104-NLR-NLR-V-18-SMITH-v.-BAWA.pdf
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Present: Wood Benton C.J. and De Sampayo J.
SMITH ». BAWA.1,393-1,394—P. G. Gampola, 7,669.
Cooly employed without a discharge ticket—Is ike cooly hound by a contractof service to his newemployer?—Harbouringcooly toko had
deserted the new employer tofu* had not received discharge ticketsOrdinance No, 9 c/ 1909, s. 23—Ordinance No. 13 of 1889.
A cooly taken into the service of an employer in violation of theprohibition contained in section 28 of Ordinance No. 13 oi 1889,as amended by Ordinance No. 9 of 1909, is not “ bound ” by a" contract 11 to serve him within the meaning of Ordinance No. 11of 1865. –
“ The employer is not. in law entitled to enter into any otherkind of contract with a cooly except one from day to day or bythe job, unless he has received the formal discharge ticket."
jjl TTFj facts are set out in the judgment of De Sampayo J.
Wadsworth, for first accused, appellant.
J. de Saram, for second and third accused, appellants.
Drieberg, for complainant, respondent.
Cur. adv. vult.
October 18, 1915. Db Sampayo J.—
The accused were charged with having unlawfully harbouredcertain Indian coolies who had been employed on Bamagallaestate. The coolies had come to Barnagalla estate from Ovah
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1915*
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estate on Jtdy 20 and deserted on Jgly 25. The accused werealleged to have harboured them on July 26 and 27.. The# discharged7t&kets in respect of the coolies were received from Ov&h estate
Sn&hv. only on July 30. 4t the time of the desertion the oooliee’ namesB&w had been entered on the oheok roll, but not on the estate
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* register^ In these circumstances the point was taken, when thecase first came before me, that there was no legal contract of servicebetween the * complainant and the coolies, in view of the provisionof section 23 (1) of the Ordinance No. 13 of 1889, as amended bythe Ordinance No. 9 of 1909, and that therefore no offence wascommitted by the accused under section 19 of the Ordinance No. 11of 1865, under which the present charge was laid. In support ofthis contention counsel for the accused cited Scott v. SeUan Kangany,1decided by Wood Benton J. Counsel also referred to my owndecision in a somewhat different sense in .Robertson ®. ldroos* atthe argument of which Scott v: SeUan Kangany 1 was not eited. Myjudgment, however; does not quite bear on the specific point now*raised, because what I had there to consider was whether for thepurpose of a charge under the Ordinance No. 11 of 1865 a cooly'e.name must be borne on the estate register. But the point was no^doubt indirectly involved; and it being a matter of considerableimportance 1 referred it to a bench of two Judges, especially as itappeared to me that the effect of section 24 (3) of the OrdinanceNo. 13 of 1889 had not been taken into consideration in Scott t>.SeUan Kangany1 had in view the consideration of the questionwhether section 23 of the Ordinance No. 18 of 1889, as amended bythe Ordinance No. 9 of 1909, had any greater effect than penalizingan employer who should take into his employ an Indian cooly beforedischarge tickets were received from the previous employer. Inthat connection I noticed (1) that that section, while prohibitingthe employment of coolies without discharge tickets, and imposinga penalty for doing so, did not expressly declare the contract asbetween the cooly and the employer .to be null and void; and (2)that section 24 (3) appeared to recognize a valid contract beforethe receipt of discharge tickets. Another difficulty was .thatsection 5 of the Ordinance No. 13 of 1889, which provides that" every labourer who shall enter into a verbal contract with theemployer .whose name shall be entered in the check roll'
of an estate and who shall have received an advance of rice ormoney from the employer . shall be deemed and taken inlaw to have entered into a contract of hire and service for theperiod of one month; to be renewable from month to month, &e., **had been left untouched by the amending Ordinance. In thesecircumstances I was inclined to consider it possible to hold, thatso far as the cooly himself was concerned there was a bindingcontract of service, even though the employer had not observedi (1014) U N. L. R. $60.* (1926} U N. L. B* 884. .
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the requirements of the Ordinance as regards discharge tiokets,. andthat therefore any person who should seduce from service or harboura cooly so bound would be Jiable to be prosecuted under section 19of the principal Ordinance, No. 11 of 1865.•
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DbSabd^vo
J.
V.
After the further argument * of the appeal, and upon fuller con-sideration, I agree that the above view is not correct. The policyof the later legislation on the subject of estate labour, to* be gatheredfrom the whole scope and nature of its enactments, appears intendedto render illegal a contract of service except under the conditionsmentioned in section 23. If section 24 (8), which speaks of a " newemployer ” Applying for discharge tickets, be understood—as itmight be, though the language is not very happy—as referring to aprospective new employer, and not to an employer who has alreadytaken a cooly into service, then the construction of section 23 in.thesense just mentioned.is not irreconcilable with it. As regards section5 of the Ordinance No. 18 of 1889, I think that, for the purposeof advancing the foam objects of .the later legislation, the provisionof that section may be limited to mean that, when a contract hasbeen properly entered into with a labourer as elsewhere provided;*the contract in respect of duration shall be deemed and taken to bea contract for a month, renewable from month to month. Thisbecomes clearer from the fact that the interpretation clause enactsa " labourer means any labourer and kangany … whose name is
borne on an estate register, ” and that a labourer’s name will notproperly be put on the register before discharge tickets are received.
I therefore agree with the Chief Justice, that when an Indian coolyis employed on an estate without the documents mentioned in para-graphs (a), (6), and (c) of section 23 (1) of the Ordinance No. 18 of1889, as amended by Ordinance No. 9 of 1909, he is not“ bound by any^contract to serve ” within the meaning of section 19 of the OrdinanceNo. 11 of 1865, and that any person harbouring him in such circum-stances is not legally guilty of an offence under the latter Ordinance.
, This holding determines the appeal. The conviction is set asideand the accused acquitted.
Wood Renton C.J,—
The point referred in this case to a bench of two Judges is thequestion whether, in view of the joint provisions of sections 19 of Ordi-nance No. 11 of 1865 and 23 (1) (a) of the Indian Coolies Ordinance,1909 (No. 9 of 1909), the harbouring, or an abetment of the harbour-ing) of a cooly is punishable, where the alleged offence has beencommitted before the discharge ticket has been issued by the cooly'sformer employer and received by his new employer. There areconflicting angle Judge decisions on this question (Scott v. SeUanKangany;1 and Rob&rtson v, ldroos*), and as the matter is one ofconsiderable importance a definite ruling in regard to it is desirable.
* (UZtf) 14 N. L. R, 880.* (1926) U N. L. R. m.
Under section 19 of Ordinance ho. &V of 1865 the cool; allege#to have been harboured must hove been bound by a “con-tract” to serve the person in whose ^employment he was.at' thetifne of the harbouring. Section 28 (1) (a) of the Indian CooliesOrdinance, 1909 (No. 9a of 1909), is one of a group of sectionsadded eby that enactment to Ordinance No. 18 of 1889, and, byvirtue of section 2 of Ordinance No. 18 of 1889, is to be readand. construed as a part of the principal Ordinance, No. 11 of1865. Section 28 provides that—
“ (1) No employer shall take into his employment or allow to boemployed on any contract on his estate any labourer® other than aboy or girl trho has been bom in Ceylon and has not previouslybeen employed on an estate, unless he has received in respect ofsuch labourer—
“ (a) A discharge ticket issued and forwarded to him by someother employer in accordance with section 24; or
” (5) In the ease of a newly imported labourer, a certificateissued from the cooly depot at Ragama in accordancewith section 25; or
" (c) A certificate issued by a Police Magistrate in accordancewith section 26.
” (2) Any employer who shall take into bis employment or shellallow to be employed on any contract- on his estate any labourerin contravention of this section shall be guilty of an offence, -andshall be liable on conviction thereof to a fine which may extend tofive hundred rupees, or to imprisonment of either description for aterm not exceeding six months, or .to both. ”.
Does this section merely penalize a contravention of its provi*sions, or does it absolutely prohibit the act/ penalized, so ,that acooly taken into the service of an employer in violation of theprohibition is not “ bound ” by a “ contract ” to serve him withinthe meaning of Ordinance No. 11 of 1865 ? In my opinion section23 (1) (a) has the latter effect. It directly prohibits the employmentof a cooly unless the discharge ticket has been not only issued andforwarded to, but received by, the employer. It is clear from section25 (2) that compliance with the requirement of section 28 (1) (7>), asto the forwarding of a Ragama certificate in the case of a newlyimported labourer, is a condition precedent to the commencementof the contract of service, and from the language of section 26 (1),that until the issue of a certificate by a Police Magistrate, as providedfor by that section and by section 28 (1) (c), the cooly has only an“ intending employer ” to deal with.
The points telling against this interpretation of the law are, inthe first place, that section 5 of the principal Ordinance, which hasnot been modified in this respect by the later legislation, stillrecognizes the commencement of a contract of service when thename of the labourer has been entered in the check roll of an estate
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.and has received an advance of rice and money from his employer;o
in the second place, that section 24 (8) appears to indicate that g Wood
.cooly may have a “new employer ” before the formal discharge Renton C.ticket is issued; and, in the last place, that, as under that section SrcJhv.a period of five days may elapse between the application for a Q &awa•discharge ticket and its being forwarded, the cooly w<?uld bedeprived, at least during those five days, of the right to enter intoa contract of service. These considerations possess undoubtedweight. But I do not think that they can prevail over the language* of section 23#(1) (a) of the Indian Coolies Ordinance, 1909. Section5 is earlier, in point both of date and of order, than section 23 (1) (a).
By virtue of section 3 of Ordinance No. 18 of 1889, as re-enactedby section 2 of the Indian Coolies Ordinance, 1909, the entry of-the name of the cooly on the estate register is, strictly speaking,necessary to make him a “ labourer ” within the meaning ofsection 5 of the Ordinance of 1865, and the law has been definedin thip sense. Sea P. C. Matale, No. 87,727. 1 'It appears to methat section 5 must be held to have been modified, not only to thatextent, but also as regards the date at which a contract of service,may begin, by the provisions of the later enactment. The words
new employer ” in section 24 (3) of the Indian Coolies Ordinance,
1909, do not, in my opinion, mean anything more than “ intending•employer “ in the sense in which that term is used in section 26 (1).
The hardship to the cooly from the alleged suspension of his•contractual rights for a period of five days may perhaps be overcomein this way. The Legislature has prohibited nothing but theentering into a contract under the group of Ordinances with whichwe have here to deal. A contractor for work “ usually performedby the day or by the job ” does not fall within the scope of thoseenactments. Now the employer is not in law entitled to enter intoany other kind of contract with a cooly except one from day to dayor by the job, unless he has received the formal discharge tioket,and, as I have already said, there is nothing in any of the Ordinancesto prevent him from doing so. He has the right to say to the coolyin effect: “Till I receive your discharge ticket I cannot contractwith you under the labour law, but in the meantime I will engageyou as a servant by the day or by the job/’ A contract of this•description will not create the special rights and duties which theLabour Ordinance have brought into existence. But it is a validcontract for aU that, so far as it goes, and it will give tire cooly theright to receive either the stipulated wages or reasonable remune-ration for any work done by him until the provisions of section23 (1) (a) have been complied with.
1 agree to the order proposed by my brother De Sampayo.
Set aside.
i 3. C. M., Mag IS, 1912.
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