081-NLR-NLR-V-11-HUTCHINSON-v.-SINNEWELLASAMY-KANGANY.pdf
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Present : Mr. Justice Middleton.
HUTCHINSON v. SINNEWELLASAMY KANGANY.
P. C., Matale, 28,878.
Wadsworth, for the accused, appellant.
A. St. V. Jayewardene, for the complainant, respondent.
Cur. adv. vult.
September 11, 1908. Middleton J.—
In this case the accused, a kangany, has been convicted undersection 11 of Ordinance No. 11 of 1865 for quitting service withoutleave or reasonable cause. This section has been re-enacted, with aslight and important addition as to forfeiture of wages, by section2 of Ordinance No. 16 of 1905. The point now raised before meis similar to that raised in 395, P. C., Kandy, 10,369 {[Ogilvy v.Caruppen *), where I have discussed the question at some length.
The facts here are that the accused was a head kangany, said toowe the estate Es. 1,400, who had lost most of his coolies on theestate, and watchers were appointed by the superintendent to watchhim and his coolies and prevent their running away.
The accused quitted service on June 22, and wages for April werepaid on June 12. His wages for March were not paid to him, butwere, after deducting • the watchers’ wages, taken into advanceaccount. The superintendent stated that about ten of accused’scoolies left the estate without notice, and with accused’s consent heput on watchers to watch the remaining coolies, and that accusedi (1908) 11 N. L. R. 300.
1908.
September 11.
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1908. objected later. That in March accused earned Be. 10.03 as wages,Septemberll. which was set off against advances with the consent of the accused.Middleton The accused also was apparently not allowed to leave the estate.
I have carefully perused the evidence taken by the Magistrate, andI can nowhere find that the superintendent says that the accusedconsented to the cost of the watchers being deducted from hiswages. It is true he says that he put a watcher with accused’sconsent, but not that accused consented to have the watcher’swages set off against his own. This appropriation is not one whichthe superintendent is entitled to make under sub-section (6) ofsection 3 of Ordinance No. 13 of 1889 without the cooly’s consent.Even if the statement of the superintendent may be held to implythat the accused consented, there is no evidence of the time andplace, when and where, and under what circumstances his consentwas obtained; and if this were a civil action in which the superinten-dent had set up an agreement to allow a set-off he was desirousof enforcing, I do not think that there would be sufficient primafacie evidence of it to warrant the Court in calling on the defence torebut it. Beyond the superintendent’s statement there is no o;bherevidence.
The defendant was not, I think, therefore called upon to rebutwhat was stated by the superintendent. It ■ is not in evidence thatduring the period of service for which wages are alleged to be due hehad received any further advances which might be deducted undersub-section (6) of section 3. I must therefore hold, .following myjudgment in 395, P. C., Kandy, 10,369 (Ogilvy v. Caruppen1), that,inasmuch as it. is not proved that the deduction for the watchers'wages was made from the defendant’s wages with his consent, thedefendant had sufficient reason to believe that his wages for Marchhad not been paid so as to entitle him to quit service without leaveon the ground of reasonable cause.
The conviction must therefore be set aside.
Appeal allowed.
(1908) 11 N. L. R. 300.