111-NLR-NLR-V-74-P.-P.-PALANIYANDI-PILLAI-and-another-Appellants-and-THE-LABOUR-OFFICER-NUWARA.pdf
Palaniyandi Pillai v. The Labour Officer, Xuuara Eliya
471
Present : Samerawickrame, J.
P. P. PALANIYANDI PILLAI and another, Appellants, and THELABOUR OFFICER, NUWARA ELIYA, Respondent
S. G. 1012-1013167—31. C. Nmcara Eliya, 3327S
Shop and Office Employees (Regulation of Employment and Remuneration) Act(Cap. 120)—Sections 51, 02 (3)—Vicarious liability of employer—Quantum ofevidence-—Business Xames Ordinance (Cap. 110), s. 12.
Whore an omploycr is prosecuted as being vicariously liable to bo punishedunder section 51 of the Shop and Office Employees (Regulation of Employmentand Remuneration) Act in respect of on offence committed by his employee,primo facio proof that he is the employer of the shop in question may bofurnished partly by tho evidence of tho officer who delected tho offence thattho namo of tho accused appeared in the certificate exhibited in tho shop incompliance with tho requirements of section 12 of tho Business IsamcsOrdinance.
-A.PPEAL from a judgment of the -Magistrate’s Court, Xuwara Eliya.
E. Chilly, Q.O., with P. Nagendran and G. E. Chilly (Jnr.), for thoaccused-appellants.
S. Aziz, Crown Counsel, for the Attorney-General.
Cur. adv. wit.
472
SAMERAWICKRA3IE, J.—Palaniyandi Pillai v.
The Labour Officer, Nuwara Eliya
January 13, 1970. Sameravtickrame, J.—
The appellants have been convicted of two offences under the Shop-and Office Employees (Regulation of Employment and Remuneration)Act punishable under Section 51 of the Act. They have been madevicariously liable as employers. Learned counsel for the appellantssubmitted that there was no proof that the appellants were the employersof the manager of the shop in question. He pointed to the fact thatthough a certified copy of the certificateof registration issued under theBusiness Names Ordinance had been produced the presumption providedfor by s. 62 (3) of the Shop and Office Employees Act did not arisebecause that certified copy had not been issued within one month beforeor within, one month after the date of the alleged commission of theoffence. The offence alleged was committed on the 15th of March, 1966,and the certified copy has been issued on the 19th of October, 1966.There was however evidence of the Assistant Commissioner of Labourwho detected the offence that the original certificate of registration ofthe business was in the shop and was produced before him. Section 12of the Business Names Ordinance requires that the ■ certificate ofregistration or a certified copy thereof shall be kept exhibited in aconspicuous position at the principal place of business of the firm.The original appears to have been kept in the shop in compliance withthis provision. Moreover, had there been a change in respect of thepartnership between the 15th of March, 1966, and the 19th of October,1966, when the certified copy was issued, such change would haveappeared in the copy. I am therefore of the view that a prima faciecase has been made out by the prosecution to prove that the appellantswere the employers and that, in the absence of any evidence led bythe defence, the fact that they were the employers must be consideredto have been established.
The learned magistrate has imposed a sentence of two weeks’ rigorousimprisonment on each of the appellants. As the appellants were madeliable vicariously for an act which was done in their absence, I thinkthat they should be given the option of paying a fine. However, in viewof the circumstances set out by the learned magistrate in imposing thesentences, it is necessary that heavy fines should be imposed.
I affirm the convictions of the 1st and 2nd accused-appellants but setaside the sentences of imprisonment passed on them and in place of them,
I impose upon each of the accused-appellants a fine of Rs. 400 and indefault of the payment of fine a sentence of four weeks’ rigorousimprisonment on count (1) and a further fine of Rs. 400 and in default ofthe payment of fine a sentence of four weeks’ rigorous imprisonment,on count (2).
Convictions affirmed. Sentences altered.