Present: Lascelles C.J.
349—P. 0. Kalutara, 29,759.
Harbouring a deserting cooly—Labour Ordinance, No. 11 of 1865, s. 19—
May assistant superintendent prosecute in offences against the
Labour Ordinance ?
An assistant, superintendent of an estate charged the accusedunder section 19 of Ordinance No. 11 of 1665 for harbouring adeserting cooly. The objection taken in appeal that the com-' plaint should not have been accepted, as it was .made by the'assistant superintendent and not by the superintendent, wasover-ruled.
The proprietor of a tea estate is prima facie a proper person toprosecute. But his daly authorized agents are equally competent forthe purpose.
The opinion that an assistant superintendent cannot makecomplaints of offences against the Labour Ordinances rests on nosolid ground either of principle or of authority.
Hall v. Kandeswamy 1 doubted.fJlHE facts are set out in the judgment.
Wadstvorth, for accused, appellant.
A. St. V. Jayewardene, for complainant, respondent.
1 5 A. C. if. 125.
( 805 )
May 20, 1914. Lascblles C.J.—1W4.
This is an appeal irom theconvictionof the accused undertangen
section 19 of OrdinanceNo. 11of 1865 forharbouring a desertingvJSmmw?
cooly. The principal ground of appeal is that the complaint,being made not by the superintendent of the 'estate, but by anassistant superintendent, should not have been accepted andacted on.
Before referring to the authorities on the point, it may be well toobserve that the definition of the word 44 employer ’’ in OrdinanceNo. 18 of 1889 is not material on this point, as section 19 of OrdinanceNo. 11 of 1865 deals with “ servants or journeymen artificers 11generally, and has nospecialapplicationto Indian immigrant
labourers. Further, the section makes no specific reference to theV employer,M and is silent as to who is the proper person to instituteproceedings under thesection.Inasmuchas it is the person
employing the servant or journeyman artificer who is aggrievedby offences under the section, he is obviously the most naturaland proper person to be the complainant in charges under thesection.
But as the actual employer frequently entrusts the managementof his servants to an agent, the agent, in these cases, is a propercomplainant. The question whether an assistant superintendentin -charge of a division is a ■ proper person to complain of offencesunder section 19 with regard to the labourers in his charge dependsupon the extent of the authority which he has received from hisemployer. In the absence of direct evidence, which is rarely forth-coming on this point, the extent of an assistant superintendent’sauthority must be inferred from his position, due regard being hadto the system under which estates are carried on in Ceylon.
The case law on the point is not in a satisfactory condition. InHall v. Kandeawamy 1 Hutchinson C.J. felt himself obliged by twoprevious decisions of this Court to hold that a prosecution by anassistant superintendent under section 11 of Ordinance No. 11 of1865 was bad, in default of evidence that the prosecution wasauthorized by the superintendent or by the accused’s employer.
I think I am right in saying that the soundness of this decision hasmore than once been doubted. The two previous decisions referredto are Kandeaanty v. Mutamma 3 and Caldera v. Mtdamma.* Inboth these cases the actual question decided was that a prosecution1 by a kftpgftTM is illegal without proof of the authority of theemployer to, prosecute. Neither judgment refers to the positionof an assistant superintendent; neither judgment differentiatesbetween superintendents and assistant superintendents &b regardstheir authority to prosecute under Ordinance No. 11 of 1865.
*5 A. C. R. 125.1 2 N. L. R.71.
* 6 N. L. R. 120.
( 806 )
Fan Lcmgen-berg v.
Fee raeamy
But in Kandesamy v. Mutamma 1 Bonser C.J. stated: ** In myopinion the employer is the only person who can properly prosecutefor offences under the Labour Ordinance, because he is the onlyperson injured.'*
This expression of opinion is of course purely obiter, and goes farbeyond the decision of the question then in hand. But these wordscannot be accepted as a precise and exhaustive statement of law.They were probably never intended to be sd understood.
It seems to have been assumed that by the word “ employer ”His Lordship meant the superintendent of the estate. But thiscannot be the case, for the superintendent is not injured by themisconduct of the labourers. The injury falls on the *“ employer/’using that term in the ordinary sense of the word; on the personwho pays the servants' wages and derives advantage from theirlabour; on the person who, in a case of a tea estate, is the proprietor.
The statement, if I may respectfully say so, obviously ^requiresamplification. The proprietor of a tea estate is prima facie a properperson to prosecute. But his duly authorized agents are equallycompetent for the purpose. It has been generally admitted thata superintendent, in virtue of his employment, is authorized forthe purpose. With regard to assistant superintendents, the truequestion is whether their authority and control over the labourersemployed on their divisions is not. such that they must be presumedto be authorized to take proceedings under the Labour Ordinanceagainst the labourers in their charge. If, as is unquestionably thecase, the assistant superintendent is responsible for the behaviourand discipline ol the labourers on his division, if it is his duty to seethat they carry out the obligations of their contract of service, Icannot doubt that he is the prop'er person to take the proceedingswhich the law allows to be taken to secure these objects. Theextent of the authority of the assistant superintendent mustdepend upon the duties assigned to him.
In my opinion, the opinion that an assistant superintendentcannot make complaints of offences against the Labour Ordinancesrests on no solid ground either of principle or of authority.
The facts of this particular case do not call for much comment.The deserter was missed from the estate on the 14th, and wasarrested * at Alutgama on the 22nd. It was proved that at 6omeunspecified date the. accused was seen with the deserter in a cassavagarden, where they appear to have passed the night, and on the 20ththey went' together by train |rom Alutgama to Ealutara and- backfrom Ealutara to Alutgama. There can be but little doubt that theaccused took the deserter to Ealutara to get the application for atundu, which was in fact forwarded to the superintendent.
The offence I think is clearly proved, and I dismiss the appeal.
* 2 N.L. B. 7J.