109-NLR-NLR-V-50-M.-G.-PERERA-Petitioner-and-INSPECTOR-OF-LABOUR-MATUGAMA-Respondent.pdf
M. G. Perera v. Inspector of Labour, Matugatna
421
1949Present: Wijeyewardene C.J.M. G. PERERA, Petitioner, and INSPECTOR OFLABOUR, MATUGAMA, Respondent
S. C. 85—Application for Revision in M. C. Kalutara, 553
Wages Boards Ordinance—Prosecution—Sanction of Commissioner of Labour—Must refer to particular charges—-Failure not curable—Ordinance 27 of1941—Section 54.
The sanction for a prosecution required by section 54 of the WagesBoards Ordinance, No. 27 of 1941, must refer to the particular chargesmade in the written report of the complainant and cannot be made ingeneral terms. A defect in the sanction cannot be cured by the applica-tion of the provisions of section 425 of the Criminal Procedure Code.
^Application to revise an order of the Magistrate, Kalutara.
H. V. Perera, K.C., with C. Seneviratne, for the petitioner.
A. C. Alles, Croum Counsel, on notice.
Cur. adv. vult.
cf. V. D. KeeseL, Theses, 671.
422 WXJ is Y EWARDENE C. J.—M.. &. Per era v. Inspector of Labour, Matugama
May 27, 1949. Wueyewabdene C.J.—
The complainant, an Inspector of Labour, filed a written report under-section 148 (1) (b) of the Criminal Procedure Code charging the accusedon two counts. The first count was that the accused “ being anemployer in trade, to wit, the motor transport trade …. did onor about September 10, 1947, at Maggona …. in breach ofsection 21 of the Wages Board Ordinance …. fail to pay toone G. D. Lewis Singho, a Class B worker in the motor transport trade,employed by the said employer in the said trade, the minimum timerate of wages in respect of work done by the said worker during the monthof August, 1947, in accordance with the decisions of the Wages Boardand that he has thereby committed an offence punishableunder section 39 (1) of the said Wages Board Ordinance …
The second count was in identically similar terms, but referred to theaccused’s failure to pay the minimum wages to one W. M. GunaratneBanda for August, 1947.
The Magistrate held that the charges were proved but dealt with theaccused under section 325 (1) (a) of the Criminal Procedure Code. Inthe course of his judgment he said :—
‘ ‘ In my opinion the accused has not been dishonest in not making-the payments to these two lorry drivers. He appears to have with-held this payment at the basic rates upon a certain view of the lawhe has taken ; and when called upon by the Commissioner of Labour-ite has deposited with the latter the total amount of the under-payment.The view taken by the accused appears to be arguable. In the cir-cumstances the law will be sufficiently vindicated if I act under theprovisions of section 325 of the Criminal Procedure Code in warningand discharging the accused”.
The question I have to consider is whether the prosecution in thiscase has been instituted in contravention of section 54 of the WagesBoards Ordinance, Ho. 27 of 1941. That section reads—
“ Ho prosecution for any offence under this Ordinance shall beinstituted in any Court except (a) with the written consent of theController, and (b) within one year of the commission of the offence ”.
The designation “ Controller of Labour ” has been changed into-“ Commissioner of Labour ” by Ordinance Ho. 22 of 1945.
In this case I find in the record a typed writing signed by the ActingCommissioner of Labour which reads as follows :—
“I,…. Acting Commissioner of Labour, do hereby, in terms-
of section 54 of Ordinance Ho. 27 of 1941, sanction the prosecution.of … Hew Bullers Road, Colombo, upon the followingcharges,:
Charge 1. Breach of section 21 of Ordinance Ho. 27 of 1941—anoffence punishable under section 39 (1) of the said Ordinance.
Charge 2. Breach of section 21 of Ordinance No. 27 of 1941-—ail-offence punishable under section 39 (1) of the said Ordinance
Muthusamy o. David (S. I. Police)
423
It will be noted that this sanction is in very general terms and does-not state that the offences have been committed in respect of payments-due to G. D. Lewis Singho and W. M. Guneratne Banda or in fact to anyemployee in the motor transport trade at Maggona. It does not state-that the offences were in respect of wages due for August, 1947, or thatthe offences were committed on or about September 10, 1947. There is-nothing to show that the sanction refers to the particular charges madein the written report of the complainant. There would have been nodifficulty if the sanction was endorsed on the written report, as it isusually done. The record does not show how and when the sanction waspresented to the Court. There is nothing to connect the sanction with/the report. The report itself is undated. This defect was cured by theprosecution calling evidence to show that the report was handed to the-Chief Clerk of the Magistrate’s Court on September 2, 1948, about a.week before the expiry of the period of limitation. Even then, no evidencewas led to show that the sanction was handed with the report. Thereis no evidence in the case to show that the Commissioner of Labour-sanctioned this prosecution. In view of the remarks of the Magistratecited by me earlier this appears to me to be particularly a case in which aCourt should be satisfied that the Commissioner of Labour gave his=mind to the particular facts connected with the charges made and thathe sanctioned the prosecution. Of course, if the sanction was properlydrawn up or was endorsed on the report, the Court would have beensatisfied without any further evidence. The defect I have referred tocannot be cured by the application of the provisions of section 425 (&),.as that section refers to a sanction required by section 147 of the Code.Nor do I think it possible to have recourse to section 36 of the CourtsOrdinance. To do so would be to extend the operation of section 425 (byof the Criminal Procedure Code, when the legislature itself had restrictedits scope by reference to sanctions under section 147 of the Code (videBertram C.J’s observations in Cornells Hamy v. Thoronis el al.1).
Eor the above reason I quash the finding of the Magistrate and dischargethe accused.
Accused discharged.