Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Wood Renton.

HORTIN v. MOOKEN.

P. C, Panwila, 19,843.

Notice of intention to determine contract of service-Letter by proctor- Delivered by cooly in person- " Personally signify "-" Employer "-Ordinance No. 9 of 1909, s. 20.

A cooly who, in the absence of the Superintendent, delivered in person to the Assistant Superintendent, who was the chief person in charge of the estate during the Superintendent's absence, a letter written and signed by his proctor giving notice of his intention to determine his contract of service, was held to have " personally signified " his intention within the meaning of section 20 of Ordinance No. 9 of 1909.

THE facts of the case are fully set out in the judgments. The case was first argued before Grenier J., who referred the case to a Bench of two Judges.

H. A. Jayewardene, for the accused, appellant.-The notice written and signed by the proctor is notice by the cooly himself, and not by " any other person " on behalf of the cooly. Even if the notice be deemed to have been given by some " other person " on behalf of the cooly, the cooly has in this case " personally signified "

his intention by delivering the proctor's letter in person to Mr. . Samsten. In Lyall v. Narayanan1 a letter sent by post was held to be a sufficient notice. [Hutchinson C.J.: In that case the notice was not sent by " any other person. "] Here the letter was delivered in person. [Hutchinson C.J.: Was it delivered to the " employer "?] The Superintendent was absent, and Mr. Ramsten, to whom the letter was delivered, was in charge of the estate during the Superintendent's absence. He was therefore an " employer " under section 3 of Ordinance No. 13 of 1889. Counsel also referred to The Queen v. Muttucarpen Chetty,2 Scowcroft v. Muttusamy Kangany.3

A. St. V. Jayewardene, for the respondent.-Mr. Ramsten was an Assistant Superintendent. The definition of the term " employer " in Ordinance No. 13 of 1889 only includes a Superintendent and not an " Assistant Superintendent ". " Employer " does not include any person who happens to supervise the work of the estate during a temporary absence of the Superintendent. A kangany was held not to be an " employer " in Kandasamy v. Muttamma.4 See also 143 P. C, Kalutara, 13,342.5 In this case the Magistrate does not hold that the appellant personally delivered the letter to Mr. Ramsten.

Cur. adv. vult.

May 2, 1910. HUTCHINSON C.J.-

This is an appeal against the conviction of the appellant on a charge that, being an agricultural servant under a verbal contract of hire and service renewable from month to month, he quitted the services of his employer, J. P. Hortin, without leave or reasonable cause, an offence under section 11 of Ordinance No. 11 of 1865.

The appellant was a Cooly on Selvakande estate, of which Mr. Hortin was Superintendent. At the beginning of December last Mr. Hortin was at Kandy attending the Supreme Court as a juror. There is no evidence how long he was absent, but he returned on December 8. The Assistant Superintendent was Mr. Ramsten; he resided on the estate, and his ordinary duty was to keep the check roll and supervise the work of the coolies; he had not the right to pay off coolies. During Mr. Hortin's absence he opened letters addressed to the Superintendent.

On December 6 the appellant got his proctor to write out a notice for him addressed to the Superintendent in these words: " I am instructed by Mooken Waddamalli " (the appellant), " of the above estate, to give you notice that he will, one month after receipt hereof, quit your service." This was signed by the Proctor, but not by the appellant. The appellant took it himself and

Foot Notes:

1 (1910) 13 N. L. R. 28.
2 (1886) 8 S. C. C. 53.
3 (1887) 8 S. C. C. 86.
4 (1896) 2 N. L. R. 71.
5 S.C. Min., March 22, 1910.

handed it to Mr. Ramsten on December 7, and