WALKER v. ALAGAN KANGANY

015-NLR-NLR-V-23-WALKER-v.-ALAGAN-KANGANY.pdf


( 60 )
1921.
Present: De Sampayo J.WALKER v. ALAGAN KANGANY.
766—P. 0. Qampola, 3,553.
Labour Ordinance—Failure to attend work—Leaving the estate withoutpermission—Reasonable cause.
In a prosecution under the Labour Ordinance for failure to attendwork without reasonable cause, the accused pleaded that he wasabsent for the purpose of consulting a lawyer and instituting a case,which he did, against the superintendent.
Held, that it was a reasonable cause, and he could not beconvicted.
^| THE facts are fully set out in the judgment.
H. J. <7. Pereira, KJQ. (with him Suntfaram), for accused,appellant;—The accused left the estate for the purpose of consultinga lawyer and instituting a case against the superintendent. Thecircumstances of the case quite justify his absence. His wife hadbeen refused leave to go to the coast for her confinement unlesssecurity was given for her debtfc. Later his attempt to leave theestate by giving notice and obtaining a tund/u was obstructed. Hehad been himself insulted by the superintendent, and assaulted by theconductor in the presence of his coolies. This treatment the accusednaturally resented, and left the estate, though against the expressorders of the superintendent, to have resort to his legal remedy.In fact, on the advice of his lawyers, he instituted a case againstthe superintendent and the conductor on June 30,. and had thesummons served. Thus, his temporary absence from work onJune 29 and 30 was justified, if he were entitled to set the law inmotion against the superintendent. The test should be not whetherthe case instituted by the accused was well-founded or not, butwhether he had a real grievance, for which he had a right to haverecourse to law.
Bwrtholomeusz (with him F. Rajakariar), for complainant,respondent.—Reasonable cause for absence can only be pleaded ifthe grievance be well founded.
In this case the Magistrate has found that the grievance was nota real grievance. Counsel also cited Wyness v. Vembody Kangany(P. C. Avissawella 1,59s).1
1S. C. Min., Sept. 12, 1898.
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September 27,1921. Db Sampayo J.—
This ease toms upon a very interesting and practically importantquestion of law touching the liability of a labourer to be prosecutedfor failure to attend work. The accused was a head kangany onPenrhos estate with a gang of 62 coolies under him. He and hiscoolies had been employed on that estate for about six years. Heappears to have served well' and there was no trouble whateveruntil June 'this year, when the events which culminated in thisprosecution occurred. The accused’s wife belonged to his gang ofcoolies, and appears to have owed the estate Rs. 500 for herself andtwo coolies. Some days before June 27 the accused asked thesuperintendent leave for his wife to go to her mother in the coastfor her confinement. The superintendent refused this application,unless the accused made himself responsible for his wife’s debt.There is a dispute as to what form of guarantee was demanded.The superintendent says that he wanted the accused to. give him awriting promising to pay his wife’s debt if she did not return, whilethe accused says that he was required to deposit cash security ofRs. 500. There may have been some misunderstanding on thispoint, or the accused may now be giving an incorrect version ofthe matter. But for the purpose of this case it is not material todecide this question of fact. It is certain, however, that theaccused took to heart the refusal to give leave to his wife and feltconsiderable dissatisfaction. The wife herself gave a petition tothe Police Magistrate complaining of the refusal to grant leave.There is also a dispute as to whether the accused thereafter askedfor a lufndu or not, but that, again, is unnecessary to decide. Thenext step taken by the accused was to obtain the signature of hiscoolies to a notice to quit service. This was on June 27. Thesuperintendent, having heard of this on June 28, asked the accusedto come with his coolies on the following morning to his bungalow.The accused and the coolies turned up at the bungalow as ordered,and were there paraded. The superintendent addressed thecoolies, and asked those who wished to leave to stand on one side,and those who wished to remain to stand on the other side. About25 coolies expressed their desire to leave, and the others wished toremain. All of them were then ordered to go to their work, andnot to leave the estate without the superintendent’s permission.This proceeding, as might be expected, instead of tending to peace,,brought about a crisis. The accused left the estate th^t day andwent to Hatton to consult a lawyer and institute a case, and, as amatter of fact, he on June 30 instituted the case No. 3,528 inthe Police Court of Gampola (which is the proper Court) chargingthe conductor under section 314 of the Penal Code with assaultinghim, and the superintendent under section 484 with having insultedhim. He came with the summons himself and served on theconductor and the superintendent on June 30. Then on July 5
mi.
Walker v.AlaganKangany
( 62 )
1921.
Ob SampayoJ.
Walker v.AlaganKangany
the present ease was instituted, at the instance of the superintendent,charging the accused (1) with having failed to attend work onJune 29 and 30; and (2) with having wilfully disobeyed the order ofJune 29 not to leave the estate without the superintendent’spermission. The accused was convicted on both charges, and wassentenced to undergo one month’s rigorous imprisonment and topay a fine of Rs. 50, which, if recovered, was to be paid to thecomplainant as compensation. It is not clear whether this com-pensation was to be paid to the superintendent or to Sanji MeeraKangany, who was the formal complainant on the record, nor inwhat manner compensation was due t9 either.
The first question I have to determine is whether, in the circum-stances of the'" case, the accused had “ a reasonable cause ” for hisfailure to attend work on June 29 and 30, for the absence of areasonable cause is a necessary element in the definition of theoffence under section 11 of the Ordinance No. 11 of 1865. ThePolice Magistrate allowed" that to leave for the purpose of consult-ing a lawyer and instituting a case would be a good cause, providedthe case to be a true one. I am unable to accept this qualificationas sound. It happened in this instance that the accused’s caseagainst the conductor and the superintendent was heard before thesuperintendent’s case against the accused, and the Magistrate foundthe charge to be unfounded. But the order of hearing might wellhave been reversed, or the two cases might have been before twodifferent Courts or heard by two different Magistrates, in whichcase there would have been no way of determining, before the caseagainst the accused was heard, whether or not the accused’s caseagainst the conductor and the superintendent was false. Apartfrom this practical consideration, the right of every individual toresort for redress to a Court of justice is paramount, and in myjudgment the Court will not go into the question whether or notthe grievance which induces a servant to institute a case againsthis master is well founded, and make that a test for determiningwhether the servant had a good cause for his temporary absencefrom work. The true distinction appears to me to lie in theservant’s intention. If the servant goes really to consult a lawyerand institute a case against his master, even if his grievance isultimately found not to be well founded, I think there is a “reason-able cause ” for his temporary absence. If, on the other hand, hispurpose is not really to consult a lawyer and institute a case, butthat he makes that pretext for absenting himself for some otherreason, there is no “ reasonable cause.” In the present case thereis no question that the accused’s real and only purpose was toconsult a lawyer and institute a case, which he, in fact, did. Norwas hie grievance wholly imaginary. The parade of the coolies atthe superintendent’s bungalow took place under circumstances inwhich a slight incident would acquire great significance. The
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focused was undoubtedly labouring under a great stress of feeling,in consequence of the refusal of leave for his wife to go to her homein India, and in consequence of the prevention of his attempt togive legal notice to quit. The superintendent’s own description ofthe incident is as follows : “ I told him I had had several thousandooolies under me and several kanganies, and no good Tamil coolyor kangany ever wanted leave without paying his debts; only abad man would try to do that.” The superintendent spoke in Tamiliin the presence of all the coolies. I do not know what expressionthe used for “ bad man.” It is true that the accused is found to havefalsely charged the superintendent with having used some otherexpression which was of an abusive character/ But there wassomething said and done which in the accused’s then irritatedstate of mind probably amounted from his point of view to aninsult. Then as regards the charge of assault against the conductor,the superintendent in his evidence in the accused’s case said thatsome of the coolies hesitated when they were ordered to go to theirwork at once, and that “ the conductor drove them o£E by pushingthem.” The accused’s way of describing this odd course was thatthe conductor “ assaulted ” the coolies, and that he himself was soassaulted. The-Police Magistrate’s finding was that the accused’scomplaint was “ either wholly untrue, or at the best a grosslyexaggerated version of what took place.” In the circumstanceswhich I have mentioned', the accused’s alternative of this findingappears to me to come nearer the truth.
It is rather strange that there is no reported case directly bearingon the point of law I have above discussed. I am indebted, how-ever, to Mr. Bartholomeusz for reference to the judgment ofLawrie J. in Wyness v. Vembody Kangany (P. C. Avissawella,1,593)/- That was also a case in which the accused was chargedwith neglect of duty, and his defence was that he had gone for thepurpose of consulting a legal adviser and of getting a notice to quitwritten to the complainant. The learned Judge considered thatthat was not a reasonable cause, but the specific ground for thisopinion was that a written notice was not necessary, and that if thesuperintendent on application refused leave of absence for having •a notice written, the accused could have given verbal notice. Thatreasoning, however, does not apply to this case. To institute a case. a*d to consult a lawyer for that purpose, it was absolutely necessaryfor the accused to leave the estate. I have not been able to discovera relevant English authority as to what is a “ reasonable cause.”It would appear to depend on the circumstances and on the parti-cular subject-matter. But Bex v. Johnson 2 wilTbe found interest-ing. The accused was indicted for perjury in taking a false oathat the hearing of a County Coroner’s inquisition. The inquisitionhad, however, been held by the Dep/1^ Coroner, in the absence of
> S. O. Min., Sept. 12,1898.*42 L. J. M. C. 41.
1921.
De SamfavoJ.
Walker v.AlaganKangany
■ ( 64 )
,1921. 'the Coroner. The Statute-had provided that no such deputvY dtouM act except during the illness of the Cozener, or during hjJj. ■ absence from any “ lawful or reasonable cause/’ It was argued forfPoiftfiir vacouse^ that the charge of perjury failed because the Coroner
A laganwas not absent from a lawful or reasonable cause. The Coroner
Kanganyhad on medical advice gone on a holiday. It was held that his
absence was from a lawful and reasonable cause, even though hespent three or four days every week in shpoting.
As regards the, second charge against the accused, namely, disobedience of the superintendent’s order not to leave the estatewithout his permission, the considerations I have above mentioned' are equally applicable. A different ruling would lead to a strangeresult, for then a master could effectually prevent a legal proceedingbeing instituted against himself by prohibiting the servant .fromleaving his place of employment.
For these reason^, I think the conviction of the accused ougti£not to be sustained. Jt is, therefore, set aside.
Set aside.
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