Van Langenberg V. Veerasamy

1914 Present: Lascelles C. J.

VAN LANGENBERG v. VEERASAMY.

349-P. C. Kalutara, 29, 759.

Harbouring a deserting cooly-Labour Ordinance, No. 11 of 1865, s. 19- May assistant superintendent prosecute in offences against the Labour Ordinance ?

An assistant superintendent of an estate charged the accused under section 19 of Ordinance No. 11 of 1865 for harbouring a deserting cooly. The objection taken in appeal that the complaint should not have been accepted, as it was made by the assistant superintendent and not by the superintendent, was over-ruled.

The proprietor of a tea estate Is prima facie a proper person to prosecute. But his duly authorized agents are equally competent for the purpose.

The opinion that an assistant superintendent cannot make complaints of offences against the Labour Ordinances rests on no solid ground either of principle or of authority.

Hall v. Kandeswamy 1 doubted.

THE facts are set out in the judgment.

Wadsworth, for accused, appellant.

A. St. V. Jayewardene, for complainant, respondent.

foot notes:

1 5 A. C. R. 125.

May 20, 1914. LASCELLES C. J. -

This is an appeal from the conviction of the accused under section 19 of Ordinance No. 11 of 1865 for harbouring a deserting cooly. The principal ground of appeal is that the complaint, being made not by the superintendent of the "estate, but by an assistant superintendent, should not have been accepted and acted on.

Before referring to the authorities on the point, it may be well to observe that the definition of the word " employer " in Ordinance No. 13 of 1889 is not material on this point, as section 19 of Ordinance No. 11 of 1865 deals with " servants or journeymen artificers " generally, and has no special application to Indian immigrant labourers. Further, the section makes no specific reference to the " employer, '' and is silent as to who is the proper person to institute proceedings under the section. In as much as it is the person employing the servant or journeyman artificer who is aggrieved by offences under the section, he is obviously the most natural and proper person to be the complainant in charges under the section.

But as the actual employer frequently entrusts the management of his servants to an agent, the agent, in these cases, is a proper complainant. The question whether an assistant superintendent in charge of a division is a proper person to complain of offences under section 19 with regard to the labourers in his charge depends upon the extent of the authority which he has received from his employer. In the absence of direct evidence, which is rarely forthcoming on this point, the extent of an assistant superintendent's authority must be inferred from his position, due regard being had to the system under which estates are carried on in Ceylon.

The case law on the point is not in a satisfactory condition. In Hall v. Kandeswamy l Hutchinson C. J. felt himself obliged by two previous decisions of this Court to hold that a prosecution by an assistant superintendent under section 11 of Ordinance No. 11 of 1865 was bad, in default of evidence that the prosecution was authorized by the superintendent or by the accused's employer. I think I am right in saying that the soundness of this decision has more than once been doubted. The two previous decisions referred to are Kandesamy v. Mutamma 2 and Caldera v. Mutamma, 3 In both these cases the actual question decided was that a prosecution by a kangani is illegal without proof of the authority of the employer to prosecute. Neither judgment refers to the position of an assistant superintendent; neither judgment differentiates between superintendents and assistant superintendents as regards their authority to prosecute under Ordinance No. 11 of 1865.

Foot notes:

1 5 A. C. R. 125.                  
2 2 N. L. R. 71.
3 6 N. L. R. 120.

But in Kandesamy v. Mutamma [2 N. L. R. 71.] Bonser C. J. stated: " In my opinion the

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