Birsa Sardar vs Emperor

Macpherson, J.—This rule has been issued to consider the conviction of Birsa Uraon under R. 33 of the Rules framed by the Local Government under the powers conferred by S. 21, Tea Districts Emigrant Labour Act, 1932, rend with S. 2, General Clauses Act. 1897, under which if a person engaged in the recruitment of labourers contravenes the provisions of R. 30 he is punishable with fine which may extend to one hundred rupees, R. 30 runs as follows;

Every person engaged in the recruitment of labourers shall give to the local forwarding agent, to whom he is attached, a true account of every labourer recruited by him and shall correct any misdescription of any such labourer, or of any member of the family of such labourer, which is given by such labourer and which such person knows to be incorrect.

The appellate Court has held tha it was at least incumbent upon the petitioner to put himself in a position by reasonable inquiry to give the true account required by the rule. The petitioner whose home is at village Rani Khatanga a few miles west of Ranchi, had been at work in that district, a controlled emigration area, for four years as a garden sardar of the Majhligarh Tea Estate, Assam receiving a commission of ten rupees per (adult) coolie recruited by him. He has been convicted under R. 30 in connexion with his recruitment as a tea-garden labourer of Ghasni, wife of Somra Uraon who was forwarded to Assam together with and as wife of Sukhi Uraon. Or, 19th March 1934, he produced before the "local forwarding agent" licensed for the Ranchi district whose depot is at Kadru, about two miles west of Ranchi, four Unions of village Chitrakota; which, as the map shows, has only one village intervening between it and his own village of Rani Khatanga. The adults were Sukhi, a male, and Ghasni, a female, both about 22 years of age, and residents of Chitra kota. Ghasni is daughter of Champa Uraon deceased and wife of Somru Uraon of Chitrakota who was then at work in Calcutta. The other two were the children, aged respectively three years and one year, of Somra and Ghasni, so that Somra's absence in Calcutta was only seasonal and Ghasni was living with her husband within the meaning of the Rules and she was eloping with Sukhi. The "local forwarding" agent despatched them on the 23rd according to his deposition, but on the 20th according to the waybill to the Majhligarh Tea Estate showing the name of the appellant under "how recruited" and showing also Sukhi and Ghasni as husband and wife.

When the petitioner was placed on his trial, he stated that he did not correct the statement as to the relationship of Sukhi and Ghasni as he was unware of its incorrectness having made no inquiry, and that in reliance upon the statement of Chasm's father, he took them to the local forwarding agent for enlistment and "chalaned" them. Asked whether for the purpose of recruiting coolies he went to their village to make inquiries, he replied that it was not necessary as it can be done at the depot. The local forwarding agent deposed that Ghasni was produced by the petitioner, that Sukhi stated that she was his wife, that petitioner stated that he knew nothing about them and that there being no suspicion, he chalaned them on the 23rd. Incidentally this statement of date may not be unconnected with the liability of the local forwarding agent himself under R. 32 for contravention of R. 19 if his evidence is true and of R. 20 if he actually forwarded Ghasni on the 20th. There is a suggestion in this regard in the judgment of the Magistrate. It was established that the petitioner's allegation that he had probable information from the father of Ghasni was quite false, since Champa Uraon had died many years ago indeed even before Ghasni became the wife of Somra.

In cases under this Act a Magistrate is inclined to proceed on the minimum of witnesses with the result that a superior Court may find it necessary to remand for further evidence. My own experience, when occupying the same position as the Magistrate who convicted was that that was a serious mistake productive in the long-run of general inconvenience. In the present instance, apart from a plea of guilty, the Magistrate ought not to have refrained from securing the evidence of Ghasni and Sukhi almost at any cost, including bringing them back as witnesses from Assam, since it is upon such reluctance that perpetrators of irregularities and offences flourish. On the evidence on record he found that the petitioner had failed in his duty and had no justification for recruiting the emigrants without inquiry such as would have enabled him to give the true account which the Rule requires. Indeed, in the circumstances, no case of hardship could arise as Chitrakota is within very easy distance both of his own village and of the Kadru depot. The Magistrate held that under R. 30 the moment a recruiter undertook to assist a person to emigrate, the burden devolved upon him to correct any misdescription of such labourer when he either knew or had reasonable means of acquiring knowledge and that in fact the petitioner was privy to the scheme of having Ghasni, a married woman, chalaned without the knowledge or consent of her husband. He accordingly convicted him under R. 30 and sentenced him to a line of Rs. 100.

In appeal the Judicial Commissioner assumed without deciding that the statement by petitioner regarding Champa Uraon was merely a subsequent invention and that his statement to the forwarding agent was the real truth and held that even on such assumption there was not a complete answer to the charge for the simple reason that when he introduced Ghasni to the local forwarding agent, it became incumbent upon him to know something about her and to acquaint the local forwarding agent with the true facts of the case as far as possible, and his failure in this respect constituted a violation of R. 30 the test being whether he had made inquiries which were reasonable in the circumstances.

In revision Mr. K.K. Banerji first urges that the petitioner did hot recruit Ghasni at all. The plea however involves the erroneous assumption that what the Judicial Commissioner conceded for the sake of argument was a decision on the facts, as it clearly was not. Actually the proximity of the two villages, his false account of his source of knowledge and the fact that he was so conveniently present at the depot, with other circumstances combine to constitute ample basis for the Magistrate's finding of his privity to "the plan of getting Ghasni a married woman chalaned without the knowledge or consent of her husband"; which finding was not displaced in appeal. In fact there was previous concert in that regard between appellant and the eloping couple before arrival at the depot so as to constitute the knowledge required under S. 32 (2) of which offence the petitioner was also manifestly guilty. He knowingly assisted Ghasni, a married woman living with her husband to emigrate as a labourer to a tea garden without the consent of her husband. The only possible exception would be that he did not actually arrange with her to proceed to Assam with assistance, but that his intervention was a device, he being merely put up by the local forwarding agent so that the woman should emigrate to his particular garden, and that has not been suggested. It is a further complete answer to this first plea that the statement of the petitioner himself is that he chalaned her and took her to the Sahib for recruitment and she was despatched to his garden with his name as recruiter, and he took or expected the commission. Clearly, he comes not only within the description in S. 18 (1), but also within the description of recruiter in respect of Ghasni as also within the provision of S. 32.

Next it is urged (again on the assumption that the party of four came to the depot without previous concert) in reliance on S. 18 (1) that as the arrangement to proceed to Assam with assistance was made by the petitioner at the depot, it was unnecessary for him to make inquiry. But that provision relates only to taking the recruit to the depot; it has no bearing on any inquiry which may be necessary before the recruiter makes the arrangement with the recruit, which of course he makes subject to any provisions to which he may be liable. The advocate urges that in the circumstances inquiry by the recruiter was redundant. The argument again involves the erroneous assumption already mentioned as to what the circumstances were. Actually, further inquiry was redundant because in point of fact the petitioner knew the facts and was able to give a true account and to correct misdescription. But even if he was not in a position to give a true account of Ghasni before he began to assist her to emigrate; it was, as the deplorable result shows, far from redundant to ascertain by the exceptionally easy inquiry at Chitrakota that she was the wife of Sukhi and not eloping with Sukhi from the home of her husband. It is well-known that the emigrants whom garden sardars recruit are on the average few and are mainly secured from the neighbourhood of their own homes, and if the petitioner had not known the facts, his inability to give a true account could only be due to purposely avoiding making the easy inquiry which would have enabled him to give it.

The main contention however is that Rr. 30 and 33 are ultra vires. Prima facie, that Act would, without them, be in Chota Nagpur entirely useless in the most flagrant cases, and would have to be amended to put their legality beyond question, since the besetting fault of recruiters in that province has always been that they do not give a true account of the recruits, but abet elopement of married women to Assam, misdescribing them or conniving at misdescription. The necessity for remedying that notorious mischief would be some indication of the provisions which the legislature might be expected to enact. But, of course, the real point is what the legislature has enacted. The rules are made by the Local Government in exercise of the powers conferred by S. 21 (1) of the Act, which in sub-Cl. (g) empowers them to make rules providing for any matter (other then those enumerated in (a) to (f) proceeding) which in their opinion, may be required to give effect to the provisions of Chap. 3 in which S. 21 is included. It is contended on behalf of the petitioner that R. 30 does not come within this rule-making power as it does not give effect to the provisions of Chap. 3 or any of them. The contention fails to commend itself. In the first place the criterion is wrongly stated. It is not that the rule must give such effect. Under S. 21 (1) (g) it is the opinion of the Local Government of what is a matter required to give effect to the provisions of Chap. 3 that is the sole criterion. Such opinion will naturally be based upon local conditions such as have been above alluded to. It is certainly not possible to predicate that the Local Government could not be of opinion that a true account of a recruit from the recruiter to the local forwarding agent is not a matter required to give effect to the provisions of Chap. 3. That is sufficient to dispose of the point. But in addition Mr. Akbari's reference to S. 21 (1) (e) and, he might perhaps have added S. 21 (1) (b) cannot be said to lack force.

It is certainly arguable that in fact the local forwarding agent cannot know whether a woman is accompanied by her husband unless the recruiter who has brought her to the depot after arranging with her that she shall proceed to Assam with assistance, gives a true account of her, and particularly as to the identity of her real husband with the person whom he produces with her as such at the depot, and therefore cannot know whether he is required to detain her for three days, or to put into operation the provisions relating to investigation into her circumstances. A rule requiring a recruiter to give a true account of his adult female recruit would thus be one required to give effect to the provisions of Chap. 3. But whether it actually does so or not is not the point; it is sufficient, as has been said, if in the opinion of the Local Government such provision for such matter is required. The rule-making power is expressed very widely and under it R. 30 appears to me to be validly made, certainly so far as a woman unaccompanied by her husband is concerned. It makes no difference that the local, forwarding agent also incurs liabilities; under Rr. 19 and 20 read with R. 32 in respect of "women unaccompanied by their husbands." Indeed, as he must be largely dependent upon the recruiter for his information as to the recruit, the Local Government may very well be of opinion that in order that the provisions for investigation regarding such women and for temporary detention before they are ''forwarded, may he given effect to, responsibility for furnishing a correct account of them should in the first place be fixed upon the recruiter, the local forwarding agent verifying it by further careful inquiries. The provisions actually reduce the peril to which he is subject since, it is to be observed, liability under the last mentioned rules has nothing to do with the state of the local forwarding agent's knowledge; it is immaterial, and very properly, that the male accompanying the married woman (hitherto living with her husband), cither actually or constructively, as when she is at his house is erroneously believed by him to be her husband "mistakes" on the point arc not permissible.

In my judgment R. 30 is validly made so far as the case of Ghasni is concerned and the conviction is right. Had a different view been arrived at, this Court would have altered the conviction to one under S. 32 maintaining the sentence. The application is accordingly without merit and the rule is discharged.