P. W. WAAS, Appellant, and E. GANEGODA (Inspector of Labour), Respondent

137-NLR-NLR-V-57-P.-W.-WAAS-Appellant-and-E.-GANEGODA-Inspector-of-Labour-Respondent.pdf

1956Present: Gunasekara, J.
p. V. WAAS, Appellant, and 1C. GANEGODA (Inspector of Labour),
Respondent-.
S. C. 507—-M. C. Ncgombo, 77,497
11 'ayes Boards Ordinance, Aro. 27 of 19-11—Prosecution thereunder—Burden of proof—Sections 21, (1), 42.;
"Where an employer is charged with failing to pay a worker wngC3 at not lessthan the minimum rato, in contravention of section 2 1 of the "Wages BoardsOrdinance, but the ovidenco properly ndmittod at the trial is insufficient toprove that the worker was entitled to payment of wages in respect of the period. mentioned in the charge, there is no burden on the accused to prove, in terms ofsection 42, that payment was duly made by him.
■Appeal from a judgment of tho Magistrate's Court, Negombo.
G. E. Chilly, with J. A. L. Coo,ay and Daya Perera, for tho accused-appellant.
T T. Thamotheram, Crown Counsel, for the Attorncy-Goneral.
■Cur. tide. vult.
February 22, 1956. Gunasekara, J.—
Tho appellant, was convicted of three offences punishable under section39 (1) of tho Wages Boards Ordinance, No. 27 of 1941, alleged to haveboon committed by him .on or about tho 1st December, 1953. Tho alle-gation in each count of tho charge was that being the employer of a workerin tho coconut manufacturing trade ho had, in contravontion of section21 of the Ordinance, failed to pay that worker for w ork done in tho poriod22nd to 2Sth November wages at not less than the minimum rate. Thoworkers wore three women named Jane Silva, Winifreda Fernando andJuliliamy.-
Part II of tho Ordinanco, in which sections 21 and 39 occur, was appliedto tho coconut manufacturing trado on tho 1st April, 1919, by an ordermade under ^section 6 (1 J, and a wages board for that trade was establishedon tho same day by an order mado under section 8 (1). At tho timematerial to tho cluvrge thoro were in force docisions of tho wages boarddetermining, Among other things, minimum rates of wages for piecowork “ applicable to cortain processes in tho activities of tho CoconutManufacturing Trade ” and minimum ratos for timo work applicable toall othor proccssos in tho. activities of that trade. Soction 21 of thoOrdinanco provides that.
whore any decision of a Wages Board, whereby a minimum rate ofwages for any trado is dotormined, has come into foreo, evoryemployor shall pay to every workor to whom such minimum rato isapplicable, wagos at not loss than such minimum rate ;and section 39 (1) provides that
every omploj'er who fails to paj' wagos to any worker in accordancewith, tire provisions of section 21, shall bo guilty of an offence.
The appellant was at the material time tho owner of a mill for the manu-facture of coconut fibro, an activity of the coconut manufacturing tradeas defined in the order by which Part II of the Ordinance was appliedto that trade. Tho prosecution put in as part of its case a document,marked P13 and headed “ Pay list of Workers cmplojed at KapuwattoMiljg from 23rd November 1953 to 2S. 11.53 ”, which was alleged to be anextract from the wages records kept at the appellant’s mill. One of thogrounds on which tho appeal was pressed was that this document wasimproperly admitted in ovidcncc.
The admission of tho document was objected to at the trial by Mr.Cooray, who appeared for the appellant, and the learned jnagistrate madetho following order overriding the objection :
“ Th.e accused lias been noticed to produce these records butaccording to Mr. Adv. Cooray these records aro with the Assistant Com-missioner of Labour. Tho prosecution states that tho rocords had beenreturned to th.e accused. The application of tho prosecution to leadsecondary evidonco, with regard to tho contents of theso records istherefore allowed. ”
According to the case for the prosecution, P13 is an extract from abook that was in the mill on the 20th August, 1954, and was made by aninspector of labour at tho mill itself on the occasion of an inspection heldby him on that day. Evidenco to this offoct was given by the inspector,
Mr. Ganegoda, after tho learned magistrate had mado tho order quotedabove. Tho witness denied a ' suggestion made to him in cross-examination that he was keeping the books with him. It was also sug-gested to him that the appellant had come to the Labour Department’soffice on the Sth August, 1954, and he- said that ho could not romomberwhother tho appollant had done so. He admitted that the appellantwas not present at tho mill on the 20th August, 1954, and thore is noovidcnco that the appollant had notice of tho inspection.
Tho appellant gave evidenco to the effect that he had taken to the.Labour Department’s office on the 8th August, 1954, "all. the books”.. (meaning apparently all tho wage records) and had loft with Mr. Ganogodaall oxcept those relating to the year 1954.“ All the books wore
forwarded to. the Labour Department ”, ho said. “Mr. Ganegodawanted tho books. -I left the books in tho office of the Department ofLabour. I have tho 1954 books. ” Cross-examined on this point hosaid “ I took tho records to the Labour Office, Negombo.. That wason 8fch August 1954. The books were kept by tho Inspector, Mr.Ganegoda. ”
It appears from tho learned magistrate’s judgment that ho has•accoptod tho appellant’s ovidenco that tho books were taken to thoLabour Dopartmont’s office on the 8th August, 1954. ' Ho holds, howovor,that they were taken away again bjr tho appellant and wore in the latter’scustody at the time of tho trial. Having dealt with certain ovidenco totho effect that Mr. Ganogoda had removed wage records from the mill on7th December, 1953, and returned them on the 17th December, tholearned magistrate says :
“ Thereafter tho books were taken to the Labour office by thoaccused on S.8.54. Tho accused says these books wore rotained atthe offico from that dato, but Inspector Ganegoda’s evidence, which Ihavo no reason to doubt is that they wore removed by the accused andthat he took extracts from them at the Mills on 20.8.54. PI3 is onesuch extract. I am satisfied that the wago records for the relevantperiods are in tire custody of tho accused and that ho lias not producedthem in Court in spito of the notices served on him. The prosecutionwas therefore entitled to lead secondary evidence of thocontonts of thowage records for the relovant period ”.
Tho finding that tho wage records were in the appellant’s custody is"based on a misdiroction as to the ovidcnce given by Mr. Ganegoda ; forit appears from the record of the evidenco that ho has not said anythingto the offect that tho books that wore brought to his offico on the 8th August ,1954, (or any books) were removed by tho appellant. At tho time whentbo learned magistrate made his order allowing the prosecution to adducesecondary ovidenco of tho contents of tho wago record in question thorowas no material boforc tho court to support a finding that the originalwas shown or appeared to be in the possession or powor of the appellant;there was only a denial by the officer conducting the prosecution of anallegation made by counsel for the defence that the wage records had been“ loft at tho Department of the Commissioner of Labour for inspection ”.For theso roasons the contention that the document P13 was improperlyadmitted in evidenco must bo upheld, and that documont cannot berelied upon by tho respondent in support of the conviction.-
It appears that in November, 1953, tho minimum rate of wages appli-cable to each of the threo workers montionod in the charge was a timo-rato_of Its. 1*79 for a normal working day of 9 hours and 28 cents an hour forovertimo work. Tho prosecution relied mainly on tho documont P13 to
provo tho quantity of tlmo-work dono by each of tlio throo vonionduring tho poriod 23rd to 2Sth November, 1953, and tho rato at whichthey wore paid. Tho throo womon thomsolvos wore called as witnessesfor tho prosecution, and it is contended by the learned crown counsol thatovon if P13 is loft out of consideration their ovidonco, which was givenon tho 30th March, 1955, is sufficient to support tho conviction.
Jano Silva, who is tho worker to whom tho first count relates, stated thatshe had boon working as a labourer at tho appollant’s mill from tho 3rdNovember, 1953, and was still employed there, that sho had always beenpaid at tho rato of Rs. 1 ■ 50 a day and no more, and that sho had not beenpaid any overtime wagos. She admitted, howovor, that sho could notsay on how many daj's sho worked during tho period in question, andsho did not claim to havo worked or to have boon at tho mill on ovon asingle day that week. Sho said “I start work at 6.30 a.m. and work
till 5.30 p.mWo havo ouo hour for our moals ” ; but sho
did not say that in tho material period, too, which was sixteen months,oarlior, those woro hor hours of work or ovon that sho was prosont at thomill on any day in that poriod.
Although this witness alleged in her ovidenoe that right up to tho 30thMarch, 1955, sho had boon paid at tho rato of Its. 1-50 a day,sho admitted that when sho was paid on Saturday the 12th March, 1955,hor wagos for tho wook that onded on that day she signod a receipt (DJ)acknowledging that sho had boon paid at tho rato of Rs. 1*87 a day. Shoexplained that sho signed it because tho appellant said that otherwiseho would rofuso to give hor work. In re-examination sho said that shocould not read the document and that her sight was " not good ”. Infurthor cross-examination she admitted that she could ** read and sign inSinhalese ”. D1 is written and signed in that language.
Tho 12th March, 1955, was the day on which tho trial began. Thoappellant had appeared bofore tho magistrate's court on tho 5th Marchand pleaded not guilty to tho charge, and on that day the magistrate hadfixed the trial for the 12th March and ordered tho issuo of summonsesrequiring tho prosocution -witnesses to attend at tho trial. It sohappened that tho 12fch March was also a pay-day. According to thoapjxeUant’s ovidonco that was tho first occasion on which lio had obtainedreceipts from the vorkors. “ I am awaro ”, ho said, “ that they hadgone and complained that they had received Rs. 1 • 50 as wago3. I tookreceipts in ordor to safeguard myself ”.
Winifreda Fernando, to whom tho socond count relates, stated that shohad boon working as a labourer at this mill from August, 1953, but shodid not say whothor sho did or did not do any work or attend at tho millduring tho wook in question. Sho said that hor wages had always boenRs. 1*50 a day, and that sho had never boen paid ovortimo wagos. Shotoo stated what hor hours of work were at tho time of tho trial but notwhat they had boen in tho poriod 22nd to 2Sth November,-1953, if sho did<lo any work that wook. Sho too had signod a receipt (D2) on the 12thMarch, 1955, acknowledging that sho had beon paid at tho ra to of Rs. 1 • 87a day. -This documont too has been written and signod in Sinhalese.
■When this witness was cross-examined about the receipt D2 she said i- • “This bears my signature. In this I have been paid Rs. 1-87.I was paid only Rs. 1-50 a day. I am unable to read this. I canroad Sinhalese. I did not writo this but I only signed it. Throughfear I signed the document. The accused told us that ho would notpay us if I did not sign it. ”-•
Sho further said :'…
“I was not aware that I was. signing a receipt for Rs. 1-87.I thought that I was signing for my weekly salary. Before this wedid not sign such documents. Whon I questioned him tho accusedsaid that he suspectod us. He said that he would not make paymentswithout receipts .”
Julihamy, to whom the third count rotates, said that she had been“ working in tho mill from the day it startod ”, that sho had been" working from 1953 ” and that “ in November 1953 also ” she workedthere. Thoro is nothing in those vague statements to show clearly thatshe worked at the mill or was present thoro on any of the days in the period22nd to 2Sth November, 1953. Hor ovidonee as to what she was paidreferred only to tho rato at which sho was being paid at the time oftho trial. She too signed a rocoipt (D3) on tho 12th March, 1955, acknow-ledging that sho had boon paid at tho rato of Rs. 1 * 87 a day and shoadmitted that she could read Sinhalese, the language in which the docu-ment was written and in which she had signed it. Hor explanation wasthat she signed it booauso she was “ in a hurry to go home ”, that she“ was made to understand that this was a rocoipt for weekly wages ”,and was also told that sho would not be paid her weekly wages if she didnot sign it.
The prosecution also adduced, through Mr. Ganegoda, evidence to theeffect that the appellant had committed other offences besides thosealleged against him in the present charge. It was elicited from thiswitness in examination-in-ehief that at an inspection of the mill held byhim on the 11th Novembor, 1953 (before tho period to which the chargerelates) ho had questioned Jane Silva and Winifred a Fernando and theyhad mode statements to the effect that they were being paid wages atless than tho minimum time-rate, and that Winifreda’s statement wasconfirmed by Julihamy. Ho also stated, in examination-in-chief, thaton that occasion hc.“ examined tho wages record and found that womenhad been underpaid ”. All tlieso items of evidence weic inadmissible,both on the ground that they wero not relevant to the charge and on tho-ground that they constituted inadmissiblo hearsay.
Tho proseoution also put in evidonco a letter dated tho 14th December,1953, (P14) from tho appellant to Ganogoda in which tho appellant hadsaid tlxat “ tho wages paid at the rate of Rs. 150 per day ” woro wages“ paid to tho boys and girls and not to men and women ”. (Jane, Wini-freds. and Julihamy were 4G, 4S and 3S years old, respectively, and wereentitled to be paid at tho rato applicable to adults.) Referring to thisstatement mado by the appellant Mr. Ganogoda said in his oxamination-in-chief “ He says that Jane and Winifreda are girls ”. There is no such
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statement- in the Jotter itself, however, and tlicrc is no evidence that■warrants a view that tlie appellant- admitted tliat Jane and Winifredawero two of tlie workers paid at tlie rato of Its. I *50 a clay at tho materialtime (or, indood, at any time).
It seoins clear that tho learned magistrate's findings tliat tho threewomen witnesses worked, or wore present at tho mill for work, during tlieperiod specified in tho chargo and tliat in rospeet of that period tlioy weropaid wages at loss than the minimum rato wore based mainly upon thodocument P13, which was improperly admitted in evidence. It wascontended by tho learned crown counsel that ovon so the conviction shouldho affirmed on tho ground that under section 42 of tho Ordinance thoburden was on tho appellant to prove tliat- he had paid those worker* wagesin accordance with tho provisions of section 21. I am imablo to accept1his contention. What section 42 provides Is that
on tho prosecution of any omplovcr under sub-section (l) or sub-section (2) of soction 39 for tho failure to mako any paymont to anyworker, the burden of proving that tho paymont was made shall lieon the employer.
But an issue as to whether the employer has failed to make any partic-ular payment to tho workor can ariso only when it has boon provod thatho had become liable to make that payment. The evidence that hasbeen properly admitted at tho trial is insufficient to prove that any of thoworkers mentioned in tho charge had bocomo ontitlcd to paymont ofwagos in respect of tho period 22nd to 28th November, 1953. Therewas therefore no burden on the appellant to prove that he had paid thornin respect- of that period wages at not- less than the minimum rate.
I set aside the conviction of tho appellant and the sentence passed onhim.
Conviction set aside.