086-NLR-NLR-V-51-YAKOOB-BAI-Appellant-and-SAMIMUTTU-Respondents.pdf
1950
Present: Oias S.P.J,, Nagalingani j. and Gratlaen J.
YAKOOB BAJ, Appellant, and SAMIMUTTtJ, Respondent
S. C. 381—D. C. Kandy, M. S. 1,972
Civil Procedure Code {('up. SO)—Ar.ctioo dI6 (ji)—rdxeci-Cion -.j decree to pay money—Judgment-debtor, n. Heed Kauyauy—Seizure oj his wines, dearness allowancefind pence tno'-ny—Invalidity oj such seizure—Meaning oj labourer ”—/Service Contract-: Ordi'-unre. {Cup. Section d — hstnC. Labour (Indian)
Ordinance {Cop. 112). Section ■!.
In oxecution monov decrot) ■.'uwruai-tijfondaat, iha pi.Mi'.*rf
sauced th.fi wr.Zv.*, dociraos.; nllowaneo and pozieo uiouoy of Lho dufjudattt. Itwas established kt >,t f.iio H‘>fond:«ifc was a [feud Kang&ny who did no manualor physical work of any kind and that his duty was to superviso labourerswho did the mam»al work.
Held, (Gratiuou J. diasonting), that an ostato kuugany employed merely tosupervise a number of ostuto labourers is a " labouror ” within tho meaningof section 2lft {j) of tho Civil Procedure Codo and that tho eoizure was, therefore,not valid.
^.PPEAL from a judgment of the District Court, Kandy. This casewas referred to a Bench of three .Judges owing to a difference ofopinion between the two Judges before whom it had been previouslylisted.
H. W. Tambiah, with (1. T. Samaratvickreme and 8. Sharvananda,for plaintiff appellant.—The question at issue is whether a kanganywho merely supervises labourers and does no manual or physical workis himself a “ lahourer ” within the meaning of section 218 {j) of thoCivil Procedure Codo. The Estate Labour Ordinance (Cap. 112) definesa “ labourer ” for the purpose of that Ordinance. This definition, cannotbe used for ascertaining tho meaning of the word “ labourer ” as used inthe Civil Procedure Code. One must look at section 218 of the Civil
1*J. K. A 97628(6/60)
346
DIAS S.r.J.— Yakoob Bai v. Samimuttu
Procedure Code itself. In Girigoris v. The Locomotive Superintendent1it was hold that the wages due to a mechanic employed by the CeylonGovernment Railway was not exempt from seizure as he was not a“ labourer In Reddiar v. Abdul Latiff* it was held that a lorry driverwas not a “ labourer ” within the meaning of section 218 (j). InWickremetunge v. Perera3 a tramway conductor was held not to be a“ labourer A labourer is one who does manual work. In Nagasamyv. Hamid 4 it was held that the wages of a tindal is not liable to seizure.That case is distinguishable because the evidence showed that thesubstantial work done by the tindal was loading, unloading and arrang-ing cargo. The question in the present case is whether a person whomerely supervises labourers is himself a labourer. Tho trend of thecases is that manual work, that is, actual physical labour, is of the essenceof the work of a “ labourer The burden was on the defendant toshow that he came within the proviso to section 218, which should bestrictly construed—Sarkar's Civil Procedure Code, Vol. Ill, p. 516.As to tho meaning of the word “ labourer ” see Jechand Khusal v. Aba6 ,•Riley v. Warden 6 ; Gordon v. Jennings
H. W. Jayetvardene, for defendant respondent.—It is not correct torestrict the term “ labourer ” to those doing manual work only. Section2 of the Service Contracts Ordinance (Cap. 59) definos the word “ servant ”to include “ kanganies and other labourers Section 3 of the EstateLabour Ordinance (Cap. 112) defines “ labourer ” to mean “ any labourerand kangany (commonly known as Indian coolies) whose name is borneon an estate register”. See Nicol v. ICandasami8 and Burrow’s Wordsand Phrases Vol. Ill, p. 202. Statutes in pari materia should beinterpreted alike—BeaVs Cardinal Rules of Interpretation, p. 402.
H. W. Tarnbiah, in reply.—The Service Contracts Ordinance and theEstate Labour Ordinance are not in pari materia with the Civil ProcedureCode. The decision in Nicol v. Eandasami (supra) cannot be used tointerpret section 218 (j) of the Civil Procedure Code—Macbeth A Co. v,Chislett9.
Cur. adv. vult.
May 26, 1950. Dias S.P.J.—
The plaintiff appellant obtained judgment against the defendant-respondent for a sum of Rs. 1,147*50 on a promissory note and issuedwrit. Under that writ the Fiscal seized the wages, dearness allowanceand pence money of the defendant in the hands of the latter’s employer,The defendant claiming that he is a “ labourer ” within the meaning ofsection 218 (ji) of the Civil Procedure Code successfully moved the Courtto have that seizure withdrawn. From that order the plaintiff appeals.
The appeal was first argued before my Brothers Nagalingam andGratiaen; but as they disagreed as to whether the defendant was a“ labourer ”, the question now comes before a Bench of three Judges.
(1912) IS N. L. R. 117.*(1880) 5 Bom.18:1.
(1928) 30 y. L. R. 95.*.(18 IS) 1 £><•/>.69 at p. 68.
s (1939) 41 N. L. R. 95.7(1882) 9 B.D. 45.
« (1912) 13 U. L. R. 525.*(1906) 1 £ C.D. 38.
■ (1910) 79 L. J. K. B. 376.
DIAS S.P.J.— Yokoob Bai v. SamimtUtu
347
In the caption to the plaint and answer the defendant is described as“ Saminuittu K. P. Kelevitotem, Hatton In the promissory notedated 1947, on which the defendant was sued, he has signed as Sami-muttu K.P. I presume “K. P.” means “ kanakapuHe ”, a manwho keeps accounts. At the inquiry held by the District Judge thewitness Paul Raj, a clerk on the estate where the defendant is employed,stated that though the defendant was formerly a “ kanakapulle ”, hewas since 1948 the “ Head Kangany ” of the estate, and is described assuch in tbc estate register Dl. He further stated that head kanganieshave a number of labourers under them, and that the duty of a headkangany is to supervise labourers who do the manual work. For thiswork the head kangany is entitled to draw what is called “ pence moneyNo contrary evidence having been led, wc must take it as establishedthat, the defendant does no manual or physical labour of any kind,and that his duties are purely supervisory. The question is whethersuch a person can be described as being a “ labourer ” within the meaningof section 218 (j) of the Civil Procedure Code ?
Section 218 provides that in the execution of a money decree, thejudgment creditor may seize and sell and realize in money in the hands ofthe Fiscal “except as hereinafter mentioned” all saleable property,movablo or immovable, belonging to tho judgment-debtor, or overwhich or the profits of which the judgment-debtor has a disposing power&c.”; provided that the following shall not be liable to such seizure orsale, namely (inter alia):—
(j) The wages of labourers and domestic servants.
The Civil Procedure Code contains no definition, of the word “ labourerAccording to Webster’s Dictionary, “ A Labourer ” is one who doesphysical labour j one who works at a toilsome occupation, especially aperson who does work that requires strength rather than skill, as dis-tinguished from artisans and from the professional classes. The ConciseOxford Dictionary says that a “labourer '1 is one who does for wageswork which requires strength and patience minor than skill or training.In “ Words and Phrases Judicially Defined ” there oocurs the followingpassage ; “ What degree of skill is sufficient to raise a manual workerout of the labouring class is a question upon which widely varyingopinions may be, and frequently arc heldThere are decided cases under section 218 (j) where this Court hasconsidered ■whether persons employed i:i certain occupations are“ labourers ”—but they do not help us to solve tho problem whether a“ kangany ” is a labourer,
In Girigoris v. The Locomotive. Superintendent* a mechanic employedon daily wages by the Ceylon Government Railway was held not to be a“ labourer ” within the meaning of section 218 (j). Wood Renton J. referredto the case of Jechand Kbjsal v. Aba 2 where Melville J. said that personsare “ labourers ” who cam their daily bread by personal manual labour,or in occupations which require little or no art-, skill, or previous education.In Reddiar v. Abdul Laliff* it was held that a lorry driver was not a
1 (1912) IS N. L. R. 117.■■ (1*S0) 5 Bom. 132.
3 (1928) 30 N. L. R. 9S.
348
DIAS S.P.J.—Yakoob Bai v. Samimuttti
“ labourer ” within the meaning of section 218 (.7). Driebcrg J. said:
“ A lorry driver whoso occupation needs previous training, some degreeof skill, and is not manual in the strict sense of the word, is not a‘ labourer ’ within the moaning of section 218 {j) of the Civil ProcedureCode ". In Wickmmatunge v. Perera1 de Kretscr J. held that a tramwayconductor was not a " labourer ”. He said that in appointing tramwayconductors the employer looks to their character and honesty, and thatit was clear from the description of the work done by such persons thatthey do not come within the moaning which one naturally and ordinarilyattaches to the word “labouror”. In Nagasami/v. Hamid- the defendantwas the tindal of a boat. Ho was the chief man of the crew, whom heengaged. The work of the crew was to load and unload cargoes. Thedefendant allotted the work to be done by the crow, and he himselfworkod with them in the task of loading and unloading. Soertsz J. heldthat on these facts the defendant was a “ labourer ” within the meaningof section 218 (j). “ The fact that the respondent is called tho tindal,that hodeals directly with the employing firm, that he is responsible to theharbour authorities for tho observanco of the port regulations and thingslike that, do not in any way allcviato tho burden of his manual labour.They may, perhaps, give him a certain standing in his littlo world oflabourers by putting him in the position of primus inter /tares ; but thecrucial fact—the fact whereby there hangs tho tale, is that therespondent takes, more or less, an equal hand with others in loading,unloading and arranging cargo, which is their substantial business
Had the matter ended here, one would bo inclined to hold on theevidence before the Court that a “ kangany ” whose work was purelysupervisory, and involved no physical or manual labour of any kind,could not bo calleda “labourer”. I am, however, of opinion that thereis another approach to this problem.
Ordinance No. 11 of 1865 is described as “ An Ordinance to consolidateand amend the law relating to Servants, labourers, and JoumoymenArtificers under contracts for hire and service That Ordinance, andothers which followed it, dealt with the relationship of master andservant, principally from the point of vi«w of j>cnal consequences3,but that Ordinance, nevertheless, still remains in the Statute Bookunder the new name given to it by the Editor of the Revised Edition as‘‘ The Service Contracts Ordinance ” (Chapter 5ft) in Volume 2, page 109,while the connected Ordinance No. 13 of 1880 under the name of “TheEstate Labour (Indian) Ordinance” (Chapter 112) has been relegated toVolume 3, page 337, although section 2 of the latter Ordinance providesthat “ This Ordinance shall, 60 far as is consistent with the tenor thereof,be read and construed as one with the Service Contraote Ordinance
Ordinance No. 11 of 1865 (Chapter 59) in its present form gives statutoryeffect to the contracts of service between masters and servants in thisIsland. By an amendment in 1012 (Chapter 60) the main Ordinancewas made applicable to “cliattficurs ” as if they were “ domestic servants”.
Section 2 of Chapter 59 defines the word “ Servant ” as follows : “ Theword ‘ Servant ’ shall, unless otherwise expressly qualified, extend to and
1 (1939) 41 N. L. R. 9-5.- (1942) 43 N. L. R. 525.
9 Isaac Tambyah'a Planters' Manual, p. 1.
DIAS S.P.J.—Yakoob Bai v. Samimutiu
349
include—menial, domestic, and other like servants, pioneers, kanganies,and other labourers, whether employed in agricultural, road, railway,or other like work
In Ferguson v. Olivem 1 a Full Bench of the Supreme Court in 1867said : “ The interpretation clause is worded in such a maimer that wecannot apply to it the ordinary rule of making the special words at thecommencement control all the general words that follow. Neither a‘ pioneer ’ nor a ‘ kangany ’ is an ‘ other like 1 servant. Yet, bothpioneers and kanganies ary; clearly included. The true meaning seem6to us to l>e that it includes all menial and domestic servants, and also allout-door labourers, whether employed in a private family, or on agri-culture, or on road, railway, or other like work. It also includes pioneersand kanganies, and persons in employments similar to the employmentof pioneers and kanganies. The present defendant seems to us to be inemployment similar to that of a kangani. Ho is not a superintendent,of work, in a position far superior to that of the labourers, but he islike a kangani bound to accompany labourers, and to set them to work,and to exact their full amount of labour, and to direct tin; manner inwhich they perform their labour. Though not actually doing manuallabour himself, be is closely connected with those who do, and .approachesnearer to them than to his superior masters as to position ''—per CreasyC.J., Temple and Stewart JJ. In the late Mr. fs;ae Tambyah’s bookpreviously cited, the position of a kangany under Chapter 59 is thussummarised with reference to the case law -: “As regards a kanganyhis status has been explained t» be dependent on circumstances. Wherehis name is on the estate chcck-roll, he receives advances of rice, resideson the estate, supervises the work of coolies and had received head-money as per cooly working per day—he is a labourer^HorsjaU tJuanis3; and it is enough if he receives head-money and supervisescoolies—Nicol v. Kandasamy or even if he merely received head-money. But a kangany, though ordinarily liable under OrdinanceNo. 11 of 1865, has been held not to be a labourer, where be was creditedwith head-money, but he received neither pay, nor rice, nor did anywork. A kangany who has no work to do and is not paid, may not beput on to cooly work. It would seem that residence on the estate is notnecessary to fix a kangany with liability if his name is on the check-roll,and he has a line and coolies to look after. Be is a labourer when he hascoolies whose work bo has to superintend. Be in a labourer if ho is paidby the month though ho may also be a contractor. As a rule a kangany,or head kangany, or kanakapulle under a monthly contract to doagricultural work, is a lafomrer, if he has such work to do, to weighleaf, to keep check-rolls and to supervise the manual labour of others
Therefore, a kangany whose duty it 1b merely to supervise the workof the labour force and for which work he is paid head-money or pencemoney would be a “ labourer ” within the meaning of Ordinance No. 11of 1865 (Chapter 59).
Ordinance No. 13 of 1889 (Chapter 112), which is required by section 2of that Ordinance to be read and construed as one with Ordinance No. 11
5 (1867) Bam. 53-68 p. 288.[1908) 3 A. C. Ii. App. ir.
1 Planters’ Legal Manual, pp. 21-22.* (1908) 1. S. C. D. 38.
DIAS S.P.J.— Yaleoob Bat v. Somtmuttu
360
of 1865 (Chapter 59) “ so far as is consistent with fcho tenor thereof ”,by section 3 defines a “ labourer ” to mean “ any labourer and kangany(commonly known as Indian coolies) whose name is borne on an estateregister, and includes the Muslims commonly known as TulicansThe District Judge in considering whether this defendant wa« a “labourer “imported tho definition in seotion 3 of Chapter 112 into his judgment.Counsel for the appellant has strenuously argued that ho erred in so doing,and contends that he is not ontitled to construe section 218 (y) of theCivil Procedure Code by resorting to a definition containod in an entirelydifferent statutory enactment. Ho relied on the decision of th-.- Houseof Lords in the case of Macbeth <f; ('o. v. Chislett '. In that case it washeld that in considering whether a man was a “ seaman ’’ within themeaning of tho Employers Liability Act 1380, the definition of theword “seaman” as used in Tho Merchant Shipping Ant 1854 couldnot bo utilised. Lord Lorobnm L.C. said : “ It would be a now terrorin tho construction of Acts of Parliament if wo wore required to limit afamiliar word to an unnatural sonso because, in some Act which is notincorporated or referred to, such an interpretation is given to it for thepurposes of that Act alone In my view, with the greatest respect,
I think that case is distinguishable from the facts of the present case.It is dear that long before Ordinance No. II of 1S65 was enacted, Ordi-nance No. 13 of 1858 had made kanganics liablo as “labourers” forrefusing to work-. The Legislature then by Ordinance No. 11 of 1865amended and consolidated the law relating to servants, labourers andjourneymen artificers, and pioneers and kanganics were classified as“labourers”. Then came the Civil Procedure Code, No. 2 of 1889,which by section 218 (j) oxempted from seizure the wages of labourersand domestic servants. In the saitx- year was enacted Ordinance No. 13of 3889 (Chapter 112) when the Legislature declared that a “ labourer ”meant “ any labourer and kangani ”.“ An author must be supposed
to be consistent with himself, and, therefore, if in one place he hasexpressed his mind clearly, it ought to bo presumed that he is still of thesame mind in another place, unless »t clearly appears that ho has changedit. In this respect, tho work of the Legislature is treated in tho samemanner as that of any other author, and the language of ovory enactmentmust be construed as far as possible in accordance with the terms ofevery other statute which it does not in express terras modify or repeal ” 3.I am, therefore, of opinion, that tho Legislature in section 218 O’) of theCivil Procedure Code had in view' the class of persona specially legislatedfor by Ordinance No. 11 of 1865 (Chapter 59). The Legislature in effectsaid The wages of ‘ labourers ’ and ‘ domestic servants ' os defined bysection 2 of Chapter 59, shall not be liable to seizure under tho writ of ajudgment creditor ”, In tho circumstances, I do not think it is improperto ascertain tho meaning of the term “ labourer ” as used in section 218 (j)of the Civil Procedure Code by reference to the labour laws and thecases decided thereunder.
For the reasons I have already given, the facts of this case indicatethat this defendant-respondent is'a “labourer”. I would, therefore,affirm the order appealed against with costs.
1 U320) 79 L. J. K. B. 376.» Bel, <& Fond. p. 86.
* Maxwell 9th Ed., p. J63.
NAGALINGAM J—Yakoob Bat v. Samimutlu
351
Nagalingam J.—
I have had the advantage of reading tho judgment prop&red by mybrother Dias which so fully and exhaustively sets out the views I heldboth at tho original and second hearing of this appeal that it seoms tome to be entirely unnecessary to writ© out a separate judgment. I waspleasantly surprised to find that the point referred to the DivisionalBench had already boon determined by a Full Bench of this Court in thecase of Ferguson v. Olivera1 which is cited in the judgment butwhich was not brought to our notioo by Counsel at cither tho first or theseoond argument of this appeal. This Full Bench case reflects clearlythe opinion T had expressed at tho first hearing of this appeal, and ifthis case had been cited at the first hearing there would have been nonecessity to have referred the appeal to a Divisional Benoh.
Gbatiaen J.—
It is with very much regret that I find myself in disagreement with mybrothers Dias and Nagalingam it this oose.
The defendant claims to be a “ labourer ” within the meaning ofSection 218 (j) of the Civil Procedure Code, and that his “wages”,including “ pence money ”, are therefor© exempt from seizure at theinstance of his judgment-creditors. Tho admitted evidence is that, atthe relevant date, he was employed as a Head Kangani on HarringtonEstate in Kotagala; and that in this capacity he was employed tosupervise a number of estate labourers. Tho manual work on the estatewas performed by the labourers themselves, his functions being of apurely disciplinary character. In return for these services he receivedfrom his employers a salary and “ dearness allowance He was alsopaid “ pence money ” which was calculated according to the number oflabourers in his gang who turned out in the field each day. I hadunderstood Mr. Jayawardene to concede that “ pence money ” was inany event not exempt from seizure.
The term “ labourer ” is not defined in the Code. Nor is it definedin analogous legislation either in England or in India. Section 218 (j)was taken over in identical terms from the corresponding part of section166 of the Indian Code of 1882 (now seotion 60 of 1908, where certainwords have been added which are immaterial to this case). The languageof the Indian Section substantially incorporates the provisions of theWages Abolition Act, 1870, of England (33 and 34 Vio., Cap. 30, section 1)whereby it is declared, witftoul defining the term “ labourer ”, that “ noorder for the attachment of the wages of any servant, labourer or workmanshall be made by the Judge of any Court of Record or inferior Court
Judges of this Court, in interpreting section 218 (j) in tho past, haveinvariably been guided by authoritative rulings of the English and theIndian Courts as to the scope of the analogous legislation to which Ihave referred, and, indeed, these rulings have been substantially in-corporated in the judicial pronouncements which my brother Dias hasreviewed in his judgment. I therefore regard it as settled by the earlierprecedents that the object of section 218 (j) is “ to proteot persons who^ (1867) Ram. 63-68, p. 288.
352
GRATIAEN J.—~Yakoob Bat v iSamimuitu
are considered to be in a position in which they arc unable to protectthemselves …. and who might otherwise bo prevented fromproviding subsistence for their families ”—Gordon v. Jennings': or, asBaron Parke said in connection with a Truck Act which was designed toachieve a somewhat similar purpose, “ to protect such men as earn theirbread by the sweat of their brow, and who are for the most part anunprovided olass ”—Riley v. Wardeni. For this reason, it has beendecided in India, following the English decisions, that, for tho purposesof the Section in tho Indian Code corresponding to section 218 (j), thot$rm “ labourer ” is restricted to persons “ who cam their daily bread bypersonal manual labour, or in occupation which require little or no art, skillor previous education”. Jechand Khusal v. Aba3, There are casesin which the necessary attainment of somo degreo of skill in the per-formance of an employer’s duties has been held to be sufficient toelevate even a manual worker from the category of “ labourers ” in thopresent context; similarly, persons whose employment involves somedegree of physical exertion have nevertheless been refused exomptionfrom attachment of their salary becauso their remuneration was paidto them for performing duties substantially of a disciplinary character,or functions which were based on the confidence which, the employerreposed in their honesty. As against those instances {which are to befound among the authorities cited by my brother Dias) not a singlejudicial decision has been brought to our notice in which exemptionunder section 218 (j) of our Code or under analogous legislation in othercountries was granted to any person who was not a “ labourer ” in thesense in which the word is popularly understood. In my opinion,this term is inappropriate in such a context except to someone who isengaged “in manual work …. in some unskilled operation”(per Soertsz J. in Nagasamy v. Hamid 4) or in some equally humbleoccupation which may not even involve physical exertion. That is theinterpretation I place upon the decision in Jechand Khusal r. Aba a.
For these reasons l respectfully agree with my brother Dias that (ifsection 218 (j) be construed apart from the application of some specialenactment which may be found to extend the general rule) a person whoseduties are purely of a disciplinary nature, involving no physical ormanual labour of any kind, is not entitled to be called a “ labourer ”within the meaning of section 218 (j). Indeed, I would go further, andrefuse exemption under the section to any person whose duties mayto some extent involve physical labour but whose “ substantial business ”involves responsibilities of a disciplinary character. That is, in myopinion, the ratio decidendi of Soertsz J’s ruling in Nagasamy v. Hamid 4.
Mr. Jayawardene invited us to adopt the argument that a personengaged to supervise unskilled labourers is himself a “ labourer ” withintho meaning of section. 218 (j), whereas a supervisor of skilled workmonadmittedly falls outside the exempted class. This seems to me anuntenable proposition. One can conceive of circumstances in whichpersonal qualifications of a far superior nature are demanded in thecase of a man employed to handle a large number of unskilled labourers
(1882) 9 Q. B. D. 45.(1*48) 2 Easeh. 59 dtp. 68.
{1880) 5 Bom. 132.(1942) 48 N. L. B. 525.
GRATIA EM J.— Yakoob Dai v, Saiuimuttu
353
than would be necessary, for instance, in the case of a supervisor ofskilled'technicians who are well-disciplined and take pride in tho qualityand output of their work.
It remains to consider the question in regard to which I am constrainedto dissent, with great respect, from the views expressed by my brothersDias and Nagalingam. As I understood tho argument of Mr. Jaya-wardene, he submitted that even if a person who is paid for supervising“ labourers ” cannot as a general rule be regarded as a “labourer” forthe purposes of section 218 (j), a “kangani ” must necessarily fall withinthat class by reason of certain statutory definitions which have beengiven to the term “ labourer ” in Legislative enactments other than thoCivil Procedure Code. Let rao first examine this argument by referenceto the enactments relied on, and then consider the principles ofinterpretation which seem to be applicable.
The Civil Procedure Code, in which section 218 (j) appears, was enaetedas Ordinance No. 2 of 1889. I have already stated that the term"labourer” is nowhere defined in this Code. As far as I have boenable t-o ascertain, no definition of this term appeared (either generallyor for any special purposes) in any enactment which was on the StatuteBook at the tune that the Code was passed by the Legislature. OrdinanceNo. 5 of 2841 “ for the better regulation of servants, labourers andjourneymen artificers under contracts of Hire and Service, and of theiremployers ”, Ordinance No. 13 of 1858 " to amend and explainOrdinance No. 5 of 1841 ”, and Ordinance No, 20 of 1861 “relating tocontracts for the Hire and Sorvice of Labourers in this Colony ” hadall been previously repealed by the provisions of Ordinance No. 11 of1865. Of these repealed enactments, only the Ordinance of 1858 pur-ported to define a “ labourer It declared, " in order to remove doubtswhich had arisen ”, that “in reading and interpreting Ordinance No. 5of 1841, the terra “ labourer ” shall bo taken to mean, include and applyto every overseer of labourers commonly known as …. Kangani
Ordinance No. 11 of 1865 was enacted “ to consolidate and amendthe Law relating to sorvants, labourers and journeymen artificers undercontracts for hire and service ”. It now appears in the Statute Bookunder the designation “ Service Contracts Ordinance ” {Chapter 59) in aform which happily no longer prescribes certain penalties (now regardedas odious), to which " servants ” and " labourers ” had been subjectedin former days. Be that as it may, no statutory definition has beengiven to the term " labourer ” in thiB enactment. No doubt the genericterm “ servant ” (as contrasted with “ journeymen artificers ”) is theredefined as extending to and including “kanganies” for the specialpurposes of the Ordinance, and no doubt “ other labourers ” are alsoclassified as “ servants ” in the same connection, but I do not think thatthis circumstance indicates an intention on tho part of the Legislatureto lay down by implication a comprehensive definition of a “ labourer ”for purposes unconnected with the Ordinance. In Ferguson v. Oliviera1the Full Bench of this Court dealt with a criminal charge against a personwho was not a kangani but “ whose employment was similar to that of1 {1867) Damanathan's Deports, 288.
361GRATIAEN J.— Yakoob Bai r. SamimaKu
one The Court held that this person was ft “ labourer ” within themeaning of the Ordinance because “ his status more closely approachedthat of the manual workers whom he supervised than that of his superiormasters I am not prepared to concede that this test, which was nodoubt appropriate to the special case under consideration at the timewhen the judgment was pronounced, can help us now in solving a problemwhich arises under section 218 (j) of the Civil Procedure Code. I am notbold enough to attempt a precise assessment of a kaugani’s presentstatus in comparison with that of his estate Superintendent on the onehand and of his labourers ou the other. Still more dangerous wouldsuch an assessment be if it were intended to guide future generations.
The other legislative enactment which was suggested to us as beingin pari materia with section 218 (j) of the Codo was the Estate Labour(Indian) Ordinance (Chapter 112) which was introduced as OrdinanceNo. 13 of 1889 “ to amend the law relating to Indian Coolies employedon Ceylon Estates”. In this Ordinance, both in its original as well asits amonded form, a “Labourer” is defined “for the purpose# of thisOrdinance. ” (that is, for an expressly limited purpose) as meaning“any labourer and Kangani …. wkose name is borne on anestate register ”, and this term is further restricted by the interpretationclause to “ labourers ” on estates “ of which ten acres or mare are actuallycultivated ”. I do not think it legitimate to extend this special meaningof “ labourer ” beyond the limits of the Ordinance when we are calledupon to interpret a section in which the same word appears in anotherOrdinance intended to achieve an entirely different end. I confessthat I derive little assistance in the present context from tho judgmentinNicolv. Kandasami1 where Wendt J. held that a kangani was rightlyconvicted and imprisoned for an alleged offence against section 7 (sincerepealed) of Ordinance No. 13 of 1889.
The Civil Procedure Code (Chapter SO) was enacted earlier thanChapter 112 but seems to have come into operation a few months later.It is designed to regulate the procedure in Courts of Civil jurisdiction,and the various exemptions contained in section 218 were introducedin the public interest to curtail the rights of judgment-creditors againstoortain specified classes of judgment-debtors. The Service ContractsOrdinance (Chapter 54) was introduced to regulate the relations of theparties to “ contracts of hire and service ” of a certain kind. TheRestate Labour (Indian) Ordinance (Chapter 112) camo into force tosecure a similar but nevertheless a special purpose connected with theaffairs of the larger agricultural holdings. In my opinion those latterOrdinances cannot properly be deemed to bo in pari materia with section218 (j) of the Civil Procedure Code so as to justify all three enactmentsbeing "taken and construed together as one system and as explanatory ofeach other(R. v. Loxdale2).
It seems to me that the term “labourer 11 in section 218 (j) must bointerpreted solely by reference to tbe purpose which that section, aaexplained by previous judgments of the Courts in Eogland, India and1 (1906) J S. C. D. 38.* 97 B. Tt. 394.
NAGALINGAM ,1 ,—Carolisappu v. Anagihamy3Jiu'
Ceylon, was intended to serve. The categories of “ labourer ” in this,context cannot in my opinion either be limited or enlarged in the light ofwhat the term means in other Ordinances and for other purposes. Manyanomalies would result if it were otherwise. A “ journeyman artificer ”might well be regarded, I think, as a “labourer” under section 218 (j)-although he falls outBide the definition of a “ servant" under the ServiceContracts Ordinance. Finally, it would be strange, indedS, if a “ kangani ”of an estate with over ten acres under cultivation wore found to enjoygreater immunity than a person performing similar functions for a lowerremuneration on a smaller estate which is excluded from the operation,of the Estate Labour (Indian) Ordinance.
The conclusion at which I have arrived is that the defendant has notdischarged the onus of establishing that he is a “ labourer ” within themoaning and tho spirit of section 218 (j) of the Civil Procedure Code.Ho cannot claim any spocial advantage over other judgment-debtors inthis connection by relying, simpliciter, on the fact that he is an estate”kangani”. It is a matter of common knowledge today that theservices performed by kanganies vary widely from estate to estate.The question whether any of these persons is a ” labourer ” entitled toclaim exemption from attachment of his “ wages ” must in each casebo considered as a question of fact.
In my opinion tho appeal should be allowed, but as the majority ofthe Court have decided otherwise docroe must, of course, be entered interms of the judgment of my brother Bias.
Appeal dismissed.