PUBLIC RECORD OFFICE
Reference :-
C.O.882
2 PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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gone through, that the man is marked down 'malade-travail.'" Further on he says that this is only done after a repetition of the alleged offence, and with a view to the man's getting his rations; but, unfortunately, the defendant or his subordinates make -the law, and inflict also the punishment for its infraction.
Neither defendant nor his witnesses explain on what ground a labourer is marked down "malade-travail" for not completing his day's work. Now, it appears to us, that the period of daily work being fixed by law at nine hours, the punishment for a labourer either not working a fair day's labour, or doing it negligently, must be meted out to him by the Stipendiary Magistrate, and not by the master or his overseer.
In fairness to defendant it must be stated, that several of the complainants have heen for many years in his service, and have re-engaged several times. Some have gone back to India, and on their return to the Colony have re-engaged with defendant. All this is in his favour as a master, but may have been occasioned by considera- tions with which we are unacquainted; or it may have been that they, at that time, had no reason to complain of the grievance of " malade-travail;" but all this has no bearing on the question as to whether the practice of deducting money from the labourers' wages for the non-performance of task or day's work be legal or not, there is not a shadow of doubt on our minds as to its illegality. The day's work has no determinate value attached to it; and this, it appears to us, would require to be ascertained before an estimate of the work left undone could even by a pro rata valuation be required to be paid for by the labourer.
The Order in Council of 7th September, 1888, cap. 4, section 7, provides the remedy for any servant neglecting to perform his stipulated work, or for performing it negligently.
By Article 23 of Ordinance 31, of 1867, it is optional with the employer to require his labourer to perform task work, "giving him such tasks as can reasonably be required of him;" and "if any question arise as to the reasonableness of any task, the same shall be decided by the Stipendiary Magistrate;" the defendant, by marking a labourer "malade-travail," and thereafter cutting his wages in consequence, virtually decides the question as to the reasonableness of the task in his own favour, without reference to the Magistrate.
The Indian having worked, has a vested right to his wages, less those deductions allowed by law for absence or sickness. Any other must be imposed by the Magistrate.
For these reasons, we are of opinion, that the defendant be condemned to refund to such of the complainants as have had their wages cut under this head, the several sums set opposite to their respective names in the Return appended, marked A.
In the 8th, now 5th count, that comes under the consideration of the Court. The complainants claim the periods of wages set after their names in the complaint.
In dealing with this charge, we feel the legal difficulty that presents itself in considering the defendant's pay-book as conclusive evidence in itself of the payments of wages made to labourers. We speak of the principle generally, and not as regarde Mr. Poulin in particular. Under the Civil Law of the Colony, the books of a trader are evidenco against him, but are not conclusive in his favour of the statements made therein.
By the Government Notice of 11th November, 1868, it is enacted "that no wages-book shall be admitted in evidence, unless it be kept in English or French." It will be observed that this does not imply that they shall be received as conclusive evidence, or even as prima facie evidence, that is, evidence of a fact, which does not require verification, or to be corroborated.
Now, on what data could a verification be made? The statements of Indians are frequently erroneous, and the general bias of his mind is to claim more than is due to him. On the other hand, we have only the planter's or manager's character for honour and integrity as a guarantee for the correctness of his books. In every day life we readily admit that this would be sufficient for us, but in a legal point of view it is not. It is but fair to defendant to say, that his books seem to be carefully and correctly kept, and their general correctness is certified by the Protector of Immigrants, who verified the calculations of the deductions made from the Indians' pay, and found them
to be correct.
We also have gone over them, and can also say so.
The opinion emitted by the Protector is, that he looks upon a pay-book as primá facie evidence of the statements made in it, and unless, he says, I have reason to believe that the entries are false, I should look upon it as conclusive evidence of the payments mentioned; and I have no reason to doubt the accuracy of the entries made in Mr. Poulin's pay-book."
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The opinion of the Protector thus expressed, relieves us of considerable embarrADS- ment; and this, taken together with the fact, that of 866 Indians employed on defendant's estate, only 64 have complained of non-payment of wages, warrants our believing it to be correct. One man, Etwaree, in fact, states that his wages for this year have been all paid to him, while defendant's books show that a sum of 2 dol. 60 o. is due to him for the month of April last.
On examining defendant's pay-book, we find that, on the 2nd May last, when the wages for March were paid, several of the complainants did not then attend to receive their pay; and that on the 9th May, when the wages for April were paid, the com. plainants had then gone to lodge their complaint with the Magistrate, and did not apply to defendant for their pay.
For the above reasons we accept of defendant's pay-book sa the basis on which to determine the different sums due to complainants.
We, therefore, direct the defendant to pay to the several complainants the sums set forth opposite to their respective names, in the nominal list marked A, hareunto annexed, and decree accordingly.
One of the complainants, named Bhodra, died pending the investigation; and a boy, of tender years, named Caderbaccus, not having his parents' consent to institute proceedings, was struck off the numbers of those who complain.
We have to express our regret that the complainants, as well as the Court, should have for some time been deprived of the assistance of the learned Substitute Procureur and Advocate-General, whose services were required elsewhere.
The Court directs that the cost of the proceedings shall be borne by the defendant.
Pamplemousses, this 29th day of November, 1871.
(Signed)
J. A. ROBERTSON, District Magistrate, Chairman. OSCAR D'Z. DE CHARMOY. E. 8. MESSITER.
Annexure (A) to Appendix No. 4.
Dola.
o.
20 80
181 86
Amount deducted for Made Travail Amount of wages due for April 1871
Amount deducted for tools, 15 men at 3 each
(Signed)
APPENDIX No. 3.
11 36
168 41
J. A. ROBERTSON, Chairman, OSCAR D'Z. DR CHARMOY. B. 8. MESSITER.
Reasons of Dissent by Mr. J. A. Robertson.
In the Judgment drawn up by me in the case of the Indians of Mont Choisy estate, against their employer M. H. Poulin, the two Magistrates associated with me in the Petty Sessions differed from me as to the punishment to be awarded to the defendant on the first count, on the ground that as the complainants were mostly employed at task work on the estate, the grievance could not have been of so serious a nature as represented by them, and that a fine of 107. would meet the justion of the
caso.
My reasons for dissenting from this decision were, lat, that it was cleanly established the law had been violated by defendant, in requiring the complainants to work for him beyond the hours fixed by Statute, but also the sypallagmatique contract he had entered into with the Indians. They had engaged to perform certain work and labour which the Statute fixed at nine hours per diem; and he, on the other hand, had bound himself to give them certain wages, rations, &o. The planter, when he obâmina the Indians' consent to engage with him, is well informed of all the conditima impared by law; and any labour exacted beyond the hours fixed, is a virtual violation of both the Statute and contract. For reasons of so serious a nature, I was of opinion that the contraota of service of complainants with defendant should be cancelled.
In considering a complaint of this nature, the relative position of master and
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