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RODGERS v. TINDALS.
Master attendant and tindals of boats—Departmental inquiry—OrdinanceNo. 0 of 1865, ss. 23 and 40—Prosecution of offences against Ordinance.A master attendant acting under section 23 of Ordinance No. 6 of1865 can only withdraw or suspend a license, but he is not empoweredby the Ordinance to take evidence on oath in any departmental inquiry,or to impose a fine as the result of such inquiry.
All offences against the Ordinance being made cognizable by the PoliceCourts by section 40, they should be dealt with in a regular criminalproceeding before such courts.
rpHIS was an inquiry which th j Acting Master Attendantprofessed to hold departmental^ under section 23 ofOrdinance No. 6 of 1865. It was due to a report made to him bythe Harbour Police that the tindals of certain cargo lighters had gonealongside the as. Rohilla befdre she was moored in her berth. Onthe day fixed for the inquiry the tindals were present, the reportof the police was read to them, and they having denied the chargethe Acting Master Attendant examined on oath some witnessesin support of the charge and made the following order:—“ I find“ all the accused guilty of going alongside the ss. Rohilla before“ she was moored and impeding the pilot’s movements in mooring“ the vessel. For this misconduct the accused are fined Rs. 5“ each, or in default their licenses to be suspended for seven days.—“ F. 0. Carter, Master Attendant.”
The tindals appealed on the footing that the order complainedof was made by Mr. Carter in his capacity of Joint Police Magis-trate of Colombo.
Domhorst and Bawa, for appellants.
17th June, 1895. Browne, A.J.—
I think that the judgment of the Joint Police Court of Colombo,dated the 4th May, 1895, should be set aside, and the proceedingsquashed as irregular.
In forwarding the appeal lodged in these proceedings the Acting 1895.Master Attendant has indicated to this Coart his own doubts Bbowkb.AJ.whether these, what he has styled “ departmental ” proceedings,and professed to hold under section 25 of Ordinance No. 6 of 1865,are regular. It is very clear they are not.
[After setting forth the facts of the case he continued] I do notsee that Ordinance No. 6 of 1865 empowered the Master Attendantto take evidence on oath or to impose a fine. Section 23 empowershim only to withdraw or suspend a license, but his order to anysuch effect requires confirmation by His Excellency the Governor.
It was stated in argument that the misconduct of which com-plaint was made would constitute an offence under Port RuleNo. 37 of 20th December, 1894. If it be so, prosecution to convic-tion and fine is authorized by section 34, and the provisions ofsection 40 would apply.
The Ordinance has clearly indicated that it is in such a regularcriminal proceeding an offender should be charged, tried, andpunished, and that by a Police Magistrate. These proceedingsare an irregular attempt to arrive at tfhis end under the guise of adepartmental inquiry on oath by the Master Attendant, wherebypossibly he might question the right of any person to appeal fromhis decision. In truth, however, it was a prosecution before theJoint Police Court, and in it the accused has not been chargedwith any statutable offence, nor regularly tried nor convicted. Ihold the accused had right to bring the decision before this Courtby appeal as he has done, and I order for these reasons that theproceedings be quashed.
RODGERS v. TINDALS