083-NLR-NLR-V-53-EASTERN-BUS-CO.-Appellant-and-INSPECTOR-OF-LABOUR-BATTICALOA-Respondent.pdf
372
BASNAYAKE J.—Eastern Bus Co. v. Inspector of Labour
1051Present : Basnayake J.
EASTERN BUS CO., Appellant, and INSPECTOR OF LABOUR,
BATTICALOA, Respondent
S. C. 675—M. C. Batticaloa, 10,435
Criminal Procedure Code—Summons on Company—How served—Proper officer
Section 45 (3)—" Or other like officer
By Section 45 (3) of the Criminal Procedure Code: “ In the case of a companyor association of persons whether incorporated or not the summons may beserved on the Secretary or other like officer of the same
Held, tKat service of summons on the Managing Director of a company wasnot a sufficient compliance with the requirements of the Section.
.^^.PPEAL from a judgment of the Magistrate’s Court, Batticaloa.
S. Barr Kumarakulasinghe, for the appellant.
A. Mahendrarajah Crown Counsel, for the Attorney-General.
September 28, 1951. Basnayake J.—
On 4th July, 1950, Dharmalingam Balasingam, Inspector of Labour,Batticaloa, instituted, with the sanction nf the Controller of Labour,legal proceedings against the Eastern Bus Company, Ltd. in respectof offences committed under he Wages Boards Ordinance, No. 27 of1941.
1 (1921) 22 N. L. R. 289 and see Letchimanpillai t>. Kandia (1928) 30 N. L. R. at p. 281.
373
BASNAYAKE J.—Eastern Bus Co. v. Inspector of Labour
On a special motion by the prosecution summons was served on theManaging Director of the Company who appeared in obedience to itand pleaded not guilty.
Later, objection was taken to the proceedings on the ground that asthe prosecution of the Managing Director did not have the sanction ofthe Controller of Labour as required by section 54 of the Wages BoardsOrdinance, the Court had no jurisdiction to try the Managing Director.
The learned Magistrate overruled the objection holding that thesummons had been correotly served on the Managing Director whoin his opinion came within the words “ other like officer ” in section45 (8) of the Criminal Procedure Code. Thereafter the charge wasamended, despite objection by the appellant, to read as follows:
*' In your capacity as Managing Director of the Eastern Bus Company,Batticaloa, who are accused in this case, you have been summonedbefore this Court under the provisions of section 45 (3) of the CriminalProcedure Code as the lawful representative of the accused companyto answer to the following charges against the company, viz., thatyou being an employer in a trade, to wit, the Engineering Trade,for which trade a Wages Board has been established by order publishedin Government Gazette No. 9,272 dated the 19th day of May, 1944, did onor about the 1st day of June, 1950, in the premises of the Eastern BusCompany Ltd., Batticaloa, within the jurisdiction of this Court inbreach of section 44 (1) (6) ■ of the Wages Boards Ordinance, No. 27of 1941, dismiss from employment one E. Hendrick, a worker employedby the said employer in the said trade, by reason merely of the factthat the said worker had given information with regard to the mattersunder the said Wages Boards Ordinance, No. 27 of 1941, to SelliahVelauthampillai, Assistant Commissioner of Labour, Batticaloa,an officer appointed under section 47 of the said Wages Boards Ordi-nance and that y<5u have thereby committed an offence punishableunder section 44 of the Wages Boards Ordinance, No. 27 of 1941,or in the alternative that you did at the same time and place in breachof section 44 (1) (d) of the Wages Boards Ordinance, No. 27 of 1941,dismiss from employment E. Hendrick, a worker employed by the saidemployer in the said trade, by reason merely of the fact that the saidemployee is entitled to benefits under the decision of the said WagesBoards for the engineering trade and that you have thereby committedan offence punishable under section 44 of the said Wages BoardsOrdinance No. 27 of '1941. ”
The amended charge was read to the appellant and the trialproceeded, the learned Magistrate holding that the accused was still theEastern Bus Company.
An accused person cannot under our law be convicted of an offenceunless he has had an opportunity of being heard. – Our Criminal ProcedureCode contains provisions designed to achieve that end. The firstquestion that arises for consideration is whether the Eastern Bus Companyhas been duly summoned and was afforded, in the manner prescribedby law, an opportunity of being heard. Clearly the summons has not
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Ramson c. Ahamath
been .served on the Secretary. Where summons is not served on the“ Secretary " section 45 (3) requires that it should be served on an“ other like officer The word “ like ” to my mind indicates that theother officers contemplated by the section are officers ejusdem generisof Secretary. The Managing Director of a company is not of the- samegenus as its Secretary, who is usually a paid servant of the company.In view of the qualification imposed by the word “ like ”, the personscontemplated by the words “ other like officer ” cannot therefore bepersons belonging to a category different to that of the Secretary. Theymust be persons of a like status, such for instance as the Manager andAssistant Secretary.
As to the meaning of the word ‘‘ officer ” in Company Law, there isno hard and fast rule. Its meaning would depend on the context inwhich it occurs, but generally speaking the Managing Director of acompany or even its Directors are not understood to be its officers inthe sense in which its Secretary is its officer.
In the English Companies Act of 1948 the expression is defined soas to expressly include a Director, Manager, or Secretary. Our CompaniesOrdinance contains no such definition.
For the above reasons I am of opinion that summons has not beenduly served on the Eastern Bus Company Ltd., and that the convictionis bad as the trial has taken place in its absence. The presence of theManaging Director in court cannot regularise the failure to serve summonson the Company and secure its attendance in the way prescribed by the .Criminal Procedure Code.
The appeal is allowed and the conviction and sentence of the appellantare quashed.
Appeal allowed.