063-NLR-NLR-V-45-WRIGHT-Appellant-and-RAMANATHAN-Respondent.pdf
SOEBTSZ J.—Wright and Ramanathan.
243
±QHPresent: Soertsz 3.
WEIGHT, Appellant, and RAMANATTTAX, Respondent.
165—M. C. Kandy, 10,566.
Labourer—-Employment of labour on terms of employment less favourable thanthe recognized terms—Defenceof accused—Offer of material benefits
to labour to makegood differenceinterms—Payment ofdailyaverage
wageessential—Emergency Powers Defence Acts, 1939 and1940.
Where the accused was charged under paragraph 11 (1) of the EssentialSendees lAvoidance of Strikes and Lockouts) Order in that he employedlabourers on terms of employment less favourable than the recognizedterms and conditions of employment for the district concerned.
Held,that it wasno defence tothecharge that the labourerreceived
other material benefits in virtue of which the difference was made goodto him and that in the result the terms and conditions were not lessfavourable.
Held,further, thatregardless ofthenumber of hoursworka day
contracted for between the employer and the labourer the minimumdaily wage fixed for the working day should be paid to the labourer.Attorney-General v. Urquhart (34 N. L. R. 393) followed.
A PPEAL from a conviction by the Magistrate of Kandy.
H. Y. Perera, K.C. (with him E. F. N. Gratiaen and D. W. Fernando),for the accused, appellant.
Mervyn Fonseka, S.-G., K.C. (with him H. W. R. Weera-sooriya, C.C.),for the complainant, respondent.
Cut. adv. vult.
May 15, 1944. Soektsz J.—
It is undisputed and, indeed, indisputable that the appellant has beena considerate and even generous employer, and that his—labourers Ravebeen more than satisfied with the wages he paid them, and with all hedid for them. But, the case for the Grown is that an employer must bejust according to the requirements of the law, before he is generous inaccordance with his own views and, it is contended that in that respect,the appellant has been found wanting.
There were three charges brought against him, and the substance ofeach charge is that in respect of the labourer named in it, he had contra-vened paragraph 11 (1) of the Essential Services (Avoidance of Strikesand Lockouts) Order, in that he employed that labourer on terms andconditions of employment less favourable than the recognized terms andconditions of employment for the district concerned. These chargesrelate to the terms and conditions of employment in the month of March,1943. Paragraph 11 (1) of the Order under which the charges were laidin a defence regulation made under The Emergency Powers DefenceActs, 1939, 1940 is in these terms: —
i
Iso employer shall, in any district, employ any workman in anyessential services in that district on terms and conditions of employ-ment less favourable than the recognized terms and conditions ofemployment for that district. ”
244
SOERTSZ J.—Wright and Ramanathan.
An Order made by the Governor in the exercise of powers duly vestedin him defines “ essential services ” and the part of that definition rele-vant to this case is the part that declares that those “ services are ofpublic utility, essential for the prosecution of the war and essential to thelife of the community ’ ’ which consist ‘ * of work or labour of any descriptionwhatsoever rendered or performed by persons engaged or employed inor in connection with …. all business, or undertakings con-cerned in the production, manufacture, sale or exportation of tea, rubber,or plumbago.”
The appellant’s estate is a rubber estate, and in the case of the labourersSuppen and Weerappen, it is admitted that their work or labour wasconnected with the production of rubber. They were tappers. Thecase of Palaniandy, however, is disputed. It is asserted that he wasengaged, at least in the month of March, 1943, that is to say the monthto which the charge relates, in food production and not as a tapperand that he was not in an essential service in the relevant period. Butthe evidence is clear that he was, primarily and essentially, a rubbertapper, although from time to time he appears to have done such otherwork as he was directed to do. He had been on this estate all his life,and long before food production became one of the enterprises on theestate. Having* regard to the evidence, as a whole, there can, I think,be no doubt that the Crown has established that part of its case whichrested on the allegation that these three labourers were employed inessential services.
The next question is whether they were employed “ on terms andconditions less favourable. ” than those “ recognized for that district ”.Now, sub-paragraph (2) of paragraph 11 of the Order that applies inthis ease says what the phrase “ recognized terms and conditions ofemployment ” means. It means—
(a.) the terms and conditions of employment set out in an award madeby a District Judge where there has been an award;
the terms and conditions set out in an agreement, reached on a
dispute settled in that district;
where there has been no award, or agreement, or settlement,
" the terms and conditions on which a workman in that districtis ordinarily employed in the same capacity or in some similarcapacity.”
So far as this case is concerned, it is the last clause (c) that matters, and-the real issue between the Crown on the one side, and the appellant,on the other, is whether the terms and conditions on which the appellantemployed these three men, in the month of March, 1943, were less favour-able than those on which rubber tappers in that district were ordinarilyemployed.
The case for the Crown is that the terms on which they were ordinarilyemployed in that district were that they received as wages, fifty-fivecents a day, for each and every wroking day of eight hours excluding amid-day meal adjournment of one hour, together with a “ dearnessallowance ” of thirty-eight cents a day, and were also entitled to thebenefits and amenities provided for them in virtue of certain Legislative
SOERTSZ J.—Wright and Ramanathan.
245
Enactments relating to the supply of rice, the rendering of maternity andmedical aid, education and things like that. In regard to those benefitsand amenities, it is beyond question that the appellant has more thandone his part. The point in issue is thus reduced to this—were the otherterns and conditions of employment, that is to say the terms of remuner-aetion in the circumstances of this case, less favourable than those recog-nized in the district as applicable to labourers engaged in the capacityin which these three men were employed?
The burden is, of course, on the Crown to establish, beyond reasonabledoubt, thp recognized terms and conditions, and to show that the termsand conditions of employment adopted by the appellant were less favour-able. The defence submits that the case for the Crown fails in boththese respects. It is said that, upon the evidence led, the recognizedterms and conditions for the district have not been sufficiently establishedinasmuch as (a) that evidence takes into account an illegally imposeddearness allowance; (b) includes the inadmissible testimony of the LabourController; and (e) in regard to the testimony of the Superintendents ofWarivapola, Ambalamana, Haloya and Gala ha Estates, that it is nothingmore than evidence of the terms and conditions of employment in fourinstances out of a great multitude of estates, and that as such it cannotbe said to establish the recognized terms and conditions fdr a whole districtany more than one swallow can be said to make a summer.
Tbe objection to the legality of the dearness allowance is based onsec+icn 10 of the Minimum Wages Ordinance (Cap. 114). Sub-section10 ^1) declares, inter alia, that—
“ A minimum rate of wages or a- cancellation or variation thereofshall not take effect until it has been approved by the Governor orpublished in the Gazette.”
Sub-section 10 (2) goes on to say—
“ A notification in the Gazette to the effect that any minimum rate ofwages has been fixed, varied, or cancelled with the approval of theGovernor under this Ordinance, shall be judicially noticed, and shallbe conclusive proof of the fact and the date on which the minimumrate of wages or variation or cancellation thereof takes effect.
Now, in this instance, in regard to the dearness allowance which, after all,is an integral part of the minimum wages, P 6 shows that what the Gover-nor did was to approve such allowance “ as may be fixed by the Controllerof Labour by notification in the Gazette ”, with a direction that it was to be" based on the cost of living index number …. ascertained bvthe department of labour. ” At the time of this notification, therefore,a part of the minimum wages remained to be ascertained. It had,certainly, not been fixed. The Ordinance provides that the minimumrate that shall be judicially noticed and shall-be conclusive proof, is therate fixed, varied, or cancelled and approved by the Governor. Thepower tG approve when vested in an authority necessarily implies a powerto withhold approval and the question whether to approve or not toapprove calls for the exercise of independent judgment by the authorityconcerned, and there is no opportunity for that when approval is givenin advance. I am, therefore, inclined to agree with the submission for
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SOERTSZ J.—Wright and Ramanathan.
the defence that the procedure adopted for fixing that part of the mini-mum wages was irregular, and it would have been necessary to considerthe effect of that irregularity if this prosecution had arisen under theMinimum Wages Ordinance. But that irregularity has very littlebearing, if any at all, in a case in which the charges are laid under theEssential Services Order in which we are concerned with the de facto termsand conditions of employment recognized in the district.
In regard to the evidence of the Controller, for the Crown, the Solicitor-General sought to bring it within the exception to the hearsay rulerelating to official certificates and letters or returns of public officers andhe relied on a passage from the speech of Viscount Haldane in the case ofLocal Government Board v. Arlidge1. But I cannot agree that thisimpeached evidence comes within the exception invoked, or that thecitation from the case in the House of Lords has any bearing on the point.For one thing, the evidence in question is not documentaryevidence inthe form ofcertificate,letter, return, or reward
by a Public Officer relating to matters rendered provable in thatway. For another, all that sub-paragraphs (3) and (4) of paragraph 11of the Order provide is that employers of labour shall be bound to furnishthe Controller with information and particulars in regard to terms andconditions of employment when requested to do so, and that the Controllerhimself shall be bound, in the light of the information he has so gathered,to acquaint employers who seek information, with those terms andconditions. There is no provision, express or necessarily implied, requiringan employer to seek such information or making the information furnishedby the Controller conclusive, or sufficient, or prima facie evidence onthe point. The passage from the speech of Lord Haldane deals with quite adifferent matter. It would have been to the point if the information gatheredby the Controller and communicated to the employer seeking informationhad been given evidentiary value by the Ordinance, and objection hadbeeu taken to it on the ground that the information had not been gatheredin Ihe way judicial tribunals gather information.
In my opinion, therefore, the evidence of the Controller was inad-missible. It was, admittedly, hearsay and could save itself from rejectiononly by coming within some recognized exception. But -there is no suchexception.
There remains the evidence of the four Superintendents and of theInspector of Labour. The evidence of the former is, undoubtedly,direct evidence and it establishes that on the four estates in their charge,which are large estates employing considerable labour forces, among therecognized terms and conditions of employment is the payment of theminimum wage fixed by notification at 93 cents. The question, then, iswhether on that evidence, it can be said that the recognized terms andconditions for the district -have been established. It was not contendedthat the Superintendents or similar officers of all the estates in the districtor even that the majority of them should have been called, but it was saidthat officers from a considerable number of the estates in that districtshould have been called to speak to the terms and conditions of employ-ment before it could have been claimed that they had been established.
1 (1915) A. C. 120 at page 133.
SOEBTSZ J.—Wright and Ramanathan.
247"
The proof of a fact is hardly ever made to depend on the number ofwitnesses called. It must depend on the quantity and the quality of theevidence in the particular circumstances of a case. In this case, we haveit established that, by notification in the Government Gazette, all estate-owners were informed that the minimum wage had been fixed at 93 centsfor a working day of eight hours with a mid-day break of one hour, andit seems to me that, in the light of common sense and experience to which:a Court may always resort, it may justifiably presume that the require-ment in regard to minimum wages purporting to have legislative forcewould generally be regarded rather than disregarded. In addition tothat presqmption there is here the positive testimony of four competentand reliable witnesses from different parts of the district to the effectthat they, and so far as they know, others have adopted these wagesso fixed as part of the terms and conditions of employment. It wasopen to the defence conveniently to lead evidence to show that there wereestates in the district that did not conform to the rates of wages notifiedin the Gazette. It led no such evidence and, once again, in the light ofcommon sense and experience, a Court may presume that such evidence.vas not led as it was not forthcoming, and that it was not forthcomingbecause estates in the district with the exception of the appellant’sestate, if nothing more, made a virtue of necessity and complied "with therequirement.
There is also the evidence of the Inspector of Labour who visits theestates in the district in the course of his official duties, and he says thathe is aware that the requirement in regard to minimum wages was generallyobeyed, and that in the few instances in which he found it had not beencomplied with, the difference in the rates of wages was made good whenattention was called to it.
On all this material, the Magistrate came to what appears to me to be acorrect conclusion when he found that 93 cents a day for a male labourerwas a recognized term and condition of employment.
The next question for consideration is whether the terms and conditions,on which the appellant employed these three labourers, in the month ofMatch, 1943, were less favourable than those recognized in the district.
Tt will be convenient to take the case of each labourer separately. Todeal with Palaniandy first—the question arises whether. Palaniandy wasan adult. The Magistrate had evidence before him to show that he was,and he also had the advantage of seeing Palaniandy. He was quitesatisfied that Palaniandy was an adult. I see no reason for taking adifferent view. Document X read together with document D 12 showsthat he worked for 26 days in March and was paid Rs. 16. At 93 centsa day he should have been paid Rs. 24.18. There is no evidence that hehimself received any material benefits, other than those he was entitledto receive under other Legislative Enactments', to enable me to say- that- although he was not paid the minimum wages recognized in thedistrict, there were other material benefits he received in virtue of whichthe difference was made good to him and that, in the result, his termsand conditions of employment w;ere not less favourable. The fact thatthe appellant gave gifts to labourers on their coming of age, gettingmarried and on occasions of that kind and also permitted such of them
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SOERTSZ J.—Wright and Ratnanathan.
as required vegetables, areeanuts, &e., to help themselves so far as thetrees and plantations on the estate permitted, certainly shows that theappellant treated his community of labourers extremely well, but thatcannot be held to compensate Palaniandy for the difference between thewages he received and the wages the law said his minimum wages shouldbe.
Tn regard to Weerappen, the same documents show that he worked27 days and received Es, 16.55. He should have been paid Es. 25.11.
In regard to the difference being made good to him in other ways, theobservations I made in dealing with Palaniandy apply to him too.
Then, there is the case of Suppen. According to the • documentsalready referred to, he worked 29 days and received in all its. 28.00^.
At the minimum daily wages rate, he would have received Rs. 26.97 sothat, apparently, he was better off than if he had been paid accordingto the letter of the law, and it is contended for the appellant with anappearance of plausibility that the terms and conditions of Suppen’semployment cannot be said to have been less favourable than thoserecognized in the district. But, the fallacy underlying that contentionis that it involves a confusion of terms in that a daily average wage istreated as interchangeable with a daily minimum wage. The correctway of determining the question of favourableness is not to divide thesum Suppen received for March by the 29 days he worked in that month,but by multiplying the minimum daily wage of 93 cents which hadbecome a recognized term of employment in the district by 29. Theciew taken by the majority of the Bench in the case of Atomey-General v.Urquhart1 leads to the conclusion that regardless of the number of hourswork a day contracted for between the employer and the labourer, theminimum daily wage fixed for the working day had to be paid. Thatview not only binds me but is also the view with which I find myself,respectfully, in complete agreement. In that view of the matter, it isscarcely to the point to say that these labourers could have earned wagesat the daily rate of 93 cents or more if they chose to work the full workingday, particularly where the evidence shows as it does in this case that thelabourers were not informed of their rights and duties under the law,the appellant being content to accept and pay for such work as they choseto do. The evidence also shows that on other estates when labourersfailed to do work sufficient to earn 93 cents a day, the difference was madegood to them. Economically, and even morally, that may be a viciouspractice, but it is a result of a law of the land. For these reasons, I findmyself driven to the conclusion that the charge in respect of Suppen hasalso been established, for if he had been paid 93 cents on those days onwhich he received less than 93 cents, he would have received more thanthe sum of Rs. 28.00J which was paid to him.
As I observed at the very outset, everyone concerned is agreed that theappellant was, in his own way, a very just and even generous employer, •and it may well be that his methods of dealing with labourers wouldhave served them and the state at least as well, if they had been adoptedbv the Legislature. But, the Legislature, unable, I suppose, to rely onthe altruism of all employers, thought fit to adopt other methods and to
1 34 N. L. R. 393.
SOElRTSZ J.—Jayasinghe and Keell & Waldock.
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give those the sanction of law. Once that was done, private opinions andperse nal predilections had to give way for the sake of law and order, or theresult must be that every man would be his own measure.
There remains the question of sentence. The Legislature has fixedsevere penalties for the breach of Defence Regulations, and that is easilyunderstood, but in all the circumstances of this case, it seems hardlynecessary to insist upon the punitive element that a sentence generallyinvolves. It would, I think, be sufficient to pass a sentence that wouldserve to re-asserfc and vindicate the law.
I would, therefore, while affirming the covictions, vary the sentenceon each charge to a nominal fine of ten rupees.
Affirmed.