087-NLR-NLR-V-02-WELAYDEN-v.-PERUMAL.pdf
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WELAYDEN v. PERUMAL.
P. C.y Rakwana, 12,314.
Master and servant—Quitting service—Indian coolies—Ordinance No. 11of1865, s. 21-—Ordinance No. 13 of 1889, ss. 6 and 7.
Semble, per Lawbie, J., that the provisions of sections 6* and 7fof Ordinance No. 13 of 1889 supersede those of section 21} ofOrdinance No. 11 of 1865 in cases where Indian coolies areconcerned.
1896.
October 23 <fcNovember 10.
rj^HE facts of the case sufficiently,appear in the judgment.
Sampayo, for appellant.Domhorst, for respondent.
*Section 6, sub-section 1, ofOrdinance No. 13 of 1889 :—Thewages of a labourer shall be pay-able monthly within sixty daysfrom the expiration of the monthduring ?hich such wages shallhave been earned, and when suchwages shall be payable at a daily.rate, the monthly wages shall becomputed according to the numberof days on which the labourershall have been able and willing towork, whether the employer may ormay not have been able to providehim with work. Provided thatno employer shall be bound toprovide for each labourer morethan six days’ work in the week.
t Section 7 :—No labourer shallbe liable to punishment forneglecting or refusing to work,or for quitting service withoutleave or reasonable cause, or fordisobedience or for neglect of duty,if at the time of such allegedoffence the monthly wages earnedby him shall not have been paidin full within the period specifiedin sub-section 1 of section 6.
} Section 21 of Ordinance No. 11of 1865 :—No servant or journey-
Vol. n.
man artificer shall be liable* topunishment for neglecting or refus-ing to work, or for desertion,disobedience, or neglect of duty,if at the time of such allegedoffence his wages shall have beenunpaid for any period longerthan a month : Provided alwaysthat in computing the amount ofwages due at any time; suchservant or journeyman artificershall be debited with the amountof all advances of money madeto him, and with the value of allfood, clothes, or other materialssupplied to him, and which theemployer is not liable under thisOrdinance to supply at his ownexpense. Provided also that thefact of such wages being so due asaforesaid shall not affect theliability of such servant orjourneyman artificer to punish -ment under the provisions of thisOrdinance, unless he shall atleast forty-eight hours previously(to the time of such alleged offencehave demanded from his employer. the payment of his wages so due,and the employer shall haverefused or failed to pay the same.
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1896.
October 23 <tNovember 10.
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10th November, 1896. Lawkde, J.—
The appellant was convicted of quitting service without leaveor due warning or reasonable cause ; he was sentenced to fourteendays’ rigorous imprisonment. The Magistrate gave leave to appeal,and'a matter oi law was also stated. Much was said in the PoliceCourt about a registered letter containing a demand for wagesaddressed to the- employer of the accused. It seems to havebeen taken for granted that the document B filed at page 18 isthat registered letter, which the superintendent refused to open.But I find no evidence that B is the letter. Mr. Vandenberg, whocould have.given the best evidence on this point, was not examined.As the writing and sending to the post and the registering of Bhave not been proved, it is in vain to discuss what would be thelegal result had Mr. Stronach received a demand for wages.
The proof does not raise the question of law argued in appealviz., whether the 21st section of the original Ordinance No. 11 of.1865 is still in force as to Indian coolies, or whether it has beensuperseded by the 7th section of the Ordinance No. 13 of 1889. Iwill, however, say that the 6th and 7th sections of the laterOrdinance refer to and deal with the same matters, as the 21stsection of the original Ordinance, and my present opinion is thatwhile the provisions of the old Ordinance are still «in force forservants other than Indian coolies, the law on this matter, as itaffects Indian coolies, is to be found in the provisions of the laterOrdinance, which I think supersedes the Ordinance No. 11 of 1865in cases where Indian coolies are concerned.
I hesitate to agree with the dicta.of Mr. Justice Clarence in thecase of Uenly v. Vellayan, reported in 1 S. C. B. 136, but it is un-necessary to go into that. The appellant has not proved that hemade the demand required by the 21st section of Ordinance No. 11of 1865.