Present: De Sampayo J. and Schneider A.J.

 BURNE v. MUNISAMY

650-P. C. Kalutara, 50,525

Calendar month-Notice of    intention    to   quit   service--Ordinance    No.    IX    of 1865-Computation  of   time.

Under Ordinance No. 11 of 1865 a labourer can give on any day of the month notice of his intention to quit at the end of a month from the day of such, notice.

Where such notice was given by a cooly on June 11, it was held that the calendar month expired at midnight on July 11.

THIS case was referred to a bench of two Judges by Loos A.J. The following is his judgment: -

The accused was convicted of having quitted the service of the Superintendent of Miriswatta estate without leave or reasonable cause, under the provisions of section 11 of the Ordinance No. 11 of 1865.

On June 11, 1919, a notice was received by the complainant from the accused and several other coolies of the estate that they will quit his service on the expiration of one month from that date, and on July 11, 1919, at 6.15 a.m., the accused quitted the estate.
It was contended on behalf of the accused-appellant that one calendar month had expired, and that he was, therefore, entitled to quit on July 11.

The Magistrate convicted the accused, being bound by the decision of this Court in P. C. Nuwara Eliya, No. 2,641, to the effect that a calendar month's notice to quit service should be given before the first of the month, to commence with the first day of the month and terminate with the end of that month, but expressed a doubt as to whether section 4 of the Ordinance No. 11 of 1865 did not provide that a labourer's contract could be terminated by a notice of one month composed of broken periods of calendar months.

I am of opinion that there is room for doubt on this point, and as the matter is one in which the question should be finally decided by this Court, I think it is desirable that this appeal should be listed before two Judges for decision.

J. S. Jayawardene (with him Sunderam), for accused, appellant.-

 Notice to quit may be given to run from any day in the month. See Grenier (1873) 42.     The statement in the case relied on by the

Magistrate (1 Ceylon Law Recorder 33) is only obiter. The month expired on July 10. The accused was right in quitting service on  July 11 See Migotti v. Colville.1[ 1 48 L. J. C. P. 695.]

Wijemanne, for complainant, respondent.-The month expired on the midnight of July 11.    Counsel referred to I C. W. R. 22.

Cur. adv. vult.

September 22, 1919.    De Sampayo J.-

The accused was a cooly employed on Miriswatta estate on a monthly contract of service. On June 11, 1919, he gave notice of his intention to quit service at the expiration of one month from that date. He left the estate at 6.30 a.m. on July 11, 1919, and he has been prosecuted for quitting service without reasonable cause, and without giving due notice. The Police Magistrate convicted the accused and sentenced him to two week's simple imprisonment, and the accused appealed. My brother Loos has referred the case to a Bench of two Judges, especially in view of the judgment of my brother Schneider in P. C. Nuwara Eliya 2,641.2        [  2 Ceylon Law Recorder 33.]

The points of law to be determined are (1) whether the calendar month for which notice is required to be given should commence on the first day of a month and terminate on the last day, or whether it may consist of broken periods of two months; and (2) whether the month had expired when the accused in this case quitted service on July 11.

In the Nuwara Eliya case above referred to, my brother Schneider considered that for this purpose a calendar month meant a month commencing from the first day of the month and terminating on the last day. I entertain a different view on this point. The provision of section 3 of the Ordinance No. 11 of 1865 is that every verbal contract of service shall be deemed to be a contract for t