075-NLR-NLR-V-46-LABROOY-S.-I.-POLICE-Appellant-and-AMERESEKERA-Respondent.pdf
Labrooy (8. 1. Police) and Anteresekera.
1945
218
Present: Rose J.
LABROOY (S. I. POLICE), Appellant, and AMERESEKERA,Respondent.
119—M. C. Colombo, 12,827.
Defence [Service Employees) Regulations, 1943, Regulation 2—Contract ofservice—Termination ■ of contract by a week's notice—Leaving servicewithout prior consent in writing.
The effect of Regulation 2 of the Defence (Service Employees) Regula-tions, 1942, is to prevent any employee of the Admiralty irrespectiveof the terms of his contract, from leaving his .employment without theprior written consent of the Captain Superintendent or any other officeracting under his authority. 1
1 32 N. L. R. 211.
214
BOSE J.—Labrooy {S. I. Police) and Ameresekera.
PPEAL against an acquittal by the Magistrate of Colombo.
H. W. R. Weerasooriya, C.C., for the complainant, appellant.
H. V. Perera, K.C. (with him J. L. M. Fernando and N. M. de Silva)for the accused, respondent.
Cur. adv. vult.
March 27, 1945. Bose J.—
In this case the respondent was acquitted by the Magistrate of anoffence contra the Defence (Service Employees) Regulations, 1942.It appears that on July 15, 1943, the -respondent signed a document,(exhibit P 1) which Mr. Weerasooriya, Crown Counsel, agrees should beregarded as a contract, in which there appears a provision that the Contractmay be terminated by either side on the giving of one week’s notice.At the foot of this contract appears an endorsement in the followingterms “ each entrant undertakes that he will be subject to the Defence(Service Employees) Regulations, 1942 ". In the Magistrate’s Court,however, the respondent stated that this endorsement which is type-written whereas the remainder of the contract was printed, did not appearon the document at the date of signature. The .Magistrate acceptedthis contention and the case was therefore argued before me- on the footingthat no such endorsement was present.
An issue of fact arose in the trial court as to whether a week’s noticewas in fact given. For the purposes of this appeal, I am of opinion that I ambound by the Magistrate’s – finding that the respondent in fact gave twoweeks’ notice and that therefore he would seem to have complied withthe term of his contract as to notice.
The relevant part of Regulation 2 of the Defence (Service Employees)Regulations, 1942, reads as follows:—“ No person who, on or after thedate on which these regulations are published in the Gazette, is employedby the Admiralty …. in any capacity in Ceylon shall leavesuch employment …. without prior consentobtained in
writing …. from the Captain Superintendent, Ceylon, or anyother officer acting under his authority ”. It is common ground thatno such prior consent was obtained by the respondent.
Mr. H. V. Perera for the respondent contends, in the first place thatthe charge was defective in that it did not disclose an offence. It istrue that the charge is wrongly drafted but in my opinion this pointcannot be sustained in view of section 171 of the Criminal ProcedureCode (Cap. 16). The substantial point of Mr. Perera’s argument wasthat by the wording of the regulation itself it is necessary that at thetime of the leaving of employment the. person in question must have beenemployed by the Admiralty. In the present case it is contended that therespondent was not employed at the date of his leaving (j. e., April 1, 1944)in that the effect of his two weeks’ notice which was in accordance withthe express 'terms of his contract, was that he ceased to be in theemployment of the Admiralty at midnight on March 31, 1944, which wasthe time when the period of his notice expired.
BOSE J.—Miss Thomas i. Bawa.
216
On the face of it this argument would seem to be logically correct,but learned Crown Counsel relies—and it seems to me correctly—onRegulation 3 of the above Regulations which reads as follows:—“ Forthe purposes of those regulations a person shall be deemed to be employedby the Admiralty …. if the name of that person appears inany salary book, pay book or muster book kept for the purposes ofany Naval …. establishment in Ceylon ”. Having regardto that, it seems to me, that it is not open to me to hold otherwise thanthat it is the intention of the legislature which is adequately implementedby the language of the regulations, to prevent any employee of theAdmiralty, irrespective of the terms of his contract, from leaving hisemployment without prior written consent. That- being so, I am ofopinion that the appeal must be allowed, the judgment of the Magistrateset aside and the respondent convicted of the offence with which he ischarged.
I would add that learned Crown Counsel himself stated that this casewas only regarded as of importance in view of the legal issue involved.On the merits it would seem to be unfortunate that this particularrespondent should have been put to such inconvenience.
Having regard to the circumstances of the case, I am of opinion that apurely nominal penalty will suffice and I therefore impose a fine; of Re. 1in default one day's simple imprisonment.
Appeal allowed.