$. Shafeedeen v. The Sri Lanka State Plantations Corporation
OFFICER-IN-CHARGE, MINOR COMPLAINTS SECTION,POLICE STATION, WATTALA.
COURT OF APPEAL.
H. W. SENANAYAKE, J.
C.A. APPLICATION NO. 424/93.
M.C. WATTALA NO. 272/B.
Children and Young Persons Ordinance – (Cap. 23) Section 35 – Committal tocertified school – Education Ordinance, sections 43 and 45 – Duty of parent -Magistrateis duty.
The child Sathasivam 13 years and 6 months old was working as a domesticservant in the household of Mr. & Mrs. J. N. Jayaweera and was produced inCourt on 8.4.93 under section 34 of the Children and Young Persons Ordinance.The Magistrate handed over the child to Jayaweera on 8.4.93 on Rs. 1000/-personal bail to attend Court on 20.4.93 with the petitioner SathasivamPerimbarajah. They attended Court on this day but the Magistrate did notquestion the petitioner whether he could maintain the child Sathasivam but
Sri Lanka Law Reports
[1994J 2 Sri L.R.
instead ordered the child to be kept at the Children’s Home, Pannipitiya andcalled for a report from the Probation Officer on 27,4.93. Alter considering thereport but without making any inquiries from the petitioner, the Magistrate orderedthe child to be sent for a period of three years to the Certified School atMaggona..
In terms of section 43 of the Education Ordinance it is the duty of the parentto see that the child attends school till he reaches the age of 14 years.
Action was not taken to prosecute the parent under section 45(1) of theEducation Ordinance although the child had not been sent to school for the last 7years.
There was a duty cast on the Magistrate to make inquiries and find out fromthe petitioner whether he was in a position to maintain the child Sathasivam. Thechild had not committed any offence; there was no evidence to indicate he hadfallen into bad association or was exposed to moral danger or that he wasbeyond control. It was the duty of the Magistrate to find out whether the parentwas fit to exercise care or was not exercising proper care over the child. This wasa breach of the principles of natural justice.
The order made by the Magistrate was harsh as there was no offencecommitted by the child. The Magistrate should have acted under section 35(1) (c)of the Children and Young Persons Ordinance.
APPLICATION for revision of the order of the Magistrate of Wattala.
B. Rajapakse with Y. Kodituwakku for petitioner.
M. I. Hadi S.C. for complainant-respondent and as amicus curia.
Cur. adv. vult.
H. W. SENANAYAKE, J.
This is an application to revise an order made by the LearnedMagistrate on 27.4.93 where he had ordered the petitioner's eldestchild Sathasivam to be placed under section 35 of Children andYoung Persons Ordinance to be sent to the Certified School inMaggona for a period of three years.
Briefly the facts relevant to this application were that Sathasivamwho was thirteen years and six months old was found allegedly to beworking as a domestic servant in the household of Mr. and Mrs. J. N.Jayaweera of No. 11, Kuda Edanda Road, Wattala and wasproduced by the O.l.C. on 8.4.93 in terms of section 34 of the
Perimbarajah v. Officer in Charge, Minor
Complaints Section. Police Station. Wattala (H. W Senanayake, J )
Children and. Young Persons Ordinance. The Learned Magistrate on8.4.93 handed over the child to the said Jayaweera on a thousandrupees personal bail and had informed Jayaweera to come to Courton 20.4.93 with the petitioner. On 20.4.93 the Petitioner was present.The Learned Magistrate had not questioned the Petitioner whether hewas able to maintain or look after the child Sathasivam but on thatdate he had ordered the child to be kept till 27.4.93 in the ChildrensHome, Pannipitiya and he had also called for a probation report fromthe Probation Officer on 27.4.93. After considering the probationofficer's report without making inquiries from the petitioner hadordered the child to be sent tor a period of three years to the CertifiedSchool of Maggona.
The State Counsel conceded that there was no prohibition in law toa young person being employed as a domestic servant. Section34(1) (a) reads as follows: "A child or young person, who, having noparent or guardian or a parent or a guardian unfit to exercise careand guardianship or not exercising proper care and guardianship, iseither falling into bad association, or exposed to moral danger orbeyond control or (b) child or young person (who falls within i, ii, iii,iv) requires protection”. The child Sathasivam does not fall within34(1) (b) of the said section nor could one say that he had been keptas a domestic with the Jayaweera's as he was falling into badassociation or exposed to moral danger or beyond control.According to the Interpretation Ordinance, section 38, “child” meansa person of under 14 years.
The Education Ordinance (Chapter 381), section 43 reads asfollows “Where a parent of a child not less than 5 and not more than14 years is resident on an estate he shall cause the child to attend aschool. Section 45(1) deals with the penal provision to punish aparent who contravenes the provisions of section 43”. In terms of thissection it is the duty of the parent to see that the child attends schooltill he reaches the age of 14 years. According to the probation reportfiled in this case the child Sathasivam had only attended school for aperiod less than 1 year and thereafter he had not attended school buthas been playing cricket which has now become a national pastimeand quarrelling with the neighbours' children, but no action had been
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taken by the Education Department or its Officers to enforce andprosecute the parent under section 45(1) of the EducationOrdinance. According to the report filed by the probation officer thechild Sathasivam has not attended school for the last 7 years. Therewas a duty cast on the Magistrate to make inquiries and to find outfrom the petitioner whether he was in a position to maintain the childSathasivam. The child has not committed any offence; there was noevidence to indicate he had fallen into bad association or wasexposed to moral danger or that he was beyond control; therefore itwas the duty of the Learned Magistrate to find out whether the parentwas fit to exercise care or was not exercising proper care. In my viewthis was a breach of the principles of natural justice. The petitionerwas present in Court and he was represented by an attorney-at-lawbut the record does not show if any question been asked from thepetitioner about his ability to exercise proper care.
In my view the order made by the Learned Magistrate on 27.4.93was harsh as there was no offence committed by the childSathasivam. The document C filed in Court established that thepetitioner is in receipt of Rs. 2850/- a month. According to theprobation report filed by the probation officer the gross income of thefamily was Rs. 2800/-; it is true no doubt that with the present cost ofliving the parent would find it difficult to give the children the best ofthings but that does not mean that they cannot supply the basicneeds and care for the children. Employing a person under 14 yearsis not an offence if he is looked after and given proper care. Theparent would be contravening section 43 of the Education Ordinanceand not the person who keeps the child as a domestic servant.
I quash the order of the Learned Magistrate and direct theMagistrate to act under section 35(1) (C). The child Sathasivamwould be reaching 14 years according to document A on 23September this year.
I direct the Registrar of the Court of Appeal to issue a certifiedcopy of this order on payment of usual charges to the Petitioner.
Magistrate’s order quashed.