M. D. S. RATNAWEERA (Labour Officer), Appellant, and M. D. W. GOONETILLEKE, Resp

019-NLR-NLR-V-65-M.-D.-S.-RATNAWEERA-Labour-Officer-Appellant-and-M.-D.-W.-GOONETILLEKE-Resp.pdf


Ratnaweera v. Goonetidelce
89
Present: Tambiah, J.
M. D. S. RATNAWEERA (Labour Officer), Appellant, andM. D. W. GOONETILLEKE, Respondent
S. G. 673/62—M. 0., Colombo, 16,216/A
Employees’ Provident Fund Act, No. 15 of 1958—Sections 8 (1), 8 (2) (6) (ii), 10 (1),15, 34 (a), 37, 47—Covered employment—Contributions to Fund—Computa-tion—Meaning of phrase “ each month during which he works
Where an employer in a covered employment within the meaning of section8 (1) of the Employees’ Provident Fund Act employed three persons for themonths of November and December, 1959, and the employees did not work forthe full month of December but only for a part of it—
Held, that the employer was liable, under section 15, read with section 10 (1),of the Act, to pay to the Employees’ Provident Fund contributions of theemployees for the month of December even though tbe employees did not workfor tbe full month.
“ The provisions of section 10 (1) of the Act axe clearly meant to apply toemployments which have been declared as * covered employments ’ by Regula-tion, whether on a monthly basis or on a daily basis, provided the employeein question works during the course of the month, unless, by a regulation, theemployment by the day or by the journey is specifically excluded from theoperation of the Act in terms of section 8 (2) (b) (ii). ”
TAMBIAH, J.—RatsiavMra v. GooneUUeke,
.ApPEAL from a judgment of the Magistrate’s Court, Colombo,
S. A. PuR&iayegum, Crowa Counsel, for the Solicitor-General.
W.8. 8. Jayawardena. with Vernon Martyn, for the accused-respondent.
Cur. adv. vuli.
November 1, 1962. Tambiah, J.—
This is an appeal with the sanction of the Solicitor-General from anorder of acquittal of the accused-respondent. The accused-respondentwas charged in the Magistrate’s Court of Colombo with the followingoffences :—
Being the employer of one K. Prakasa Nadar, a person to whom theEmployees Provident Fund Act, No. 15 of 1958, applied, failed to pay inColombo before the last day of January, 1960, to the Employees Provi-dent Fund contributions of the said employee for the month of December,1959, in contravention of Section 15 of the said Act. an offence punishableunder section 34 (o) read with section 37 of the said Act.
Being the employer of one M. M. Anthony Nadar, a person to whomthe Employees Provident Fund Act, No. 15 of 1958, applied, failed to payin Colombo before the last day of January, 1960, to the Employees Provi-dent Fund contributions of the said employee for the month of December,1959, in contravention of section 15 of the said Act. an offence punishableunder section 34 (a) read with section 37 of the said Act.
Being the employer of one Gnanaprakasa Nadar, a person to whomthe Employees Provident Fund Act, No. 15 of 1958, applied, failed to pay inColombo before the last day of January, 1960, to the Employees ProvidentFund the contrib utions of the said employee for the month of December,1959, in contravention of section 34 (a) read with section 37 of the said Act.
At the trial, the prosecution established the following facts :—
the accused-respondent was an employer in a covered employment
within the meaning of section 8 (1) of the Employees’ ProvidentFund Act, No. 15 of 1958, read with Regulation 2 (1) (a) of theEmployees Provident Fund Regulation published in GovernmentGazette No. 11,573 of 31st October, 1958 ;
the accused-respondent employed, inter alia, three persons, namely,
K. Prakasa Nadar, M. M. Anthony Nadar and GnapraltasaNadar, for the months of November and December, 1959 ;
(o)the three employees, referred to above, did not work for the fullmonth of December, 1959, but only for a port of it.
TAMBIAH, J.—Rainaweera v. GooneMleke
9T
At the close of the case for the prosecution, the accused-respondent,■when called for the defence, did not choose to give evidence. Counselappearing for the accused submitted, as a question of law, that the three•employees have not worked for the full month of December, 1959, andthat there was no liability. The learned Magistrate accepted the sub-emission made by the defence and held, inter alia, that “ the prosecutionmust prove that he (the employee) was employed for the entire periodof that month to make the accused liable to contribute The inter-pretation placed by the learned Magistrate on section 10 (1) of theEmployees Provident Fund Act, No. 15 of 1958, is canvassed beforethis Court.
The scheme of the Employees Provident Fund Act, No. 15 of 1958,is to provide for the establishment of an Employees Provident Fund towhich both the employee, as well as the employer, should contributecertain percentages of the wages earned by the employees, during amonth, to the Employees Provident Fund. In certain types of employmentit provides for the employees to draw the sums that are lying to their creditin the Fund in certain contingencies.
Section 10 (1) of the Act reads as follows : “ Subject to the provisions ofsub-section 3 of this section under section 27, the employee to whom thisAct applies, shall, in respect of each month during which he works in acovered employment, be liable to pay to the Fund a contribution of anamount equal to four per cent, of his total earnings from the employmentduring that month ”. Section 15 of the Act imposes an obligation on the■employer to deduct and pay to the Fund the contribution for each month•of such employee.
Mr. Pullenayegum, who appeared for the appellant, contended thatthe phrase “ during each month ” must be interpreted as in the course ofeach month. Counsel for the respondent submitted that section 10 (1) (a)imposes a liability only on an employee who is employed od a monthlybasis.
A careful perusal of the relevant sections of the Act shows that thephrase “ during the month ” should be interpreted to mean in the courseof the month. If section 10 (1) of the Act was intended to apply only tomonthly employees then the statute would have said so in express words“ Earnings ” are defined in the Act to mean “ (a) Basic wages or salary ;(6) Cost of Living Allowance, Special Living Allowance and otherAllowances; and (c) Payment in respect of holidays ”. (vide Section 47.)
The phrase “ during the month ”, in this context, cannot be interpretedto mean " during every day of the month ” for the reason that a liabilityhas been imposed on the employer to pay the employees in respect of theholidays also. Section 8 (2) (6) (ii) states that Begulations may be made“ to treat as not being a covered employment or to disregard employment
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TAMBLAK, J.—Satnatomra v. QoonstOUke
which is usually performed, by the day aec by the job or by the journey *It follows, therefore, that if such wgahtfons we not made, even
c< employment by the day or by the job or by the journey51 will be regarded,as “ covered employment ” provided it comes within the categoryof employment set out in any regulation as “ covered employment ”,
The term “ employer 55 has been widely defined in the said Act as any
person who on bis own behalf employs, or any person on whose behalfany other person employs, or any person on behalf of any other personemploys any person in a covered employment ” (vide section 47). Theterm ” employee ”, therefore, would mean any person who is employedby such an employer; it includes “ any apprentice or a learner who ispaid a remuneration ” (Ibid.) It is, therefore, clear that the provisionsof section 10 (1) of the said Act are clearly meant to apply to employ-ments which have been declared as “ covered employments ” by Regu-lation, whether on a monthly basis or on a daily basis, provided theemployee in question works during the course of the month, unless, by aregulation, the employment by the day or by the journey is specificallyexcluded from the operation of the said Act in terms of section 8 (2) (6) (ii).In the instant case, no regulations exempting the type of employment inquestion from being a “ covered employment ” have been brought tomy notice.
The intention of the Legislature is to provide for an impecunious classof employees who are employed in certain types of trades. Any distinctionbetween the employee, who works in the course of such month and on amonthly basis, would be invidious and not warranted by the scheme ofthe Act, in the absence of any specific regulation. The interpretationplaced by counsel for the respondent on section 10 (1) of the Act woulddeny to a class of people the benefits which the Legislature intended toconfer on them.
For these reasons, I am of the view that the learned judge hasmisdirected himself in law in interpreting section 10 (1) and acquittingthe accused. The charges against the accused have been proved. I setaside the order of acquittal and convict the accused on all the countsand sentence him to pay a fine of Rs. 10 on each count and, in additionto the fine, he will also pay into the Fund the sum that he is obliged to payunder the provisions of the Act in respect of the three employees set outin the charge for the month of December, 1959. In default of payment ofthe fine and the sums he is obliged bo pay to the Fund, he will undergo &term of one month’s simple imprisonment.
Acquittal set aside.