1944 Present: Soertsz J.

WRIGHT, Appellant, and RAMANATHAN,
 Respondent.

165-M. C. Kandy, 10,566.

 

Labourer-Employment of labour on terms of employment less favourable than the recognized terms-Defence of accused-Offer of material benefits to labour to make good difference in terms-Payment of daily average wage essential-Emergency Powers Defence Acts, 1939 and 1940.

Where the accused was charged under paragraph 11 (1) of the Essential Services (Avoidance of Strikes and Lockouts) Order in that he employed labourers on terms of employment less favourable than the recognized terms and conditions of employment for the district concerned.

Held, that it was no defence to the charge that the labourer received other material benefits in virtue of which the difference was made good to him and that in the result the terms and conditions were not less favourable.

Held, further, that regardless of the number of hours work a day contracted for between the employer and the labourer the minimum daily wage fixed for the working day should be paid to the labourer.

Attorney-General v. Urquhart (34 N. L. R. 393) followed.

APPEAL from a conviction by the Magistrate of Kandy.

H. V. Perera, K.C. (with him E, F. N. Gratiaen and D. W. Fernando), for the accused, appellant.

Mervyn Fonseka, S.-G., K.C. (with him H. W. R. Weerasooriya, C.C.), for the complainant, respondent.

Cur. adv. vult.

May 15, 1944. SOERTSZ J.-

It is undisputed and, indeed, indisputable that the appellant has been a considerate and even generous employer, and that his "labourers "have been more than satisfied with the wages he paid them, and with all he did for them. But, the case for the Crown is that an employer must be just according to the requirements of the law, before he is generous in accordance with his own views and, it is contended that in that respect, the appellant has been found wanting.

There were three charges brought against him, and the substance of each charge is that in respect of the labourer named in it, he had contravened paragraph 11 (1) of the Essential Services (Avoidance of Strikes and Lockouts) Order, in that he employed that labourer on terms and conditions of employment less favourable than the recognized terms and conditions of employment for the district concerned. These charges relate to the terms and conditions of employment in the month of March. 1943. Paragraph 11 (1) of the Order under which the charges were laid in a defence regulation made under The Emergency Powers Defence Acts, 1939, 1940 is in these terms: -

" No employer shall, in any district, employ any workman in any essential services in that district on terms and conditions of employment less favourable than the recognized terms and conditions of employment for that district. "

An Order made by the Governor in the exercise of powers duly vested in him defines " essential services " and the part of that definition relevant to this case is the part that declares that those " services are of public utility, essential for the prosecution of the war and essential to the life of the community " which consist " of work or labour of any description whatsoever rendered or performed by persons engaged or employed in or in connection with .... all business, or undertakings concerned in the production, manufacture, sale or exportation of tea, rubber, or plumbago."

The appellant's estate is a rubber estate, and in the case of the labourers Suppen and Weerappen, it is admitted that' their work or labour was connected with the production of rubber. They were tappers. The case of Palaniandy, however, is disputed. It is asserted that he was engaged, at least in the month of March, 1943, that is to say the month to which the charge relates, in food production and not as a tapper and that he was not in an essential service in the relevant period. But the evidence is clear that he was, primarily and essentially, a rubb