095-NLR-NLR-V-60-E.-P.-SENEVIRATNE-Appellant-and-I.-J.-DEEN-Inspector-of-Labour-Respondent.pdf
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DE SILVA, J.—Seneviratne v. Deen.
Present: K. D. de Silva, J.
E. P. SENEVIRATNE, Appellant, and I. J. DEEN (Inspector of
Labour), Respondent
8. G. 251—M. C. Badulla-Haldumulla, 21,303
Charge—Error in reference to penal section—Curability—Wages Boards Ordinance,No. 27 of 1941, as amended by Ordinances Nos. 4 of 1943, 22 of 1945 and ActNo. 5 of 1953, ss. 43A, 52 (g)—Criminal Procedure Code, ss. 171, 347 (6) (2).
Failure to state in a charge the correct penal section is something more thanan error referred to in section 171 of the Criminal Procedure Code.
Where a person has been charged under section 52, instead of section 43,of the Wages Boards Ordinance, a conviction under section 43 cannot te sup-ported by resorting to the provisions of either section 171 or section 347 (b) (2>of the Criminal Procedure Code.
A
-LJ-PPEAL from a judgment of the Magistrate’s Court. Badulla-Haldumulla.
M. M. Kumarakulasingham, for the accused-appellant.
P. Weerasiwghe, Crown Counsel, for the Attorney-General.
May 31, 1957. de Silva, J.—
In this case, the appellant , the proprietor of Mentenne Estate, Haputale,and his Superintendent, the second accused, were charged on two countsunder Section 52 (g) of the Wages Boards Ordinance No. 27 of 1941, asamended by Ordinances Nos. 4 of 1943, 19 of 1945,22 of 1945 and the
DE SILVA, J.—Semviratne v. Deen
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Wages Boards (Amendment) Act No. 5 of 1953, in that they failed toallow to workers V. Palaniyandy and P. Annavi workers’ holidays withremuneration, in terms of certain Gazette notifications referred to in thecharges.
The learned Magistrate found both accused guilty and imposed a fineof Rs. 200 on the appellant and Rs. 25 on the second accused. Prom
this conviction, the first accused has taken this appeal.
Mr. Kumarakulasingham, his counsel, contended that the prosecutionhad failed to establish that the holiday cards P6B and P6C referred toy. Palaniyandy and P. Annavi. I am not prepared to agree with thatsubmission. There is ample evidence to show that the cards in questionreferred to the two individuals mentioned in the charges 1 and 2. Mr.Kumarakulasingham also submitted that the appellant had been con-victed under the wrong section. After the case for the defence wasconcluded, the Proctor who appeared for the 1st accused submitted tothe Magistrate that the appropriate penal section is Section 43 and not52. The learned Magistrate, however, appears to have disagreed withthat submission and convicted both accused under Section 52(g).However, in the reasons given by him in support of the conviction, theMagistrate has agreed that the accused were wrongly charged under.Section 52 (g), but he was of the opinion that the accused were guilty ofan offence under Section 43 (A). He, however, relied on Section 171 ofthe Criminal Procedure Code and held that as the accused were notmisled by the error, the conviction should be allowed to stand. In myview, Section 171 is not applicable to the circumstances of this case.Failure to give the correct penal section is something more than an errorreferred to in that section.
Learned Crown Counsel concedes that the appropriate section underwhich the accused should have been charged is Section 43. Seotion 52 (g)refers to a breach of any provision of the Ordinance or any regulation.In this case, the accused were not charged with the commission of abreach of any provision of the Ordinance or of any regulation framedunder it. The offence that the accused had committed was a failure tocomply with the provisions of a decision of the Wages Board. Thepenalties provided by Section 52 are higher than those contemplated inSection 43. The learned Crown Counsel asked me to act under Section347 (6) (2) of the Criminal Procedure Code and alter the verdict main-taining the sentence. He relies on the case of Meera Natchiya v. Mankar b
In the circumstances of the case, I am not prepared to proceed underSection 347 (6) (2). I would, therefore, set aside the conviction of theappellant and acquit him.
Acting in revision, I set aside the conviction of the 2nd accused alsoAnd direct that the fine imposed on him, if already paid, be refunded toAim.
Appeal allowed.
1 asm 11 X. L. R. 319.