1913  Present: Lascelles C.J.

JONKLAAS v. MUTTUSAMY.

141-P. C. Kegalla, 16,986.

Labour Ordinance, No. 11 of 1865, ss. 11 and 3-Payment by the quantity of work done-Monthly service-Cooly working under a Public Works Department overseer-Service under the Department.

The circumstance that a labourer's pay depends on the quantity of work which he performs is not necessarily inconsistent with employment on a contract of monthly service.

The case of a labourer who is under a contract of monthly service, and is sometimes called on to perform work which, as a matter of convenience, is paid for by the piece, is clearly distinguishable from that of a labourer whose contract of service consists only of an agreement to perform defined work at a defined rate, according to the quantity of work which he does.

Where a cooly was paid monthly by the District Engineer out of funds voted for the service of Public Works Department, and he received from the same source advances of rice which were distributed by his overseer,-

Held, that the cooly must be held to have entered the service of the Department.

THE facts are set out in the judgment of the learned Magistrate  (W. de Livera, Esq.), which was as follows:-

The accused is an Indian cooly, who was working in the Public Works Department. He is charged by the District Engineer with quitting bis services on or about November 22 without leave or reasonable cause (section 11 of Ordinance No. 11 of 1866). In a prosecution under section 11 of Ordinance No. 11 of 1866 a contract of service must be proved, either verbal, implied, or written. There is no written contract in this case. The presumption raised by section 6 of Ordinance No. 13 of 1889 is not applicable to the accused, because he is not a labourer within the meaning of that Ordinance. The complainant has in this to prove a monthly contract of hire and service as would bring the accused under the Ordinance No. 11 of 1865. The District Engineer has entered into no verbal or written contract with the accused. The contract, if any, has been entered into by the overseer. It is contended that he is the agent of the District Engineer and had full authority to do so. The District Engineer in his evidence has stated how the coolies are taken on and employed. Overseers are not employed unless they can keep coolies. When one overseer leaves, his successor takes over the coolies, paying the debts of the coolies to the overseer who is leaving. The coolies, if they do not want to serve under the successor, are given a tundu, and if they bring this amount of their debts they are discharged by the District Engineer. The debts are due to overseers. The accused in question was under one Nagamuttu when he left. Tambimuttu took over this accused. The accused has been working from June or July, 1912. So far as I can see, the accused is a cooly who broke metal, spread metal on the road, and also did miscellaneous works. There is a check roll, produced, for coolies who do miscellaneous works, and accused's name is entered for eleven days in October, 1912, from 20th to 31st, at 50 cents a day. Then, there is what is called the pay sheet for October, 1912, where I find accused has worked ten days and has earned Rs. 5. This, I take it, is as watcher of steam roller. Then, for spreading ten cubes metal he has earned Rs. 11-50, and for breaking one cube metal Re. 5.60. So he has earned in all during October on pay sheet Rs. 23.20. He has had four bushels rice advanced, Rs. 20. 20, balance Re. 1 . 80, besides the Rs. 5 he had earned as watcher. It is proved this Re. 1-80 was paid to him by the District Engineer on November 14, 1912, and the accused has put this thumb mark on the check roll. There is said to be a separate check roll for each sort of work, but only one (A) has been produced. The coolies have to break metal, and are paid according to the amount they break; they are paid m