EMPEROR Vs. KONDIA GOPAL KATKARI

JUDGEMENT

(1.) This is an application against an order made by the Resident Magistrate of Bandra under Act XIII of 1859. The contracts in question are between certain Kathodis and the complainant. The contracts relate to the work to be done as charcoal burners from the 1st of September 1918 to the 15th of June 1919. They refer to certain small advances in cash, and the rate of wages is fixed at two annas per bag of charcoal. They also provide that the wages should be set off against the sums advanced and to be advanced to the workmen.

(2.) It has been found by the Magistrate that "a Katkari, if he is a good and hardworking workman, manufactures with the assistance of others and his family about 300 bags of charcoal in a season of ten months. His earning therefore at two annas a bag would come to Rs. 37-8-0." In plain terms the result of this contract according to the finding is that when a workman with his whole family works for ten months, he earns Its. 37-8-0, that is, he earns nearly Rs. 4 per mensem. It is admitted by the complainant in his evidence that the wife and children of the Kathodi work with the Kathodi, that they are not paid separate wages for their work and that their labour is also included in the rate. It is also admitted by him that though he feeds "them, he could charge them for the same and would do so in case the workmen did not return to work for the following season. Taking the terms of the contract as stated in the document with the finding of the Magistrate and the facts admitted by the complainant, I am wholly unable to accept his conclusion that the conditions of the contract are fair and reasonable. It is suggested before us that these workmen get some further remuneration under some other arrangement or contract. But there is no evidence in support of this suggestion. The fairness of the contracts must be determined on the evidence on the record; and it is hardly possible to treat these contracts under the circumstances established to be fair or reasonable. The workmen refused to work though they received the advances; and the question is whether under the circumstances it is established that they had no lawful or reasonable excuse to neglect or refuse to perform the work as contemplated by the Act. Having regard to the terms of the contract it seems to me that it cannot be said that the workman had no lawful or reasonable excuse to refuse to work. The learned Magistrate has referred to some other facts which go to show that the complainant treats his workmen with a certain degree of consideration. But it appears from his evidence that the consideration he shows to the workmen means an addition to the legal dues recoverable from them. No doubt it is claimed that if these persons would return to work for the next season, he would not charge them the dues of the preceding season. But that is a matter of concession on his part and not of any right of the workmen under the contract. I do not think that on such considerations the terms of a contract which may not be otherwise fair can he treated as fair for the purpose of determining whether the workmen had a lawful or reasonable excuse to refuse to work. There is no question on the present proceedings of the civil liability of these workmen for the moneys received or for breach of contract. But all breaches of contract are not within the scope of the Act. I am satisfied on a consideration of the terms of the contract and the other circumstances which are not in dispute that in the present case the omission on the part of the workmen to perform the work did not render them liable to be dealt with under Act XIII of 1859.

(3.) I would therefore make the rule absolute and set aside the order of the Magistrate. Hayward, J.