033-NLR-NLR-V-29-RATAMAHATMAYA-v.-EULIN-PERERA.pdf
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1927.
Present: Sghneider *1.
EAT AM AH ATM AY A v. EULIN PERERA.
424:—P. G. Kegalla, 7,855.
Employment ofchildren—Industrialundertaking—Transportof
passengers by road—Ordinance No. G of 1923, $. 4 (a).
Where a boy was employed in a motor- omnibus to attractpassengers by announcing the destination of the bus.—
• Held, that it amounted to employment in an industrial undertakingwithin the meaning ofN section 4 (7) (a) of the Employininuof Young Persons and Children Ordinance, No. 0 of 1923.
^/^PPEAL from an acquittal by the Police Magistrate of Kegalla.
Ohcijcscl'crc, Deputy Solicitor-General, for respondent.
J. S. Jtujcictirdcue, for accused, appellant
September 26, 1927. -Schneider J.—
Tlii* is an appeal by the complainant with the sanction of theSolicitor-General against the acquittal of the ‘ accused-respondent.He was charged with having employed a “ child ” in an “ industrialundertaking,” viz., in the transport of passengers by road in anomnibus and with haying thereby committed an offence punishableunder section 4 (7) (a) of the Employment of Young Persons andChildren Ordinance, No. 6 of 1923. The “ child ** is a boy of 13years of age and therefore comes within the definition of “ child
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in the Ordinance. The evidence proved expressly or by implication
1927.
the following facts:—The respondent was the owner of the omnibus Schneider.
which carried passengers by road from one point to another. Th.e ^
services of the “child" were engaged by a person who is described Ratamahat-
as the “manager" of the omnibus in question. I think he would
0_,nl_,,Jbvun rerera
be more accuratelydescribedas the conductor. Ihedutyof tne
“ child " consisted in riding on the omnibus and in crying out, as
the omnibus plied along the road, the name of the place which was
its destination. He was paid a small sum of money per day. The
respondent did not either engage the “child" or pay him any
remuneration personally. But, I would regard the evidence as
proving that he is the person who employed the “child" within
the meaning of section 4 (7) (a) of the Ordinance, for the reason that
the manager or conductor must be assumed to have had the
authority of the respondent to engage persons who were necessary
to do the work done by the “child" and others for the purpose of
the undertaking, and that his acts in engaging and paying the
“child” were therefore the acts of the respondent. The Magistrate
accepted those to be the facts. The part of section 4 (7) (a) material
to this case is the following: —
“If any person employs a child in any industrial undertaking incontravention of this Ordinance, he shall be liable for each
offence, &c."
The employment of- the “child" if in an industrial undertakingwas in contravention of the provision in section 4 (1) of the Ordinancewhich forbids _a child to be employed in any industrial undertaking.
Section 2 of the Ordinance interprets “ industrial undertakingas having the meaning assigned thereto in the convention set out inPart 1 of the Schedule to the Ordinance. I need consider onlyPart I., Article I, (d) of the schedule. It enacts that the term“industrial undertaking" includes particularly transport ofpassengers .by road. The learned Magistrate held that what the“child" was employed for doing did not. consist in the transportof passengers.
The learned Deputy Solicitor-General who appeared in supportof the appeal submitted that the object of the legislation underconsideration was not only the physical health of'the child, but alsoits education in a school. The age limit of 14 years pointed to that,as that is the limit of age for compulsory education in a school.
Mr. Jayewardene submitted to the contrary that the sole objectwas the physical health of the child.
For the decision of this appeal, I do not think it necessary tospeculate what was the intention behind the legislation. TheOrdinance expressly states that the Ordinance – was intended to giveeffect to certain conventions of an international character which areto be found in the schedule to the Ordinance. The appeal only calls
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1927, for an application of the clear words of the Ordinance to a given setSchneider facts. The question for determination is whether the "child0was employed in an undertaking for the transport of passengers byRatomahat- road. In my opinion he was so employed. The transport of theEpassengers was effected by the omnibus. To run the omnibus forthat purpose a driver was essential, and it would appear that aconductor, presumably to collect the fares, &c., and a boy to attractthe passengers by announcing the destination, were necessary.These last two persons, I take it, were necessary for the successfulor profitable working of the undertaking. If the boy was notnecessary, it was not likely the manager or conductor would haveincurred the expense of employing him. It may well be that theservices of the boy were not essential for the conduct of the under-taking in the same sense as the services of the driver, but by thosewho ran the business he was regarded as a necessity, and theevidence is that he did take a part in the actual running of theomnibus and the transport of the passengers. If the boy had beenemployed as a clerk to keep the accounts of the undertaking, andinstead of having to travel on the omnibus he sat in some office andwrote out the accounts, I was asked whether, in that event, the boycould be regarded as employed in the transport of passengers byroad* That is not the question for my decision. I thereforeexpress no opinion about it. From what I have already stated itis apparent that the “child” was employed in the transport ofpassengers. I. therefore set aside the order of the Magistrate andconvict the respondent of the charge of having employed a “ child,”in an industrial undertaking in contravention of the Ordinance.The case is, I believe, the first of its kind. Though every person ispresumed to know the law the respondent had not the remotestidea that he was acting contrary to any law In employing the boy.His offence is therefore of a purely technical nature, and a nominalfine will meet the ends of justice.s
I sentence him to pay a fine of Re. 1, in default to undergo oneday's simple imprisonment.
Set aside.