, Justice of the Peace, or duly authorized person as
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aforesaid, shall be primA facie evidence of the matters and things containedtherein. And every such contract shall be executed in triplicate, and itshall be the duty of such Police Magistrate, or Justice of the Peace, or otherauthorized person as aforesaid, to give or cause to be given one copy thereofto the servant, and to send or cause to be sent, within ten days of the execu-tion thereof, another copy thereof to the Police Magistrate of the districtwherein such contract shall have been executed, and in default thereof suchMagistrate or Justice shall be liable to a penalty of five pounds. And thesaid Police Magistrate is hereby required to preserve the said counterpart,and to allow any person who may be interested in the said contract toinspect the same. Provided always that no contract (excepting contractsmade under the 8th section of this Ordinance) for the hire and service ofany servant or journeyman artificer (whether made in Ceylon or in India asprovided by the 9 th-section) shall be valid under the provisions of thisOrdinance if made for a longer period of hire or service than three years.
Now, this clearly implies that some definite time must beexpressed in a written contract for hire and service.
It is impossible to say at what time the contract in questionmay be determined—it may be determined in a week, or it maynot be determined for several years—the object apparently beingto keep the labourer on the estate until he has worked off a sumof money which has been advanced him by his employer.
It is the absence of any express limitation of a term of servicewhich renders the present contract obnoxious to the 7th sectionof this Ordinance, so that the petitioner cannot be criminallypunished for anything he may have done in violation of theprovisions of that contract.
The employer may or may not have his civil remedy, but theLabour Ordinance does not permit him to criminally prosecute aservant who is bound to him under a contract of this description.
For these reasons the conviction Bhould be set aside and thepetitioner acquitted and discharged.
1896.
October 23.WlTHBBB, J.
Bonser, C. J.—1 agree for the same reasons.
Bokbkb, OJ.