044-NLR-NLR-V-72-G.-ASIRIWATHAM-Appellant-and-A.-PREMAWARDENA-Labour-Officer-Respondent.pdf
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’ Asirioatham v. Prematvardemi
1988Present :Alles, J.
G. ASTRW'ATHAM. Appellant, and A. PEEM AWARDSNA (Labour
Officor), Rcspondout
S. C. 354168 — M. C. Avferwvlht.. 83248
Shop and Office Employees (Regulation of Employment and Remuneration) Act(Cap. 129), as amended by Acts Eos. CO of 1957, 2S of 1962, 26 of 1966—Sections 43(1)', 43 (2), 51 (-3), GO (1), 6-5—Closing Order—Charge of contraventionthereof by owner of a shop—- Liability of owner for acts of his employees— Modeof proving a Closing Order—Evidence Ordinance, s. 57.
In a prosecution of the registered owner of a shop for having kopt opcu hisshop for the serving of customers in contravention of a Closing Order madeunder tho Shop and Office Employees (Regulation of Employment andRemuneration) Act —
Held, (i) that production of the Closing Order together with copies of thocertified extracts of tho Government Gazette hearing tho legend that they wereprinted by tho Government Printer constituted sufficient- cvidcnco to satisfytho requirments of section Go of tho Act.
(ii) that cvidcnco of servico of a customer hy employees of tho owner, evenin tho absenco of tho owner, was sufficient to couvict tho owner, unless theowner discharged his liability in terms of section GO (I) of tho Act.
ALL.ES, J.—-A.vinca! ha in v. Prcmttv'ardcmt
is.-i
A.PPE AL from a judgment of tho -Vfagistrate’s Court, Avissawolla.
5. O. Crossette-Thambiah, with Ralph de Siloa, for the accusod-appcllant.
V. S. A. Pullenayegum, Senior Crown Counsel, with Priyaniha Per era,Crown Counsel, for tho Attornoy-Genoral.
Cur. adv. vutt.
Novombor 25, 196S. Azjles, J.—
Tho accused, who was the owner of a shop called Asir Stores, Avissa-wdla, was charged and convicted under sections 43 (1) and 43 (2) of thoShop and Office Employees (Regulation of Employment and Remunera-tion) Act (Cap. 129), (hereafter referred to as tho Act), as amendedby Acts Nos. GO of 1957, 2S of 19G2 and 2G of 1966, thereby committingoffences punishable under section 51. (3) of the amondod Act.. No 26 ofI960.~
Thcre is no dispute with regard to tho facts which may be brieflystated :
Tho accused, as the registered owner of tho said shop, employed acashier called Jayarajah and a salesman called Cyril. On 26.2.67, whichhappened to bo a Sunday and a day on which no business could botransacted according to Closing Order P3, whilo Labour Officer Prema-wardena and his assistant Alutge wore on patrol duty about 7.35 p.m.along tho main road at Avissawolla, they saw a customer enter AsirStores through an open plank of tho planked door. They ontcrcd thoshop and saw Cyril selling a bottle of Quink and a bottlo of gingolly oil.Tho parcel of goods was handed to tho customer who then asked fora pound of sugar. Jayarajah, tho cashier, was in charge of the boutique.Prcmawardena then rovoalcd his identity. Tho accused was not present,having gone to Colombo and returned at 9 p.m. Tho learned trial Judgeon an examination of the evidence has held that the shop had beenopenod and that tho customer was served by the employees. On thesefacts, tho accused was charged under section 43 (1) and 43 (2) of theAct.
Section 43 (1) and (2) of the Act reads as follows :
43.(1) No shop shall be or remain open for tho serving of customers
in contravention of any provision of any closing order mado underthis Act.
(2) It shall be tho duty of tho employer to prevent any customorfrom Entering the shop on any day or at any' time when such shop isrequired by an}' closing order to be closod for tho serving of customers.
Learned Counsel for tho appellant raised two questions of law andsubmitted that tho accused could not have been found guilty for acontravention of thoso two sections. It was his submission, firstly, that
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ALLES, J.—Asirwu’.ham v. Premawardena
the Closing Ordor P3 and tho copies of tho certified extracts of the CeylonGovernment Gazette produced Pi, P2 and P4 did not constitute ovidoncoon which a court can act because in his submission thoro was no evidencethat the extracts containing the closing ordor were purported to havebeen printed by tho Government Printer as roquired under section Goof tho Act. Tho extracts that have boon produced bear tho legend thatthey wore printed by the Government Printer and having regard tosection 57 of the Evidence Act, judicial notice of tho Gazettes and itscontents can be taken. Tho Divisional Bench case of Sivasampu v. J nanAppu 1 has laid down tho principle that there would be sufficientcompliance with tho requirements of tho law if in the complaint orreport to Court thcro is a reference to the Gazette in which the invokedrule appears. Counsel’s first submission therefore fails.
Tho second submission of learned Counsel for the appellant related tothe liability of the employer under section 43 of the Act. Tho evidenceestablished that tho shop romained open for the serving of customers incontravention of the Closing Order P3. In the absence of evidence thatthe emplo3'cr had taken stops undor section CO (1) of tho Act to prove totho satisfaction of tho Court that he had used due diligence to enforcethe provisions of tho Act and to ensure that his employees did not commitany offences without his knowledge, consent or connivance, tho employermust be doomed to have contravened the provisions of section 43 (2).Tho Act which is meant for the protection of shop employeos, providosthat tho primary obligation for tho contravontion of its provisions restson the employer. Learned Crown Counsel has drawn ni3r attention to thounreported judgment of Tambiah, J. in S. C. Case No. 1209-1211/G7,
M.C. Colombo South No. S1593/B where my brother has held that thoconviction of an owner of a shop for a contravention of sections 43 (1)and (2) cannot be sustained in tho absence of the owner from tho shopat the time when tho offences were committed. With respect, I am unableto agroo. In tho judgment cited, my brother has not considered thoprovisions of soction GO (I) of the Act in arriving at his conclusions.Tho primary liability therefore being on tho employer, ho has not soughtto discharge this liability in any wa v and is therefore guilty of an offenceunder section 51 (3) of fho Amendment Act No. 20 of 1900.
It was also opon'to tho prosecution undor section 59 of tho Act toproceed against tho cashier and tho salesman in this case if they are sominded.
I therefore hold that tho submissions of Counsel on tho law are notentitled to succeed and tho appeal is dismissed.
Appeal dismissed.
1 (1037) 3S X. L. R. 360.