026-NLR-NLR-V-11-LITTEN-v.-PERERA.pdf
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1908.
March 16.
Present: Mr. Justice Wendt.
LITTEN v. PERERA.
P. C., Matale, 29,789.
Master andservant—Sinhaleselabourer—Presumptionof monthly con-tract—Expressagreement—Liability—OrdinanceNo. 13 of 1689,
s. 5—Defective plaints—When warrant shouldbeissued.
Wbndt J.—The presumption created by section 5 of OrdinanceNo. 13 of 1889 from the fact of a “ labourer’s ” yUsme being enteredio the check roll,coupled withthefact ofreceipt byhim ofan
advance of rice or money from his employer, docs not arise in thecase of a Sinhalese, henot beinga .“labourer”within < hemeaning
of the Ordinance.
But the presumptioncreated bysection 8ofOrdinanceNo. 11.
of 1865 applies -, and ' the complainant’ may prove, with the aid ofsuch presumption, sucha contractof serviceas,in case of breach,
would., render the servant liable to the penal provisions of the Ordi-nance.
A warrant of arrest should not be issued in the first instanceunless -the Courthas reasontobelievethat theaccusedhas
absconded or will not obey summons.
A
PPEAL with the sanction of the Attorney-General from anacquittal.
The facts sufficiently appear in the judgment.
Van Langenberg, for the complainant, appellant.
Wadsworth, tor the accused, respondent.
Cur. adv. null.
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March 16, 1908. Wendt J.—
This is an appeal with the sanction of the Attorney-General 1908.against the acquittal of the accused on the charge that he, being an March 16.agricultural servant bound by a monthly contract of hire andservice to serve the Superintendent of Madawela estate, did onNovember 25, 1907, quit the service of his employer without leave,reasonable cause, or notice, and thereby committed an offencepunishable under section 11 of the Ordinance No. 11 of 1865. Theground of the acquittal as I gather it from the judgment, in whichthe Magistrate’s reasons are not very clearly expressed, is that theaccused had not been shown to be a servant within the meaning ofthe Ordinance under which he was charged.
The facts proved were as follows: —
The accused, who is a Sinhalese, was head kangany of Madawelaestate, having fifteen sub-kanganies under him. His name, assuch head kangany, appeared on the check roll from July, 1906,up to the date of his alleged offence. He had received rice and cashadvances. In June, 1907, his wages up to the end of May werepaid. June wages were set off against advances, and July andAugust wages were paid into accused's hands. Dr. Kuntze, a partproprietor of the estate, deposed that accused " worked as a monthlyservant. ” He added that in January or February. 1907, someSinhalese coolies under accused having run away without notice,he was advised by his proctor to get his Sinhalese labourers to enterinto a monthly contract, because the presumption created bysection 5 of the Ordinance No. 18 of 1889 did not apply to them.
That he informed accused of this, and then “ entered into a monthlycontract with the accused and . the other Sinhalese labourers amonthly service. I made them to understand that they were to giveme a month’s notice if they wished to leave service. Since January,
accused has been working as a monthly servant. ’ In cross-examination the witness said that he could not give the date whenhe made the monthly contract, nor the exact words used by him,nor the names of the coolies present. He added that accused wasto be paid so much a day like the Tamils. His wages were calcu-lated at a certain rate per day, and at the end of the month witnessfound out the number of days he had worked and deducting ricepaid the balance.
The presumption raised by section 5 of the Ordinance No. 18of 1889 from the fact of a “ labourer’s ” name being enteredin the check roll, coupled with the fact of receipt by him of anadvance of rice or money from his employer, not being applicableto the accused because he was not a “ labourer ” within themeaning of that Ordinance, the complainant had no doubt toprove without the aid of that section a monthly contract of hireand service such as would bring the accused under the Ordinanoe
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1908.
March 16.
Wendt J.
No. 11 of 1865. It was not necessary in the first instance thathe should prove in full every term of such a contract, because hewas entitled to call to his aid the presumption created by section 3-of the Ordinance No. 11 of 1865. That section enacts that “ everyverbal contract for the hire of any servant, except for work usuallyperformed by the day, or by the job, or by the journey, shalL(unless otherwise expressly stipulated, and notwithstanding thatthe wages under such contract shall be payable at a daily rate) bedeempd and taken in law to be a contract for hire and service forthe period of one month, and .to be renewable from month to-month. ” That is just such a contract as in case of breach wouldrender the servant liable to the penal provisions of the Ordinance.The accused being a “ kangany ” was by the interpretation clause-of the Ordinance included in the term “ servant the work upon-which he was employed was agricultural work, and therefore notwork usually performed by the day, or by the job, or by the journey(Smith v. Muttoe1). There is no proof, there is not even anysuggestion, that the contract under which he worked was not &verbal contract. The foundation Is therefore laid for the presump-tion, and the burden lies upon .the accused to displace it if thepresumed state of the contractual relations between himself andhis employer is at variance with their true state. The MagistrateI think failed to appreciate the significance of section 3 of theOrdinance No. 11 of 1865. He does not mention it in his judgment.The case must go back for the hearing of the defence.
Before quitting the case I would call the attention of the Magis-trate to the irregular manner in which a warrant appears to have-been issued instead of the usual summons to secure the attendanceof the accused. It is only when the Court sees reason to believethat the accused has absconded or will not obey summons that a.warrant should issue in the first instance. Unless the Court has-evidence before it, it will not “ see reason to believe. ” The com-plaint in the present instance was contained in one of those slovenlyprinted forms eked out with manuscript, which have time and againbeen condemned by this Court as leading to carelessness and neglectof the requirements of the law. At the foot of it is printed a form(now altered in manuscript) of affirmation by a non-Christian tothe effect that “ the attendance of the defendant cannot be securedby ordinary summons.” That is not a sufficient affidavit. Suchas it is, however, the printed jurat is not dated nor signed. On the-second page of this multifarious document is a print of what isintended for a compendious summary of evidence to be given bythe Superintendent of the estate, presumably intended to supplythe place of the examination of the complainant which section 49of the Criminal Procedure Code requires the Magistrate- to make hs
1 Ram. (1863) 9.
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a first step in taking cognizance of the case. The blanks in thisprinted form bear signs of having been filled up by the complainant’snroctor before the complaint was presented to the Court. Theonly thing which the Magistrate appears .to have written in thewhole document is a word that looks like “wts,” followed by hissignature, perhaps intended .to indicate that the Magistrate wassatisfied that there were primA facie grounds for charging the accusedwith a criminal offence and bringing him before the Court, and thataccused had absconded or would not obey a summons. But allthose are matters which ought clearly to have appeared on therecord. The Magistrate would do well to discourage the use ofsuch printed forms, and to record or cause to be recorded in hispresence the examination of the complainant after and not beforesuch examination takes place.
The acquittal of .the accused is set aside, and the case sent backto the Police Court for the resumption and completion of the trialaccording to. law.
Appeal allowed; case remitted.
♦1908.
March 18.
Wkndt J.