WINTHROP v. MADASAMY

125-NLR-NLR-V-16-WINTHROP-v.-MADASAMY.pdf


( 467 )
[Full Bench.]
Present: Wood Renton A.C.J. and Pereira and Ennis JJ.
WINTHROP v. MADASAMY.
494—P. C. Ratnapura, 22,784.
Disobedience of the orders of the employer—Order given by conductor—
Does definition of term “ employer ” in Ordinance of 1889 apply
to Ordinance of 1865 ?
A superintendent who was in charge of two estates redded on one.The conductor of the other estate, on the express instructions ofthe superintendent, directed the kangany to order his coolies tocarry chests of tea from that estate to the other. The kanganyrefused to obey the orders.
Held, by Wood Renton A.C.J. and Ennis J. (Pebee&a J.dissentiente), that the kangany was guilty of wilful disobedience tothe orders of his employer under section 11 of Ordinance No. 11of 1865.
Wood Renton A.C.J. and Ennis J.—The evidence shows thatthe conductor was the chief person for the time being in charge ofthe estate at the time the order was given by him, and as such hecame within the definition of the term “ employer ” in OrdinanceNo. 13 of 1889, which by section 2 has to be read and construed asone with Ordinance No. 11 of 1865.
Wood Renton J.—To constitute the offence. of wilful disobe-dience to orders in the service of an employer within the meaningof section 11 of Ordinance No. 11 of 1865, it is not necessary thatthe order must be given by the employer ; it is sufficient if the orderis given in the employer’s service, and is one which, under theusual routine of the work of the estate, it is the duty of the servantto obey.
1918.
i (1912) 14 N. L. Jl. 177.
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Pbbkbxa. J-—The interpretation of the term “ employer ” inOrdinance No. 13 of 1889' does not apply to Ordinance No. 11 of1865.
Pnanm J.—A cooly is not bound to obey the orders of theconductor, unless the superintendent had delegated his powers tohim. Delegation can only be effected with the assent or consentof the servant. .
If it is established by evidence that a certain system aoquiescedin by the servant for the carrying on of the work of the estate hasalways existed, a part of which was the giving of orders by the 'conductor, delegation and assent thereto might thereby be inferred,but there is a lack of evidence in the case either of such a gvstemor of express delegation.
T
HIS case was reserved for argument before a Full Bench byPereira J. The facts appear from the judgment of Wool
Benton A.C.J.
H. J. 0. Pereira, for the accused, appellant.—The accusedcannot be punished for disobeying the orders of the conductor.The employer was the superintendent. The accused is not boundto obey the orders of the conductor unless there was a delegationof the right to give orders with the consent of the cooly.
Power v. Rengasami1 is a binding authority. [Wood BentonA.C.J. referred counsel to Murray v. Velaiden.*]
J. W. de Silva (with him R. L. Pereira), for the complainant,respondent.—The conductor is the person in authority on the estatein question. His orders are obeyed by the coolies without anyquestion. The evidence shows that the order in question wasgiven on the express instructions of the superintendent.
If delegation is to be with the consent of the cooly, then everytime a new superintendent is appointed there should be expressconsent of the cooly to 6erve his new employer. Delegation ofauthority and consent of the cooly might be inferred) from thecircumstances.
The orders of the superintendent are passed in this way as arule, and we might infer delegation and consent of the cooly fromthe fact that the orders were usually obeyed.
An V employer ” is a person in authority for the time being onthe estate. The Ordinance No. 13 of 1889 has to be read with. Ordinance No. 11 of 1865.
Cur. adv. vult.
October 15, 1913. Wood Benton A.C.J.—
The argument of the point of law referred by my brotherPereira in this case to a Bench of three Judges has unfortunately,but unavoidably, been delayed by the absence of my brother Ennisand myself on circuit. The accused-appellant was prosecuted
1 (2892) 9 S. C. C. 149.
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hy the complainant-respondent, Mr. Winthrop, Superintendent ofPalamcotta and Nahaveena estates, for ” wilful disobedience oforders ” and misconduct, offences punishable under section 11 ofOrdinance No. 11 of 1865. The learned Police Magistrate aftertrial convicted the appellant, and sentenced him to one month’srigorous imprisonment, and, in addition, to a fine of Bs. 50, or, indefault of payment, to rigorous imprisonment for another month.We are not here concerned with the question whether the appellanthas been properly convicted on the ground of misconduct. Theonly point referred to us is whether on the evidence, as recordedand accepted by the Police Magistrate, the conviction of wilfuldisobedience to orders is good.
The material facts are these. The appellant is the head kanganyof Nahaveena estate. The1 complainant, Mr. Winthrop, althoughhe is superintendent both of that estate and of Palamcotta, residesgenerally on the latter, and his orders to the appellant and to thecoolies working under him on the former are usually given throughCalnaid, his conductor there. ” The conductor,” said Mr. Winthropin his evidence, “ is my agent on Nahaveena.” On May 22 lastCalnaid, by Mr. Winthrop’s express instructions, directed theappellant to order his coolies to carry chests of tea from Nahaveenato Palamcotta. The appellant, although Calnaid told him thatthese instructions proceeded from Mr. Winthrop himself, refusedto obey them wilfully and without reasonable cause.
The question is whether, in these circumstances, he has beenguilty of disobedience to orders within the meaning of section 11of Ordinance No. 11 of 1865. Considering the matter apart fromauthority, I should have thought that the answer to this questionadmitted of no doubt. The offence is defined in the section itself
as ” wilful disobedience of orders in the service of his
employer.” The section does not say that the order must begiven by the. employer. It is sufficient if the order is given in the.employer's service, and is one which, under the usual routine of thework of the estate, it is the duty of the servant to obey. If this bethe correct interpretation of the law, the commission of the offencecharged against the appellant is established by the evidence beyondall doubt. We have the unchallenged statement of Mr. Winthrop .that the conductor was his agent on Nahaveena estate. Theevidence both of Mr. Winthrop and of the conductor shows that itwas the practice of the former to issue orders on the appellant andhis coolies through the latter, which the latter carried out; that theremoval of the tea chests from Nahaveena to Palamcotta was anordinary branch of work on Nahaveena estate; that the coolies,were engaged in it, at their ordinary rate of wages, often for daysat a time; that they received extra pay if chests had to be carriedon a Sunday; and that the appellant was well aware of all thesecircumstances. He gave evidence on his own behalf at the trial.
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and called other witnesses in his defence. Neither he nor any of hiswitnesses suggested that the order for the removal of the tea chestswas one which the superintendent had no right to give. Theircase was that the order had been sent, not through the conductor,but through the watcher; that the appellant had done his best toinduce the coolies to obey it; that the coolies had refused; and thatthereupon the conductor himself had told the appellant to putthem to pruning work. On the evidence in the case taken as awhole, and as interpreted by the learned Police Magistrate, thePolice Magistrate was, in my opinion, amply justified, in the absenceof any judicial decision compelling him to give effect to a differentview of the law, in holding that the appellant had been guilty ofwilful disobedience to orders in the service of his employer. It issuggested, however, that the decision of the Full Court in Power v.Rengasami1 is an authority of this character. It was held in thatcase by Burnside C.J. and Dias J. (Clarence J. dissenting) thatthe mere fact that a person is the assistant superintendent of anestate raises no legal presumption per ae that he is invested withany particular authority to give the servants on the estate anyorders so as to make the disobedience to orders a criminal offenceon their part. I confess that I sympathize somewhat strongly withthe following passage in the dissenting judgment of Clarence J. inPower v. Rengasami 1;—
“ It is a notorious fact, within common knowledge and notrequiring proof, that tea estates are cultivated by theaid of coolies working under paid ‘ superintendents,’ towhom is entrusted the responsibility of dealing out tothe coolies all usual and lawful orders necessary to thecultivation of tea estates, and any such paid 1 superin-tendent * or 1 assistant superintendent ’ has primd facieauthority to give such orders, and disobedience to suchorders is primd facie disobedience of orders in theservice of the employer.”
But be that, as it may, the case of Power v. Rengasami1 has, in myopinion, no application to the circumstances with, which we havehere to deal. It must be noted that there the prosecution wasinstituted, not by the superintendent of the estate, who was theactual employer of the labourers, but in the name of the assistantsuperintendent himself. In the present case the superintendentis the prosecutor. Moreover the majority of the Court in Power v.Rengasami1 did not dispute, on the contrary they affirmed, theproposition that if there was primd facie evidence that an assistantsuperintendent was vested with power to give orders to the servants;wilful disobedience to such orders would constitute the statutoryoffence. There is here, I think, ample evidence of a delegation byMr. Winthrop to his conductor on Nahaveena estate of authority to
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convey or to make such an order as the appellant took upon himselfto disobey. All doubt upon the matter seems to be set at rest bythe definition of the term “ employer ” in section 3 of OrdinanceNo. 13 of 1889, which is not affected by the interpretation clause{section 2) in the Indian Coolies Ordinance, 1909 (No. 9 of 1909),that the term “ employer ” in the Labour Ordinances means “ the'chief person for the time being in charge of an estate.” Accordingto the uncontradicted evidence in the case, Calnaid answered tothat description at the time when he issued the order which theappellant disobeyed. The law does not require, in such oases asthe present, proof of any express delegation of authority by thesuperintendent; or express assent to such delegation "by the servant.Nothing more is necessary than that the person giving the ordershould in fact be, and should be understood by the labourer to be,in a position which justifies it.
In my opinion the appellant has been rightly convicted of wilfuldisobedience to orders in the service of his employer within themeaning of section 11 of Ordinance No. 11 of 1865. The case mustgo back to be finally disposed of by Pereira J. after the appellanthas had the opportunity, if he desires to avail himself of it, ofpresenting any arguments to the Court on the question of misconductwith which,sitting as a Bench of three Judges, we have nothing to do.The conviction, on the point before us, should be amended, so as tobring it into accordance with the language of the Ordinance, into oneof “ wilful disobedience of orders in the service of his employer.”
Ennis J.—1
I agree with my brother the Acting Chief Justice. The evidenceshows that the conductor was the chief person for the time beingin charge of the estate at the time the order was given by him, andas such he came within the definition of the term “ employer ” inOrdinance No. 13 of 1889, which, by section 2, has to be read andconstrued as one with Ordinance No. 11 of 1865.
Pereira J.—
My difficulty in agreeing with the rest of the Court is that thequestion before us appears to me to be covered by the authorityof the decision of the Full Court in the case of Power v. Bengaaami.1. Before I comment upon that fact I should like to say that, in myopinion, the contention of the respondent’s counsel that theinterpretation of the term " employer ” in Ordinance No. 13 of1889 applies to Ordinance No. 11 of 1865 as well cannot by anymeans be sustained. In Ordinance No. 13 of 1889 certain termsare given special meanings for, as it is expressly stated in theOrdinance itself, the purposes of that Ordinance. True, section. 2provides that the Ordinance so far as is consistent with the term
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thereof shall be read and construed as one with Ordinance No. 11of 1865, which is termed the principal Ordinance.” That provisionmay have the effect of rendering the special meanings given in theOrdinance of 1865 to words used in it applicable to the Ordinanceof 1889, but I am aware of no authority to support the converseproposition. The Ordinance of 1889, which is only subsidiary tothat of 1865, with its provisions to be read in the light of specialdefinitions given in it, stands by itself, and although it is made onewith the principal Ordinance, it cannot be allowed to control oraffect in any way the provisions of the principal Ordinance. Thereason for the special meaning given to the term “ employer ” inthe Ordinance of 1889 is not altogether independent of the reasonfor the special meaning given in the same Ordinance to the term“ labourer.” But in section 11 of Ordinance No. 11 of 1865 theterm ” employer ” is used in relation, not to ” labourer,” but to” servant ” (a term with a much wider signification) and ” journey-man artificer ”; and to give the term “ employer,” where thatterm and ” servant ” or ” journeyman artificer ” are used incorrelation to each other, the interpretation placed on the term inthe Ordinance of 1889 for its own purposes will, I am afraid, lead,to say the least, to embarrassing results. But, however that maybe, an effectual answer to the learned counsel’s contention is thatthe case for the prosecution is that Mr. Winthrop was the employer.The formal charge against the accused is that he disobeyed the ordersof his employer, the superintendent of the estate, and in the formalconviction it is stated that the accused misconducted himself whilein the service of his employer, Mr. W. H. Winthrop, superintendentof the estate, and disobeyed the lawful orders of his employer,meaning Mr. Winthrop'. How, then, can this Court take upon itselfto say that the conductor Calnaid was the employer, and that theorders disobeyed were orders given by him as employer? There is,moreover, no evidence that Calnaid was the chief person'in chargeof the estate.
Now, as regards the case of Power v. Bengasami ,x it will be seenthat what was held there by a majority of the Full Bench was thata cooly was not bound to obey the orders of an assistant superin-tendent, unless the superintendent (the employer) had delegatedhis power to him. As to how the delegation can be effected theoase is silent. It is, however, clear that it can only be effectedwith the assent or consent of the servant who is a party to thecontract to be affected. Of course, if it is established by evidencethat a certain system, acquiesced in by the servant, for the carryingon of the work of the estate has always existed, a part of which was.the giving of orders by the conductor, delegation and assent theretomight thereby be inferred, but there is a lack of evidence in theoase either of such a system or of express delegation. The mere
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fact that the conductor was* the agent oi the employer is insufficient
to vest him with the authority of the employer so as to bind the PBranuJ.servant. In this connection all that Mr. Winthrop says is:I give
orders to Calnaid, who shows them to the accused/’ and* all thatMad<uamy
Calnaid says is: “ My master sends me orders, which I carry out/'and “ The superintendent sometimes personally and sometimes inwriting conveys orders." This evidence is clearly insufficient toestablish delegation of authority.
For the reasons given above the conductor was not, in myopinion, the employer of the accused, and he had no right to givehim orders.
Pbrebla J.—This case was referred by me to a Bench of three Judges forthe decision of the question whether it was competent to Mr. Calnaid, theconductor of Nahaveena estate, to give orders to the accused (the kangany) orthe coolies who are employed on the estate. My Lord the Chief Justice andmy brother Tennis have answered the question in the affirmative, the commonground of their decisions being that the interpretation of the term '* employer ”in Ordinance No. 18 of 1889 applied to Ordinance No. 11 of 1865 as well, andthat the conductor was accordingly 11 employer ” of the kangany and cooliesat the time he gave the orders said to have been disobeyed by the accused.
When the judgment of the Collective Court was delivered, counsel for theaccused desired that it should be made clear that he was still entitled to arguethat no orders were in fact given by the conductor or the superintendent tothe accused, and it was understood that he might do eo. I may mention thatmy reason for referring the question mentioned above to the Collective Courtwas that it had a bearing on the charge of misconduct against the accused.
The accused was said to have incited the coolies to disobey orders given tothem, and it was in this connection that the question arose whether it wascompetent to the conductor to give any orders at all. On the argument ofthe case before me accused's counsel raised again the question whether anyorders at ail had been given to the accused by the conductor Calnaid. Onthis point I had already questioned the Magistrate, so as to ascertain theparticular order relied on by him as having been disobeyed. His reply(filed of record) was as follows: “ I have the honour to state that the parti-cular order the accused disobeyed was to refuse to allow the coolies to canytea chests from Nahaveena to Palamcotta.” I am not sure that the Magistratemeant what he has stated. I cannot bring myself to believe that the accusedwas in all seriousness asked to “ refuse to allow the coolies to carry tea chests.”
If the Magistrate meant that the order was ” to allow the coolies to carry thetea chests,” all that I can say is there is no evidence that such an order wasgiven. Counsel for the respondent has, however, invited my attention to thestatement of the conductor in his evidence that he ordered the accused to sendthe men to transport tea chests from Nahaveena to Palamcotta. There iscertainly a specific order here, bat the record does not show that there was adirect refusal by the accused to obey this order. Having, however, read theevidence carefully, I am inclined to agree with the respondent’s counsel that anomission on the part of the accused to carry ont the order may fairly be inferred.'
As regards the charge of misconduct, there is, I think, sufficient evidence tosupport it.
I affirm the conviction, amending it, as suggested by the Acting Chief'
Justice, by striking out therefrom the following :—“ Mr. W. H. Winthrop,Superintendent of the said estate.” As regards the sentence, I think that afine, in addition to imprisonment, is not called for in all the circumstances ofthe case, and I therefore remit the fine, while retaining the sentence of rigorousimprisonment for one month.