088-NLR-NLR-V-58-P.-KARIYAWASAM-Inspector-of-Labour-Appellant-and-S.-A.-RAFEEK-Respondent.pdf
1956Present : Sinnetamby, J.
P. KARIYAWASA1I (Insi>ector of Labour), Appellant, andS. A. RAFEEK, Respondent
S. C. 6S9—M. G. Balapitiya, 13,919
Shop mi<1 Office Employees (Regulation of Employnunt and, Remuneration) Art, Xo. 19of 1951—Prosecution thereunder—Pourer of Assistant Commissioner to sanctionit—Sections JG, G4, GS—Evidence Ordinance, s. 114 (d)—Criminal ProcedureCode, s. 393.'■■
■Vhero a prosecution under the SItop and Office Employees (Regulation ofEmployment and It enumeration) Act was sanctioned by an AssistantCommissioner of Labour—
Held, that an Assistant Commissioner wns entitled to sanction the prosoent ionunless tlio Commissioner gave direction to tho contrary. In such a case, it isnot necessary for the complainant to prove that no limitation ivas placed uponthe power of tho Assistant Commissioner.
-^"^-PPEAL from a judgment of Hie Magistrate's Court, Balapitiya.
T. Thamolliemni, Senior Crown Counsel, for the complainant-appellant.■
N. E. Weerasooria, Q.O., with D. E. V. Dissanayaka and E. D.Wikramanayake, for the accused-respondent.
Cur. ailv. vult.
October 30, 1956. Sixxet.amby, J.—
The accused-aiipellant was charged in this case under the Shop andOffice. Employees (Regulation of Employment and Remuneration)Act, with having kept his shop open after hours and with serving a cus-tomer who had come there to purchase goods. The learned Magistratefound that the accused had contravened the provisions of the Act but,nevertheless, proceeded to acquit him on the ground that the prose-cution had not been sanctioned by tho Commissioner of Labour as requiredby section 04 of the Act. Tho appeal is against this finding.
It would appear that the prosecution was in fact sanctioned by theAssistant Commissioner. The proceedings do not show that anyexception was taken to the prosecution till the final stages of the trialpresumably when Counsel addressed the Court. Section GS of the Actprovides that the word “Commissioner” includes “subject to anydirection giYcn by the Commissioner under section 46 (2) any Deputy orAssistant Commissioner ”. I reproduce the entirety of section 46 fromwhich it is apparent that there is a distinction drawn between a Deputyor Ass is taut Commissioner and an officer appointed under sub-section 3 :
Section 46.—(I) The Commissioner of Labour shall be the officer-in-charge of the general administration of this Act.
Subject to any general or special directions of the Commissioner,
•any Deputy or Assistant Commissioner of Labour may exercise,
perform or discharge any – power duty or function oftho Commissioner under this Act or- under any regulation.
There may be appointed such number of officers and servants as
may from time to time be required for the purpose of carryingout or giving effect to the provisions of this Act.
The Commissioner maj' either generally or specially authorise anjr
officer appointed under sub-section (3) to exercise, perform ordischarge any power, duty or function of the Commissionerunder this Act or under any regulation.
Sub-section 2 empowers a Deputy or Assistant Commissioner toexercise the function of a Commissioner subject to the proviso that itcan be modified or restricted by general or special direction of the Com-missioner. Sub-section 4 does not give this general power to the officerappointed under sub section 3 but such officer can exercise that poweronly if he is specially authorised to do so. It will thus bo seen that aDeputy or Assistant Commissioner derives his authoriljr by virtue of hisoflicc but this is subject to a limitation which may be placed upon it.The special officer, on the other hand, derives his power from the authoritygranted to him by the Commissioner. Before, therefore, such a specialofficer can exercise the functionsofa Commissioner he must first show thathe has the authority. It is obvious that in such a case a prosecutionlaunched with the sanction of such an officer must on the face of it showthat the officer had the authority granted to him.
The-case of the Deputy Commissioner is otherwise. Normally he canexercise the functions of a Commissioner unless prevented from doingso by special directions. Where, therefore, a prosecution is authorisedby an. Assistant Commissioner it would be reasonable to infer that nolimitation had been placed upon his powers. His act is an official actand in my view the presumption created by section III, illustration D,of the Evidence Ordinance would apply. Section 111, illustration D,is to the following effect:—
"The Court may presume that judicial and official acts have beenregularly performed. ”
If therefore an official purports to act by virtue of his office there ispresumption that he did so regularly without any limitation being placedupon his powers. He derives his power by virtue of his office unlike aperson appointed under section 46 (3) where the right is derived fromthe authority that is given. In my view therefore it was not necessar3rfor the prosecution to prove the negative fact that no limitation hadbeen placed upon the normal powers which an Assistant Commissioneris empowered to exercise.
Learned Crown Counsel drew my attention to section 303 of the CriminalProcedure Code in regard to the delegation of the Attorney-General’spowers. Under that section the Solicitor-General and Crown Counselderive their authority on a special or general direction from the Attorney-General. In that respect it is somewhat similar to the case of a specialofficer appointed under section 4.6 (3). But even in such a case whereno objection was taken at the trial the Supreme Court lias applied the
principle embodied in section 11J-, illustration D, of tlio Evidence Ordi-nance following the maxim, “ omnia praesumuntur rite esso acta. ”(Vide 5 Balasingham's Notes 19).
I accordingly hold that the prosecution was in order and dulysanctioned. I therefore set asido tho order of acquittal and remit thecase to the magistrate for him to deal with the accused according to law.
Acquittal set aside.