031-SLLR-1984-V1-BROWN-CO.-LTD-v.-ADHIKARIARACHCHI-LABOUR-OFFICER-AND-ANOTHER.pdf
220
Sri Lanka Law Reports
11984] 1 SriL. R.
BROWN & CO. LTD.
v.ADHIKARIARACHCHI. LABOUR OFFICER AND ANOTHER
COURT OF APPEAL.
E. DE SILVA. J. AND T. D. G. DE ALWIS. J.
A. APPLICATION 214/82- M.C. MAUGAKANDA 91296.
JANUARY 23, 1984.
Autrefois acquit – Issue estoppel – Section 314 of the Code of Criminal Procedure Act,No. 15 of 1979- Sections 2 and 4 of the Wages Boards Ordinance.
The Labour Officer filed plaint against B. & Co. alleging that it had deducted a sum ofRs. 500 from the salary of an employee A without his consent in contravention of theprovisions of s.2 (a) of the Wages Boards Ordinance read with Regulation 2(1) (a) ofthe Regulations of 1971 and thereby committed an offence punishable under s. 4(1) (b)of the Wages Boards Ordinance.
B & Co. had previously been charged before the same court on the identical provisionsof the same law In relation to the identical employee in respect of a deduction of Rs.300 and in that case the Magistrate had held that the employee was not a person towhom the Wages Boards Ordinance applied.
In the present proceedings B & Co. tendered a plea of autrefois acquit but theMagistrate overruled the objection.
Held-
The offences in the two cases are not the same but are different and distinct.
Having regard to the provisions relating to the plea of autrefois acquit in the Code ofCriminal Procedure Act, No. 15 of 1979, such a plea cannot be sustained by theaccused.
Cases referred to:
Connelly v. D. P. P, (1964]2AUER401.
Pritam Singh v. State of Punjab, AIR 1966 S.C. 415.
Queen v. Ariyawantha, (1957) 59N.L.R. 241, 244.
D. P. P. v. Humphrys, [1976] 2 All ER 497.
P. M. K. Tennekoon v. Queen, (1965) 69 C.L.W. 28.
CA
Brown & Co. Ltd. v. Adhikartarachchi (B. E. De Silva. J.)
221
APPLICATION for revision.
N. Sinnsthamby with N. T. S. Kularatne and Snyani Obeysekera (or the petitioner,
J. CunaSekera. State Counsel, for the complainant-respondent.
M Kanagaratnam for the intervenient-respondent.
Cur. adv. vult.
February 28, 1984.
B. E. DE SILVA, J.
The accused-petitioner has tiled this application and for the reasonsstated therein has moved to revise the order of the learned Magistratedated 2.12.81.
The facts material to this application are as follows :
The complainant-respondent filed plaint against theaccused-petitioner in the Magistrate's Court of Maligakanda allegingthat the accused-petitioner whilst being the employer of one J. D.Abeysekera its employee,did on or about 10.2.1978 deduct a sum ofRs. 500 from the January 1978 salary of the said employee withouthis consent in contravention of. s. 2 (a) of the Wages BoardsOrdinance (Chap. 136) read with Regulation 2 (1) (a) of theRegulations of 1971 published in Government Gazzette No. 14,961of 4.6.1971 and thereby committed an offence in terms of s. 4 (1) (b)of the Wages Boards Ordinance. A copy of the charge sheet isannexed marked "A".
The accused-petitioner had previously been charged in proceedings68797 of the same Court for having committed an offence under theidentical provisions of the said law and in relation to this indenticalemployee in respect of a deduction of Rs. 300 made in the month ofDecember 1977 from the salary of the emplpyee for November 1977.In the said proceedings the accused petitioner admitted the deductionand the only question in issue was whether or not the said employeewas a person to whom the Wages Boards Ordinance applied. Aftertrial the learned Judge held that the said employee J. D. Abeysekerawas npt a person to whom the Wages Boards Ordinance applied andaccordingly acquitted the accused company. A certified copy of thecharge sheet, proceedings and the order of the learned Judge in case68797 are annexed marked "B". The said decision of the learnedJudge has not been appealed against.
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[1984} 1 SriL. R.
In the present proceedings 91296 the accused petitioner-companytendered a plea of autrefois acquit on the footing that in proceedings68797 there was a valid and binding determination of a competentCourt that J. D. Abeysekera was not a 'worker' within the definition ofthe said term in the Wages Boards Ordinance and accordingly not anemployee to whom the said law applied and that the saiddetermination being binding on the Commissioner of Labour suchdecision could not be canvassed in subsequent proceedings. At thetrial in action 91296 submissions were made by the Attomeys-at-lawwho appeared for the accused-petitioner, complainant-respondentand certified copies of the charge sheet, the evidence and theorder made in action 68797 were marked and produced in evidence.
The learned Magistrate by his order dated 2.12.81 overruled theobjections of the accused-petitioner company.
At the argument before us it was urged that the learned Magistratefailed to identify or address his mind and or failed to consider the pleataken by the accused-petitioner in case No. 68797. The material issuewhich required adjudication in the present case had been judiciallydetermined by a competent Court which held that J. D. Abeysekerawas not covered by the Wages Boards Ordinance and therefore thepresent charge made in pursuance of the same provisions of the saidorder cannot be maintained in law and that the said determination wasbinding on the Commissioner of Labour and the State in theseproceedings and accordingly should result in an acquittal of theaccused petitioner. It was further urged that the learned Magistratehad considered extraneous matters in arriving at a decision against theaccused company which matters were never argued and were not inissue upon the plea taken by the accused company.
Learned Counsel for the accused-petitioner referred to the decisionsin Connelly v. Director of Public Prosecutions (1); Pritam Singh v.State of Punjab (2) Spencer Bower on Res Judicata, 2nd Ed. {Turner)at page 283 and Queen v. Ariyawantha (3) to show that the principleof issue estoppel applied to criminal proceedings. It was submittedthat on an application of these principles the accused was entitled tosustain the plea of autrefois acquit.
CABrown & Co, Ltd. v, Adhikariarachchi (B. E, Da Silva. J.)_223
Learned. State Counsel and learned Counsel for the 2nd .respondenton the other hand referred us to the decision in Director of PublicProsecutions v. Humphrys (4) where it was held that the principle ofissue estoppel does not apply to criminal proceedings. The attentionof Court was also drawn to the decision in P. M. K. Tennekoon v.Queen (5).
I have given consideration to the submissions made by Counsel forthe parties. In determining the question whether the accused isentitled to sustain the plea of autrefois acquit due consideration mustbe given to the provisions of our Code of Criminal Procedure as to thecircumstances when this plea can be sustained. Our Code of CriminalProcedure Act recognises the .plea of autrefois acquit or autrefoisconvict only to the limited extent set out in s. 314 of our Code ofCriminal Procedure Act, No. 15 of 1979. Section 314 {1) providesthus :
"a person who has once been tried by a court of competentjurisdiction for an offence and convicted or acquitted of such anoffence shall while such conviction or acquittal remains in force notbe liable to be tried again for the same offence nor on the samefacts for any other offence for which a different charge from the onemade against him might have been made under s. 166 or for whichhe might have been convicted under s. 167 .'
A careful perusal of the offences in case 68797 and in the presentaction 91296 would show that the offences in the two cases are notthe same but are different and distinct. In the circumstances havingregard to the provisions relating to the plea of autrefois acquit ascontained in our Code of Criminal Procedure Act such a plea cannot besustained by the accused company. I am of opinion that the learnedMagistrate has correctly overruled the plea of autrefois acquit raisedby the accused petitioner. I refuse the application of the petitioner.The case should now proceed to trial on the charge against theaccused petitioner.
T. D. G. DE ALWIS, J.,-l agree
Application refused.