PUBLIC RECORD OFFICE
Reference:-
TC.O.88
882
2 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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III-Law applicable to the Counts.
Having stated my opinion of the facts proved by the evidence, I come now to deal with the laws applicable to the various counts.
The foundation of the whole legislation with relation to immigrants is the Royal Order in Council of 7th September, 1888. Upon the provisions made in chapter 4, section 8, of that Order, the complainants founded, as laying down the remedy which they sought to obtain. That section provides that: "On complaint preferred and proof made by a servant before any Stipendiary Magistrate, that his master has not paid the servant's wages or delivered to him the articles stipulated for, or that the articles so delivered were not of the prescribed amount and quality, or that by the negligence or other improper conduct of the master the contract of service has not been faithfully performed, or that the master has illused the servant, the Stipendiary Magistrate may make order for the payment of the wages in arrear, or for the delivery of the stipulated articles, or for compensation to be made to the servant for any injury by him sustained by such negligence or improper conduct of the master, or by non- fulfilment of the contract, or by his ill-usage of the servant; and if such order be not complied with according to the exigency and tenor thereof, the Magistrate shall and may issue a warrant for the seizure and sale of the goods of the master, or so much thereof as may be requisite for making such compensation; and, failing any sufficient distress, the magistrate shall and may make order for the commitment of the master to prison for any time not exceeding one month, unless compensation be sooner made. The Magistrate may also in any of the cases aforesaid, if he shall see fit, order the contract of service to be cancelled, either in addition to or in substitution for any such order as aforesaid."
The contention of the complainants was that every one of the counts in the complaint contained an allegation "of improper conduct of the master, whereby the contract of service had not been faithfully performed," and that the complaint as a whole disclosed grounds upon which their contracts should be set aside.
I. The evidence on the first count points to the conclusion that the complainants were worked for twelve hours per day. Of course this result only applies to those who did not sooner perform the tasks allotted to them. But the evidence clearly showed that a considerable body of them daily failed to finish their task within eleven or twelve hours, and several of the complainants stated that the hard work which was necessary to finish and to escape being marked for "sick work" so fatigued them that they were obliged to remain in camp for a day or two every month, and thus to forfeit for these days both food and pay.
The law with reference to the duration of day work is extremely explicit. Ordi nance No. 81 of 1867, article 22, provides that "no labourer engaged for field labour shall be bound to work more than nine hours per day, exclusive of the hour for breakfast," &c.
The complainants fell under this article, and accordingly the evidence points to a serious and continuous breach of the law, by extending the legal hours for labour by a third of their whole amount.
It may be that each complainant only suffered, to a greater or less extent, from this system of over-working half a dozen times a month, but still the breach of contract involved in such a system was of the most flagrant character. On the supposition that the complainants completed their task by 4 P.M. every day in the week but one, and that on that one day they did not complete it until the bell for ceasing work rung, there would still be more than one legal day's extra labour exacted from them every week, or upwards of two months' labour in each year. Nor is this, as far as I can judge from the evidence, an extreme supposition. endeavoured to ascertain from the complainants and their witnesses how many men, on an average, daily failed to finish their task before 5:30. They could not, however, give me any definite information. The defendant who, from his admission to the Protector, had acknowledged breach of the law, would, I expected, have led evidence to show that that breach only extended to a very few labourers each day; but no much evidence was forthcoming, and from the fact that "sick-work" is commenced to be marked upwards of 15 minutes before the bell for ceasing work rings, I am inclined to think the number of those still on the fields, and whose tasks have to be examined, must be considerable.
There is also another fact which inclines me to think that the men had not unfrequently to continue working the whole twelve hours, viz., that most of the complainants were marked for "sick work" on one or more occasions every month.
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This ground of complaint, of course, included every species of grievance. It involved keeping back rations (the "non-delivery of the articles stipulated for," mentioned in the section of the Ordinance above quoted) from the men; for the ration is due for a day's work of nine hours, and if twelve hours' work is exacted, and nine hours' rations given, one-third of the rations are retained; or, to put it otherwise, taking the case I have supposed, two extra months' labour is exacted during the year, for which no rations whatever are given.
In the same way this count involved non-payment of wages. For wages, too, are covenanted for as a return for the legal labour of nine hours, and for the extra labour, amounting to two months per annum, no wages were paid. I cannot imagine a more serious complaint, or a grosser breach of the contract between the labourers and their employer than that alleged in this count, and to a great extent proved. It must be borne in mind that the offence was not one of mere negligence. The law is too clear and explicit in fixing the duration of daily labour to leave any doubt of its meaning, and the defendant himself admitted that the hours of labour were greatly in excess of those laid down by law. In these circumstances the system must be regarded as an attempt to take advantage of the ignorance and helplessness of Indian immigrants. The only appropriate punishment which could have followed upon the breach of contract proved under this count was, in my opinion, compensation calculated at a penal rate, to the labourers for the time during which they have been overworked; and the cancellation, at the instance of the immigrants, of a contract which had been so systematically infringed by their master.
The 2nd, 3rd, 4th, 6th, and 8th counts,require no notice in this place, as they were, for one cause or another, departed from.
ŏ and 7. The 5th and 7th counts both come under one category, and may here be considered together. These counts relate to deductions made from wages on one pretext or another. Both of the causes referred to in these counts were clearly illegal. The law expressly made provision that in one or two instances, as for example, in the case of sickness, the master may make deductions from his servants' wages, subject always to the obligation of justifying the deduction, if called on, before the Stipendiary Magistrate. In all other cases the reduction of wages on any pretext is beyond the power of the master, and can only be legally done on the order of the Stipendiary Magistrate. The master is bound to furnish his labourer with the implements to work with, and if he finds it advisable for any reason to confide the keeping of the tools to them in non-working hours, he must take the risk of injury to them, and seek his remedy, if injury is sustained by him, before the Stipendiary Magistrate, under the provisions of seo. 7 of cap. 4 of the Order in Council of 7th September, 1838, which was expressly intended to meet such a case. It is clearly a breach of the obligation to pay wages, existing between the Indian and his master, for the latter to make any deduction on the pretext of insuring himself beforehand against one of the risks which fall on him as master. There is in the system this further bad effect, that the master is thereby enabled to estimate in his own case the amount of injury suffered.
The money retained for the pump stands in the same position. The master is bound to supply his labourers with water, and if the supply is defective the expense of increasing it should fall on him exclusively. In this case the hardship and injustice of the deduction was cepecially apparent from the fact that, although the pump was found unworkable, and removed within a few days of its erection,-no restitution was made to the labourers of any part of the money taken from them.
In connection with these two counts I may notice that the inquiry showed clearly that the books of the estate were not kept with strict accuracy. Neither of those deductions were entered in the wages' books. On the contrary, the money was in both cases marked as paid to the men, and a docket to that effect signed by all the head employés of the estate. From the experience gained in connection with this case, I am of opinion that the smallest inconsistency with truth in the mode in which estate books are kept should be visited upon the master in a severe manner. The books are too often the only evidence which can be obtained in questions between master and servant, and their fidelity should be most anxiously guarded. The books of Mount Choisy estate, at the close of every month, bear a docket to the effect that the subscribers have seen the men receive the sums of wages set opposite their respective names. This docket is signed by all the overseers and upper men on the estate. To the statements thus attested of course great authority is given by the magistrate in any discussion involving the question of payment or non-payment. Yet one of the head overseers deponed, "I never noticed whether the amount paid to the men corresponded with the amount marked in the labourers' wages-book. Mr. Poulin makes up the wages-book
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