[1928] EACA 13

## CRIMINAL REVISION.

Before SIR JACOB BARTH, C. J., and SHERIDAN, J.

## LABOUR INSPECTOR

## 11. $\mathbf{LAJ}$ PATRAI.

## Revision Case 96/1928.

The Nutive Registration Ordinance (Cap. 127), section 6endorsement of certificate by employer.

The Employment of Natives Ordinance (Cap. 189)—contract of service.

Held: - That an employee becomes the servant of the person under whose orders he comes.

Further held that the Employment of Natives Ordinance<br>contemplates a personal contract between the employer and<br>employee and does not provide for or sanction an employer hiring<br>out his employees to a third party.

Malik for convict.

Davies for Crown.

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SIR JACOB BARTH, C. J.-In this case the record has been sent for by this Court. The accused has been convicted of an offence of a breach of section 6 of the Employment of Natives Ordinance.

The facts as they appear from the record are that the accused agreed to hire from one Alam Khan labourers for Sh. $1/50$ each per diem, such sum to be paid to Alam Khan, who had signed on the natives.

The defence was that the natives were not employed for a longer period than twenty-four hours. This defence appears to us to be open to objection on the ground that the daily rate was not paid to the natives but to Alam Khan. There was in fact no contract of hiring between the natives and the accused. Accepting the facts set out in the Magistrate's Judgment as correct it seems that the native was employed by Alam Khan to work on Railway construction. Alam Khan had no work. on Railway construction but apparently was ready to hire out this native, and presumably others, to those that had. In my opinion the Employment of Natives Ordinance contemplates a personal contract between the employer and employee and does not provide for or sanction an employer hiring out his employees to a third party. An employee, however, becomes the servant of the person under whose orders he comes. The legal effect of the transaction is therefore that the native ceased to be in

the employment of Alam Khan and became the employee of the accused. There is no evidence of a contract for daily employment between these parties, and I assume that the native was in fact employed for a period of more than twenty-four hours.

The conviction in my opinion is correct on the facts.

SHERIDAN, J.-From the facts of the case it is clear that the accused had the native in his employment without having endorsed his certificate as provided by section 6 of the Native Registration Ordinance. It was contended in the lower Court that the engagement had not been for more than twenty-four hours and that consequently there was no obligation to endorse the fact of the engagement. It was not disputed that there was an engagement nor could it have been. It appears to me to be immaterial whether the accused procured the services of the native directly or through the medium of Alam Khan for the fact is the native was engaged by the accused to work for him. I think it may be assumed from the record that the native was in the employ of accused for a longer period than twenty-four hours and that therefore the engagement was for a longer period than twenty-four hours.

For the above reasons I am of opinion that the accused was rightly convicted.