EMPLOYEES TRUST FUND BOARD v. SUBASINGHE

034-SLLR-SLLR-2007-V-1-EMPLOYEES-TRUST-FUND-BOARD-v.-SUBASINGHE.pdf


CA
Employees Trust Fund Board v Subasinghe
313
EMPLOYEES TRUST FUND BCv
SUBASINGHE
COURT OF APPEALWIMALACHANDRA, J.
BASNAYAKE, J.
CA(MC) 1/2007M.C. CHILAW 94331SEPTEMBER 25, 2007OCTOBER 12, 2007
Employees Trust Fund Act – 46 of 1980 – section 28 (1), section 28 (2),section 28 (3) – section 39, section 41 – Recovery in Magistrate's Court -Written sanction of the ETF Board necessary? When?
The question arose as to whether written sanction of the ETF Board isrequired when section 28 (3) is resorted to.
Held:
Section 28 lays down three methods of recovery. First methodis by way of summary procedure section 28(1). The Secondmethod is to file a certificate in the District Court to get a writexecuted – section 28(2). The Third method is to file a certificatein the Magistrate's Court – section 28(3).
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Written sanction of the Board is required only in the event ofinstituting proceedings under section 39. section 39 attractsprosecution and punishment. It deals with convictions. Sanction isrequired only in the event of prosecution. Section 28(3) is not withregard to prosecutions and convictions, therefore sanction of theBoard is not required.
In the matter of an application in Revision from an order of the Magistrate's
Court of Chilaw.
Dulinda Weerasuriya with H.M.A. Jayantha Kumar for appellant-petitioner.
Respondent absent and unrepresented.
Cur.adv.vult
October 23, 2007ERIC BASNAYAKE, J.
The applicant petitioner (applicant) filed a certificate in theMagistrate's Court of Chilaw under section 28(3) of the EmployeesTrust Fund Act No. 46 of 1980 (the Act) to recover a sum of Rs.8726.25 from the respondent-respondent (respondent). This sumwas on account of contributions payable to the Employees TrustFund (ETF) in respect of employees. At the inquiry a preliminaryobjection was taken on behalf of the respondent that this actioncannot proceed without the written sanction of the ETF Board. Thelearned Magistrate on 14.11,2006 upheld the preliminary objectionand stayed the case to enable the applicant to file the sanctionwithin a period of one month. The applicant is seeking to have thisorder revised.
Section 41 of the Act is as follows: – "No prosecution for anoffence under this Act shall be instituted except by or with thewritten sanction of the Board".
Section 39 of the Act identifies 3 offences. Section 39 is asfollows:-
Every person who-
contravenes or fails to comply with any of the provisionsof this Act or any regulations made there under; or
makes defaults in complying with any direction or ordermade or given under this Act; or
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Employees Trust Fund Board v Subasinghe
(Eric Basnavake. J.)
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knowingly furnishes or causes to be furnished any falsereturn, or information required to be furnished undersection 37 of this Act,
shall be guilty of an offence and shall on conviction before aMagistrate be liable to a fine not exceeding one thousands rupeesor to imprisonment of either description for a term not exceedingsix months, or to both such fine and imprisonment.
The question that has to be decided is whether the presentapplication, filed in terms of section 28(3) of the Act, is in respectof an offence committed and that the proceedings thus amounts toa prosecution (criminal). Section 28 deals with recoveries. Section28 lay down three methods of such recoveries. One method is byway of summary procedure (section 28(1)). The second method isto file a certificate in the District Court to get a writ executed (28
). The third method is to file a certificate in the Magistrate'sCourt (28 (3)). In that case the Magistrate shall issue notice on theemployer to show cause as to why he should not pay the amountappearing in the certificate. On failure to show cause the amountshall be deemed to be a fine imposed by a sentence for an offencepunishable with imprisonment.
The learned Counsel appearing for the applicant submittedthat steps could be taken to recover money due to the Fund fromthe defaulters under Section 28 or 39 of the Act.
Written sanction of the Board is required only in the event ofinstituting proceedings under Section 39. When proceedings areinstituted under Section 28(3) of the Act, no sanction is needed.The learned Counsel submitted that the object of section 28 is torecover dues and in the event the procedure followed in theDistrict Court is insufficient, a certificate could be filed in theMagistrate's Court which shall impose a default sentence. Thelearned Counsel submitted that the default payment is not a finebut deemed to be a fine for the purpose of attracting the provisionsof the Criminal Procedure Code. The purpose is to recoverpayment effectively.
The procedure laid down under section 39 appears to bemore stringent. The procedure under section 28(3) is simple. Itappears that the sole purpose of section 28(3) is effective recovery
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of dues. Section 28(3) is resorted to not for the purpose ofpunishing offenders. Section 28(3) does not deal with offences. Itis Section 39 that deals with offences. Section 39 attractsprosecution and punishment. It deals with convictions. Sanction isrequired only in the event of prosecution. Section 28(3) is not withregard to prosecutions and convictions. Therefore sanction of theBoard is not required when proceedings are instituted underSection 28(3) of the Act. The learned Magistrate has thereforeerred in upholding the objection on the question of sanctions. Theorder of the learned Magistrate dated 14.11.2006 is therefore setaside and the learned Magistrate is directed to proceed with theinquiry. The application is allowed without costs.
WIMALACHANDRA, J. – I agree.
Application allowed.
Magistrate directed to proceed with inquiry.