078-NLR-NLR-V-12-WHITTALL-v.-PERIASAMY-KANGANY-et-al.pdf
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1909.
August 31.
Present: Mr. Justice Wood Ronton.
WHITTALL v. PERIASAMY KANCANY et al.
P. C., Badulla-Haldummvlla, 3,099.
Contract of service—Requisites of proof—Implied contract—Entr>/ incheck-roll—Advance, of rice—Ordinances No. 11 of 1865, s. 19 ;No. 13 of 1889, s.5.
Requisites of proof in a prosecution under the Labour Ordinance(No. 11 of 1865) indicated by Wood Renton J.
A
PPEAL by the accused from a conviction under section 19 ofOrdinance No. 11 of 1865.
Bairn, for the accused, appellants.
Blaze, for the complainant, respondent.
Cur. adv. indt.
August 31, 1909. Wood Renton J.—
In this case the appellants. Eeriasamy Kangany and a coolynamed Muttusamy, were charged in the Police Court of Badulla-Haldummulla with having seduced a cooly named Kadiran, orSevandari, from the service of Mr. Whittall, in contravention ofsection 19 of Ordinance No. 11 of 1865, and they have both been con-victed and sentenced respectively to periods of three and one mont h’srigorous imprisonment. Two main points were urged by Mr. .Bawaon behalf of the appellants. In the first- place, he contended thatthere was no legal proof showing that, at the time of the allegedseduction, the cooly Kadiravi was bound bv a contract of servicewithin the meaning of section 19 of Ordinance No. 11 of 1865 : andhe argued, in the second place, that, even if that objection fait-d.there was no evidence which established even a primd facie caseagainst the appellants. E agree with Mr. Bawa on the first point.
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But, as I think that a sufficient case in support of the charge has 1909.been made out as regards both appellants, I do not propose to give August ,17.effect to the technical deficiency of proof in the evidence for theprosecution. At the same time, in view of the frequency with which Renton j,this point is raised in appeals under the Labour Ordinance, and ofthe apparent ignorance or indifference, not only of estate superin-tendents, but, in some cases, of their legal advisers in regard tothe requirements of the law as to proof of service, I think it maybe well that I should state in a few sentences once more what thefacta probenda on that point are.
It is essential that the prosecution, which has to discharge theonus of proving a contract of service, where, as here, the cooly allegedto have been seduced is an Indian immigrant within the meaning ofOrdinance No. 13 of 1889, should prove either a verbal contractfor the performance of work not usually done by the day,or by the job, or by the journey ; or, in the second place, awritten contract; or, in the last place, a contract to be implied In-law from the facts that the name of the cooly is entered in the check-roll of the estate, and that an advance of rice or money lias beenreceived by such cooly from the employer. In the present case thereis no evidence of either a verbal or a written contract; and it is-clearfrom the record that the prosecution relied on an implied one. Sc*far as lean see, the check-roll of the estate was not produced, andthere is no evidence showing any advance of rice or money to thecooly in question. I was referred by Mr. Blaze, in his argumentfor the respondent on this point, to the case of P. C.. Panwila,
No. 14,322, reported in Grenier (1873), Parti., p. 45, and he argued,on the strength of that authority, that the words “ bound by anycontract ” in section 19 of the Labour Ordinance would be satisfiedby proof of an agreement to serve, even if the cooly had not in fact-entered on the estate. P. C., Panwila, No. 14,322, is, in my opinion,no authority for that proposition, for in that case there was expressproof of a verbal contract, tod the case was, moreover, decidedlong prior to Ordinance No. 13 of 1889. It has been laid downagain tod again by the Supreme Court that it is necessary for thesupport of a charge of this kind, in the case of an Indian immigrantcooly, that section 5 of Ordinance No. 13 of 1889 should be satisfied,as regards an implied contract, by the evidence of the check-rolland by evidence as to the advance of rice or money. See, forexample, the case of Tringham v. Thewar,1 and there are many otiierauthorities to the same effect. In regard, however, to the sub-stantive question as to whether the charge of seduction was made out,
I have come, after careful consideration, to the conclusion (hat thisquestion must be answered in the affirmative. It Is proved thatthe cooly Kadiravi was sent from Gampaha estate, to which shewas properly attached, to do a day's work on Allagalla estate, in1 I1907) 1 A. r. It.. Sup., in.
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im.
Avgust 19.
WoodRenton J.
which Mr. Wliittall, who is the real complainant here, althoughthe prosecution was formally instituted by his kangany, wasstated by oounsel to have an interest. It was her duty, on the'conclusion of her day’s work, to return to Gampaha. She did notdo so. On the contraiy, on the very afternoon of the day in question,she was seen in the company of the two accused going in the directionof their village. Two of the witnesses asked the first accused-appellant what he was doing with the girl, and his only answer wasto request his interrogator to mind his own business. In addi-tion to all this, there is evidence showing that on two previousoccasions the first accused-appellant Periasamy had endeavouredto seduce this girl from her service. Her father Muttiah speaks tothose facts ; he was not cross-examined in regard to them on behalfof the first appellant, and his story as to one of the alleged pre iOusattempts at seduction is corroborated by Mr. Whittall himself,to whom Kadiravi’s father made complaint at the time. In hisstatutory declaration Periasamy committed himself at the statementthat he did not know the woman, and thereby brought himself intodirect conflict with the witnesses for the prosecution, who speakto having seen Kadiravi in his company on the very day of herdisappearance. Taking all these circumstances together, I am ofopinion that a primd facie case was made out against both theaccused, which it was incumbent upon them to answer, within themeaning of the cases cited by Mr. Bawa from Ameer Ali on Evidence(page 605) at the argument of the appeal. If I turn to the evidenceof Periasamy himself, it is clear, I think, that no satisfactoryexplanation of the case for the prosecution was forthcoming. For,in the first place, he qualifies his statutory declaration by sayingthat the woman Kadiravi was not of the same caste as himself—astatement implying a certain degree of previous knowledge of her—and, in the second place, he in no way either explains or evenexpressly disputes the allegation of the witnesses for the prosecutionthat he was in Kadiravi’s company oft the day in question. It wasimpossible for the prosecution in this case to call the seduced coolyherself, for she has .not returned to the estate or to her father’s housesince her first disappearance, and nothing is known of her where-abouts now. On the-grounds stated I hold that the charge ofsoduction has been made out. I send the case back, however, soas to give the complainant the opportunity of complying with theformal requirement of section 5 of Ordinance No. 13 of 1889 byshowing, if he is able to do so, from the check-roll itself thatKadiravi’s name was entered there on the date of the seduction,and that she had received an advance of rice or money. If thisproof is forthcoming, the appeal will be dismissed. On the otherhand, if it is not supplied, the appeal will be allowed, and theaccused-appellants will be acquitted.
Caw, remittal.