1. I agree with Phillips, J., that the contract was one, not merely to supply labour, but to get work performed by workmen or labourers, and, to that extent comes within the scope of Act 13 of 1859. But it is further necessary, vide Section (1) that any person against whom the Act is sought to be enforced should be himself 'an artificer, workman or labourer': and this is a point, on which not only is there no finding by the Magistrate but which has apparently escaped his attention altogether.
2. This status of the accused person is an integral part of the case which the complainant has to establish; and if there is no evidence, the Magistrate's order cannot stand, no matter whether the accused did, or did not raise the point before him.
3. With all respect, I cannot agree with my learned brother Phillips, J. in holding (as I think he does) that the evidence on record is sufficient to establish that the present petitioner (accused) is a workman within the meaning of the Act. The secondary definition of 'workman' quoted by him from the Century Dictionary 'one who works in any department of physical or mental labour' cannot in my opinion be applied here. It is broad enough to include any one but an absolute idler, and would cover many classes who Have been specifically held not to come under the Act: e.g., horsekeepers, cooks, temple servants and cartmen vide Criminal Revision Cases Nos. 159 of 1883, 2 of 1890, 412 of 1902 and 1427 of 1877 all reported in I. Weir, Crl. R., pages 688-690. In a recent case Miller, J. held that a musician in a band was not a workman. Vide Re Rosario Quadros I.L.R. (1913) Mad. 551. Of course all these are very different from plantation coolies: but the cases are good authority for holding that the word ' workman' cannot be understood in this sense. The position of the word 'workman' sandwiched in between 'artificer' and 'labourer' is most significant : and I am inclined to agree with petitioner's vakil that the words were purposely used in the order in which they appear in order to indicate a descending sale from skilled to unskilled labour. A perusal of the preamble of the Act, which was passed primarily in the interests of manufacturers, tradesmen and others in the Presidency Towns goes to strengthen this impression. I think the word 'workman' must be understood as connoting manual labour of some kind, whether skilled or unskilled.
4. Then it is argued that as the coolies and tapping coolies by whom petitioner contracted to get work done were undoubtedly workmen, he also must be regarded as a workman, on the ground that he was employed to supervise them. It is not suggested that he had any other work to do beyond supervision of the most general description. There is a separate provision for 'Kol maistries'--one for every 16, or 25 coolies according to the nature of the work. Even this general supervision by petitioner is no essential part of the contract, There is no provision requiring that he should live on the estate: it is simply provided that if he does, he is to get Rs. 25 a month. His work even as a general supervisor is purely optional; and there is nothing to show that he did any or cared to avail himself of the clause in question. Even apart from this and assuming that his working as a supervisor over the coolies supplied by him was a part of his undertaking, I should find the greatest difficulty in the way of holding that a supervisor over 250 coolies, regarding whose labour he has contracted, is a 'workman' within the meaning of the Act. A man, who does work of an intellectual nature in connection with a contract involving manual labour cannot, I think, simply for that reason, be viewed as a manual labourer : and the word workman must be understood in the same sense wherever it occurs in the Act. That personal (in the sense of manual) labour by the defendant--contractor is essential to the enforcement of the Act seems to me to be recognised in Gilby v. Subbu Pilled I.L.R. (1888) M. 10 and Caluram v. Chengappa I.L.R. (1883) M. 315 as well as in a recent case to which I was a party (Mamubeari in re (1914) 27 M.L.J. 392, while in another reported case Ramasami v. Kandasami I.L.R. (1885) M. 379 it is made clear that the defaulting contractor was a person of the cooly class who bound himself to render personal labour, if the advance was not worked out by the coolies whom he contracted to supply.
5. I find two early cases, 3 Mad. H. C. 25 and Rowson v. Hanama Maistri I.L.R. (1877) M. 280 in which the enforcement of the Act was certainly allowed without, so far as appears any consideration of this point--merely on the ground that the contract was one to get work performed. But it seems to me more likely that the point was one to which the attention of the learned Judges was not directed, rather than one which they considered immaterial. There is nothing in these judgments to suggest that they adopted the reasoning referred to above. All the later cases tend in the contrary direction: and they seem to be in accord with the wording of the Act.
6. After careful consideration I can only concur in the conclusion of Sadasiva Aiyar, J. and direct that the order be set aside.