1965Present: T. S. Fernando, J.M. SINNATHAMBY, Appellant, and M. D. S. RATNAWEERA
Labour Officer), Respondent
S.C. 383 of 1965—M. G. Colombo, 36238/A
Employees' Provident Fund Act, No. 15 of 1958—Sections 8 and 15—Regulations madeunder s. 46, Regulations 1, 3, 4, 60 (3)—Prosecution for failure of employer topay contributions due from employees—“ Covered employment ”—Burden ofproof—Evidence Ordinance, 8. 105.
Regulation 3 of the regulations of October 29, 1958, made by the Minister undersecton 46 of the Employees’ Provident Fund Act is as follows :—
“ Any employment on any work which is usually performed by the day orby the job or by the journey shall not be a covered employment. ”
Held, that, when an employer is charged with having failed, in contravention ofsection 15 of the Employees’ Provident Fund Act, to pay a contribution on behalfof an employee, and when the sole question is whether or not the employmentof the employee is a covered employment within the meaning of section 8 of theAct, read with regulation 3, section 105 of the Evidence Ordinance imposes theburden of proof on the employer to establish that the employment of theemployee is on some work which is excepted by regulation 3.
Held further, that, by regulation 60 (3) of the regulations of October 29, 1958,persons in covered employments may include persons paid according to a piecerate.
ApPEAL from a judgment of the Magistrate’s Court, Colombo.
H. V. Perera, Q.C., with M. Radhakrishnan, for the accused-appellant.
R.Abeysuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
July 27, 1965. T. S. Fernando, J.—
The appellant has been convicted by the Colombo Magistrate of threecontraventions of section 15 of the Employees’ Provident Fund Act,No. 15 of 1958, in that he, being the employer of the persons named inthe three charges, failed to pay for the month of September 1960 thecontributions of the employees so named. Upon conviction he has beensentenced to pay a fine of Rs. 25, in default 2 months’ simple imprison-ment in respect of each charge, and has further been ordered in terms ofsection 38 of the Act to pay a sum of Re. 1,326 57.
The sole question arising on this appeal is whether the persons namedin the charges are persons to whom the Act applies, i.e., whether they arepersons in any employment which has by regulation been declared to bea covered employment—see section 8. By regulation 1 of the regulations
of October 29, 1958, made by the Minister under section 46 of the Act—(see Government Gazette No. 11,573 of October 31, 1958)—every employ-ment specified in the First Schedule to thoee regulations has been declaredto be a covered employment, save as provided in regulations 3 and 4.The employments specified in the First Schedule embrace “ everyemployment other than employment under the Government of Ceylon,under any local authority or under the Local Government ServiceCommission Therefore, every employment other than those underthese excluded authorities is a covered employment unless such employ-ment can be shown to be excepted by regulations 3 and 4. Of these twolast-mentioned regulations it becomes necessary on this appeal to noticeonly regulation 3 which is in the following terms :—“ Any employmenton any jpork which is usually performed by the day or by the job or bythe journey shall not be a covered employment
Is there here a burden on the defence to establish that the employmentis on some work which is excepted by regulation 3 ? On this incidentalquestion of the burden of proof the discharging of which will take theemployment outside the category of covered employments, I wouldfollow the decision of the Divisional Bench in The Mudaliyar, PitigalKorale North v. Kiri Banda x. The words “ save as hereinafter providedin regulations 3 and 4 ” are in the nature of an exception within themeaning of section 105 of the Evidence Ordinance. I do not considerthat this view in regard to the burden of proof imposes any hardshipupon tne employer as he is the person best situated to adduce beforethe Court evidence as to the nature of the work performed by the personsalleged to be his employees. The prosecution in many cases of this kindwill be at a disadvantage in satisfying the Court of the real nature of theparticular work performed. The evidence in the case from which thepresent appeal has arisen itself illustrates the reluctance of employeesfor whose benefit the Act has been enacted to take advantage of its provi-sions or to co-operate in its working. This reluctance, I trust, will beovercome in time by means of suitable propaganda among and educationof the employees themselves in regard to the benefits to be gained by anobservance of the provisions of the Act on the part of all concerned.
Has then the defence discharged on a balance of the evidence the burdenthat lay on it to satisfy the Court that the work performed by the threepersons named in the charges fell within the description given inregulation 3 ?
Neither the prosecution nor the defence called any of the workers.A witness called for the defence, the Secretary of the Organisation ofCigar Manufacturers, gave some indication in the course of his evidencethat it is difficult to get the workers to make their own contributions tothe Provident Fund and that they declare that they do not want thebenefits of the Fund. The appellant himself, it should be mentioned,complied with section 15 of the Act for the period November 1959 to
1 <1909) 12 N. L. B. 304.
August 1960. The prosecution, to which the present appeal is the sequel,was concerned with contraventions of section 15 on the part of theappellant in respect of the month of September 1960.
On the evidence led before him, the learned Magistrate was invitedto hold that the persons named in the charges framed against theappellant were not working in a covered employment. It was arguedbefore him, as indeed also before me, that they were employed on workusually performed by the job. It would appear that the appellantmaintains an establishment for he manufacture of tobacco products,mainly cigars, and most of the employees are engaged for the work ofrolling the cigars. In relevant documents they have been described ascigar rollers. In the month immediately preceding that with which weare concerned on this appeal, viz., August 1960, he had on his roll some107 persons of whom all but 6 were cigar rollers. The Magistrate hasaccepted the evidence that these cigar rollers have no regular hoursof work and that they are free to come and go as they like. The rollingof cigars takes place in the employer’s establishment where sheds havebeen erected for the purpose. The employees are not free to take out ofthe employer’s premises the tobacco given over to them for rolling intocigars. The rolled cigars and any unused tobacco have to be given overto the employer before the employee can leave. Payment is regulatedby output, i.e. according to the number of cigars rolled. The currentminimum rate of payment is said to be Rs. 10 for every 1,000 cigarsrolled. Many of the persons employed in the work of rolling cigarsappear to be villagers who occupy themselves generally in the cultivationof their lands and turn up in their spare time to supplement their incomeby engaging in cigar rolling at one of the many cigar manufactoriesin the area we are concerned with here. While there is no legal obligationon these workers to turn up for work at any particular time or turn up atall, the return furnished in respect of August 1960 is ample testimonythat the workers are generally constant in their attendance for work.The sums earned by them at the rate specified above for the month ofAugust 1960 are not inconsiderable, and vary from Rs 41 60 to Rs. 245 60.Each of 38 of the 101 cigar rollers earned a sum in excess of Rs. 100 duringthat month.
The circumstance that persons engaged for the purpose of rolling cigarsare paid at a piece rate does not assist in determining whether they areemployed in work th t is usually performed by the job. Indeed, regul .tion60(3) of the regulations of October 29, 1958 declares that earnings of anemployee (in a covered employment) shall include remu eration paid tohim at piece rates. The law therefore recognises that persons in coveredemployments may include persons paid according to a piece rate. Mr.Perera, for the appellant, suggested that, in the case of these cigar rollers,the true position is that there is not a continuous employment but aseries of employments or engagements by the employer. Crown Counselsubmitted that these men are not engaged in isolated jobs of work eachof which is complete at that hour of the day on w hich he chooses to leavethe factory and go home, but in work of a continuous nature, viz., theturning out of cigars. The learned Magistrate himself took the viewthat regulation 3 was intended to exempt work of a casual nature. Asexamples he has mentioned the case of the work of an odd-job gardeneror a person who undertakes to wash and polish a car. These examplescould be multiplied. In this case he was inclined to think that there wasnothing casual in the nature of the work of cigar rolling itself. Anyelement of casualness was not a characteristic of the work itself, butrather to be attributed to the worker himself. On the question beforehim he has in my opinion reached a correct finding and I see no reasonfor interference with the conviction or sentence.
M. SINNATHAMBY, Appellant, and M. D. S. RATNAWEERA (Labour Officer), Respondent