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BAINE v. NALLATAMBY
NLR8V258
BAINE v. NALLATAMBY.
P. C., Pussellawa, 35,881.
Tundu-Labour Ordinance, No. 11 of 1865-Effect of tundu-Renewal of contract of service-Quitting service without notice.
The signing of a tundu by an employer of coolies amounts only to an undertaking to discharge them from his employment on receipt of the sum of money specified in the tundu.
Opinion of Withers, J., in P.C., Hatton, 18,713, 31st January, 1896, questioned.
Query.-Whether the issuing of a tundu terminates the contract of service.
Where the wages due to a cooly were tendered on the 29th March and he returned them to the complainant desiring to continue in his service,-
Held, this was a renewal of service, and that the cooly could not quit service on the 4th April without having previously given a month's notice alleging that the wages of January had not been paid.
THE accused, a sub-kangani, was charged with quitting the service of his employer, Mr. A. L. Baines, on 5th April, 1906, without leave or reasonable cause, before the end of his term of service. The Police Magistrate (Mr. W. de Livera) found as follows:-
" It is in evidence that the accused got a tundu from Mr. Baines for himself and his eight coolies who were working on Mr. Barnes's estate. The accused brought a cheque for Rs. 279, the amount mentioned in the tundu, from one Mr. Vytilingam on 29th March, 1905. Mr. Baines accepted the cheque and gave the accused all the wages due to him and his coolies. The same evening the accused returned the wages and expressed a desire to remain on the estate. Mr. Baines agreed to his remaining. The name of the accused appears on the check-roll, and rice was issued to him.
" The cheque of Vytialingam was sent by Mr. Baines to the bank, but was returned by the bank, payment having been stopped by Vytialingam.
" I hold the accused entered into a new contract of hire and service, and on 5th April he could not leave on forthwith notice (on the plea that his wages had not been paid to him though
outstanding for over sixty days). The accused says he remained on the estate, as his wages were not paid in full.
" I hold his wages were paid in full ; there was nothing more due to him ; that the accused returned the wages and sought re-employment ; and that Mr. Baines re-employed him on 29th March, 1905. "
The Magistrate sentenced the accused to one month's imprisonment.
The accused appealed.
Wadsworth, for accused, appellant.-The appeal is on points of law. (1) the superintendent gave the accused a tundu on the 29th March that on receipt of Rs. 279 the accused and his coolies would be free. A cheque was produced and was accepted by the superintendent. Mr. Justice Withers held that the issue of the tundu terminated the contract of service, or at least suspended it. (P. C, Hatton, 18,713, Sup. Ct. Min., 31st January, 1896.) The contract was determined on the 29th March and there is no proof that there was a new contract at any date. The mere fact that the name of the accused appeared in the check-roll, and that accused received advances of rice, would not create a new contract, nor would the fact that accused consented to stay on the estate. As Mr. Justice Withers field, there should be proof that the accused understood fully that there was a new contract.
(2) Even assuming that the contract was not terminated, the accused was at liberty to leave the estate on the 5th April, as at that time the wages earned in January had not been paid for sixty days. (Sections 6 and 7 of Ordinance No. 13 of 1889.) Mr. Baines paid the wages on the 29th March, and the accused returned the amount and Mr. Baines accepted it back. This shows that the wages were due when accused left the estate.
Van Langenberg, for respondent, not called upon.
Cur. Adv. vult.
31st May, 1905. LAYARD, C.J.-
It is argued by appellant's counsel that the issuing of the tundu by Mr. Baines in this case terminated the accused's (appellant's) servi
