HE facts are sefe out in the judgment.
B. P. Dice (with him Sansoni), for the accused, appellant.—Theaccused had no intention of permanently depriving complainant ofthe services of his servant. Sundays were holidays on the estate,and the coolies were not bound to work on the weeding contract ofthe kangany. They were free to work for pay elsewhere, under thecircumstances. Boss t>. Allagen Kangany, 1 Ma&dcck v. Meydeen. 1
Wadsworth, for the complainant, respondent.—Sundays are notdies non on which the coolies can refuse to work. It was held inTaylor v. CaHinahamy * that it was not necessary that a cooly shouldbe taken into the permanent employment of another in order torender him liable under section 19 of the Labour Ordinance..
Cur. adv, twit.
November 1, 1015. De Sampayo J.—
This appeal raises an interesting point in the'law relating masterand servant. The accused is the owner of a small garden in the
1 Rom. (1875) 80S.2 (1907) 1 Leader 54.
* (.WO) 5 Bal. 25.
( 388 )
neighbourhood of Marakona estate in the District of Matale, 1M&arid on September 5, 12, and 19 last he employed two coolies of Dalta&pifroMarakona estate to work in IQs garden. He has been charged under A,J*section 19 of Ordinance No. 11 of 1866 with having wilfully and Tkomem** «•knowingly taken the two coolies into his service, and he has appealed e£ou6ufrom a conviction on that charge.
The days above mentioned am all Sundays, which it appears areoff-days on the estate and are the usual holidays for the coolies.
In these circumstances the question arises whether it is an offencefor a third person to get any oooly to work for him on a Sunday. Aholiday means that a eooly is free from work and is at liberty to goout of the estate, and the law does not prevent him from occupyinghis time as he may please and from eking out his earnings, if hechooses, by doing some extra work for any one. It is said, however,that weeding work goes on even on Sundays, on contracts taken bykanganies, and that the kangany had in this instance complained tothe superintendent that the coolies did not work on his contract andpreferred to go out. The weeding work on contract appears to bethe business of the kangany, and not to be the ordinary work of theestate coolies as servants of the superintendent. The superintendentsays that the kangany. can employ Sinhalese or any other labour forthat purpose. The kangany may, of course, get the estate coolies towork on his contract, if he can, but such employment would be amatter of choice with the coolies, and it is the kangany who wouldpay for their trouble and not the estate. In my opinion the workwhich the coolies may do on the kangany's weeding contract will notbe work done in the service of their employer, the superintendent, andI think the fact of weeding being done on Sundays makes no materialdifference in the consideration of the point involved in this case.
The real question is, what is the meaning of the expression " takeinto his service M in section 19 of the Ordinance? It is dear thatthe various provisions in that section as to seducing from service,harbouring, and taking into service, import that the person chargedhas done something which has the effect of breaking the cooly'acontract with his employer. See Marshall i). Denison l. When aperson gets a cooly to do some odd job for bim, the result cannotreasonably be said to amount to a breach of the cooly’s monthlycontract of service; and, conversely, the cooly's performance of sucha job is not equivalent to entry into the service of the person whogives the job. To my mind, service " in this connection impliessomething more enduring than, momentary employment of thatkind. Otherwise a kangany who gets a cooly to do weeding workon his contract on an off-day may just as well be held gpilty of takingthe cooly into his service. This point is not devoid of judicialauthority. In Boss v. Allagen Kangany 2 it was held that a kanganywho had taken a cooly away for part of a day for doing some work
' 2 S. C. C. 82.
* Ram (1875) 303.
( 884 )
in his own garden, but had no intentidh of permanently withdrawingSabssayo cooly from the complainant’s service, was not guilty* of seducing®or attempting to seduce the cooly from his employer's service.
S^tomson a $hat was a stronger case than the present, because there the accusedhad taken the cooly away on an ordinary working day. A stallmore <jxeob authority is Maddock v. Meydeen l. There the facts werevery similar to those of this case, with the difference that there also,as in Boss v. Attagen Kangany *, the days in question were mot off-days, but working days. Wendt J. in that case observed:“ I am
very doubtful that proof of employing a servant on yich fitful andisolated occasions, apparently to do odd jobs, will amount to ataking of him into one's service or employment. Surely it must ben permanent taking with the intention and effect of permanentlydepriving the lawful master of his servant's service?" Instancingthe very case of a person employing a cooly to weed his vegetablegarden on the off-days, the learned Judge asked: "Would thatamount to a taking into his service within the meaning of theOrdinance?" He answered the question in the negative, andacquitted the accused.
I am in entire agreement with the above decisions, which, I think,are in accordance both with law and with reason. Mr. Wadsworthfor the complainant has, however, referred me to Taylor v. Garlina-hamy (P. C. Matale 84,174), decided by Grenier J. on May 16.1910. There the learned Judge considered that Wendt J. had notmade a definite ruling that for the conviction of a person it wasnecessary that he should: have taken the cooly into permanentemployment. That may be so, but he quoted, apparently withapproval, the opinion of Wendt J. that the service rendered to theaccused person must at least be shown to be inconsistent with thecontract of serving the prosecutor. Moreover, in the case withwhich he had to deal, the accused had employed the coolies for somedays continuously, and had deprived the complainant of the benefitof their labour. 1 do not think that decision is sufficient to supportthe donviction in this case. With reference to an argument onbehalf of the complainant, it may be conceded that there is no lawdeclaring the Sunday to be a dies non for estate labour,, and if thesuperintendent desires to break through the custom of observing theSunday as a holiday, and requires the coolies to work on that day,
‘ he may well do so, and the coolies will be bound to attend work atthe risk of prosecution. But that does not affect the question ofdisability of a third person who engages a cooly on a mere job whenthe cooly is lawfully off work.
The appeal is entitled to succeed. The conviction is set aside andthe accused acquitted.
Set aside.
1 (1907) 1 Leader 54.
2 Ram. (1875) 308.