Roche and Iyer
1944Present: Soertsz J.
ROCHE et al.. Appellants, and IYER (Inspector of Police),
575-6—M. C. Colombo, 14,909.
Master and Servant—Liability of master for act of servant—Defence (Control ofPrices) Supplementary Provisions—Regulation 5.
A master is not liable under regulation 5 of the Defence (Control ofPrices) Supplementary Provisions for the act or default of a servantemployed in the course of business where the master proves that he hadno knowledge of the act or default and had taken such precautions as abusiness man may reasonably be expected to take.
But in the case of a prosecution under regulation 8 the default of asalesman employee involves the master in unqualified liability.
PPEAE from a conviction by the Magistrate of-Colombo.
H. V. Perera, K.C. (with him Nihal Gunasekera), for the appellant.Walter Jayawardene, G.C., for the respondent.
Cur. adv. vult.
KOERTSZ 3.—Roche and Iyer.
February 25, 1944. Soertsz J.—
These are appeals by the proprietor of a wholesale business in groceriesand condensed milk, and by a servant employed by him as a “ butter-cutter The first appellant occupies 89, Maliban street, as his place ofbusiness. He stores the greater part of his stock in a building on theopposite side bearing No. 108, Maliban street.
The charge preferred against the appellants was that on April 5, 1943,they refused to sell to one Thowfeek a case of condensed milk when herequested them to do so at 89, Maliban street. The charge was laidunder certain regulations of the Defence (Control of Prices) (Supple-mentary Provisions) which had been duly published in the GovernmentGazette No. 9,019 of October 8, 1942.
The Magistrate convicted both the appellants and sentenced the firstto pay a fine of Us. 5,000 and to undergo rigorous imprisonment for aperiod of two weeks; and the second to pay a fine of Its. 150-
The facts as found by the Magistrate which I accept as the facts uponwhich the appeals before me should be considered are these. At aboutnoon on this day Thowfeek went to 89, Maliban street. He found thesecond appellant the sole occupant of the room on the ground floor.The others appear to have been at lunch at the time. He asked thesecond appellant for condensed milk. The second appellant said “ Nomilk ”. Thowfeek went to the Office of the Price Controller, made acomplaint and came with Control Inspector, Pitch. The second appellantwas still in that room. Therewere two orthree othersaswell at that
time. Thowfeek repeated hisrequest andthe secondgave the same
reply. Inspector Pitch himself then demanded a case of milk and thesecond appellant said “ there is not a single tin of milk ”. Fitch thensignalled to a Police Sergeant who had accompanied them and had stoodoutside. Just then the first appellant probably attracted by the com-motion that must have been created by these parleys came down thestairs. He said he had about 200 cases in stock at 108, Maliban street.A visit to the stores showed that there were 394 easesinstock. It is
conceded that there was nomilk at allat 89, butitis contended
that when the second accused declared that there was no milkat all for sale, although he w-as speaking at No. 89, it amounted to arefusal to sell inasmuch as the customer could have been directed toNo. 108 where there was milk.
A number of questions arise upon this contention. When the secondappellant said there was no milk for sale did he know there was milkat No. 108 ? If he did was he within the law nevertheless because therewas no milk in 89 itself ? If he was not within the law for that reasonis he exculpated for the reason that Thowfeek addressed his request to aservant who was only a butter-cutter and had nothing to do with sales ?If the second appellant did not so exculpate himself is the first appellantalso liable as the master, the proprietor of the business ?
The Magistrate has answered the first . question in the affirmative.I will now consider what the consequences of that answer are in regardto the first appellant- The relevant regulation is that numbered 5.It runs as follows : —
“ Any person who acts in contravention of any orders .
shall be guilty of an offence …. If any person carrying on
SOERTSZ J.—Roche and Iyer.
business …. has in his possession for the purposes of tradea stock of such article (that is controlled article) and that person orany person employed by him in the course of the business, whenasked at those premises …. to sell any quantity of sucharticle or when asked whether he or his employer has such article forsale, refuses to sell …. or denies that his employer has -thearticle …. the person carrying .on the business •
shall be guilty of an offenceunless he proves that the aet
or default in respect of which he is charged was committed by someother person without his knowledge and that he had exercised all duediligence to prevent the commission of the act or defaultAlthough the grammatical structure of this section is extremely involved,themeaning issufficientlyclear. The master is madeliable for the
act ofdefault ofa servant employed in the course of thebusiness unless
he proves that he had no knowledge of the act or default and had takenproper precautions to prevent it.
In my opinion, the second appellant answers to the description of oneemployed in the course of the business carried cn at No. 89. The wordsare wide and cover all employees in the business carried on regardlessof the kind of work they actually perform.
There appeared to me, at first glance, to be some difficulty in view ofregulation 8 which says—
“ Where any person who is employed …. to sell articlesin thecourse ofany business …. isby reason of
anything done or omitted to be done at those premises convictedof theoffence ofcontravening any provision…. the
employer …. shall also be guilty of that offence
The question suggested itself to me whether in regulation 5 also itwas not an employee who was a salesman that was contemplated, butafter consideration I am of opinion that the two regulations serve differentpurposes. Regulation 5 makes the employer liable if any employee doescontravene the order by refusing to sell or by saying or indicating thatthe article is not available or by offering to sell on certain conditions,but so far as other contraventions are concerned only employees employedto sell can involve the employer in criminal responsibility.
I am, however, of the opinion that the kind of work a particular servantperforms may have a bearing on the question of scienter and due diligenceso far as the master is concerned. I am also of opinion that the secondappellant by his answer intended to make Thowfeek understand that hisemployer had no milk. I am not, however, satisfied on the evidencein the case that the second appellant was acting on instructions when hegave that reply. He probably chose to give, that reply as the one thatwould result in the least trouble to him. It saved him the trouble ofgoing to fetch his employer or a salesman or going to inform them thata customer was at the door. It would also save him the trouble of gettingthe milk across the road from the store. Admittedly the first appellantwas not present and did not know that the second appellant had giventhe reply he did give Thowfeek. The first appellant was at his lunch
Sahabandu and Ratnasabapathi.
upstairs. There was hardly any occasion for him to anticipate as probablethe arrival of a customer, during the luncheon interval, when accordingto him, the „doors giving entrance to the place of business were partiallyclosed, and at a time when the only occupant of the room on the groundfloor would be the butter-cutter, in order to make him take the precautionof informing the butter-cutter that if there were any inquiries for milklie or a salesman – should be informed, or the customer directed to thestores.
I am also inclined to the opinion, that the second accused took theview that, as there was no milk actually at No. 89, he was entitled to saythere was no milk. That is of course not a correct view but one can wellunderstand a man in the position of the second accused taking that view.
In all the circumstances of this ease, I am not satisfied that the chargeagainst the first appellant has been established beyond reasonabledoubt. I would set aside the conviction and acquit him. In all thecircumstances, I think the first appellant has made out a sufficient caseto show that he had no knowledge and had taken such precautions as abusinessman may reasonably be expected to take.
In regard to the second appellant, he is guilty according to the letterof the law, but there are extenuating circumstances as I have alreadyindicated. I would reduce his fine to Hs. 100 in default two weeks'"rigorous imprisonment.'
Conviction of 1st appellant set aside.Sentence on 2nd appellant reduced.
ROCHE et al., Appellants, and IYER (Inspector of Police) Respondent