Abeygoonesekera V. Sinnathamby

1951 Present: Nagalingam J.

ABEYGOONESEKERA, Appellant, and SINNATHAMBY, Respondent

S. C. 1,096-M. C. Colombo, 1,990/A

Wages Boards Ordinance, No. 27 of 1941-Section 58-Meaning of " trade "- Minimum wage-Employer and worker may be engaged in two different trades.

The accused was charged that he, " being an employer in a trade, to wit,. the motor transport trade", failed to pay the lorry driver employed by him the prescribed minimum wage. It was proved by the accused that he used the lorry as merely ancillary to his business of engineering and drainage-contractor.

Held, that in the circumstances the accused could not be said to be engaged in the motor transport trade and, therefore, could not be convicted under the charge preferred against him.

Semble, the accused could have been convicted if the charge against him. had been that he, being an employer of a worker in a trade, to wit, the motor transport trade, failed to pay such worker his minimum wage. The definition of " trade " in section 58 of the Wages Boards Ordinance includes the occupations or calling of a worker, irrespective of what the trade of the employer may be.

APPEAL from a judgment of the Magistrate's Court, Colombo.

M. M. Kumarakulasingham, for the accused appellant.

T. S. Fernando, Crown Counsel, with E. H. C. Jayetileke, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

February 23, 1951. NAGALINGAM J.-

The appellant in this case was charged with having failed to pay the minimum wage to a lorry driver employed by him and has been convicted and sentenced to pay a fine of Rs. 100.

In regard to the facts there is no dispute. The appellant is the manager of a firm known as " Samarakone Bros." Admittedly, the firm carries, on business as engineering and drainage contractors and for the purpose of its business owns a lorry which is exclusively used for the purpose of transporting goods and material in connection with the execution of the contracts undertaken by it. There is no suggestion that the lorry is used for transporting materials for third parties or that is hired out. It is also a matter of agreement between the parties that the lorry driver has not been paid the minimum wage payable as set out in the notification framed under the Wages Boards Ordinance, No. 27 of 1941.

The main contention raised on behalf of the appellant is that he was not engaged in the motor transport trade and therefore the notification prescribing inter alia the rate of wages payable to lorry drivers has no application to him. 1 do not think it can be said that the firm of Samarakone Bros is engaged in a transport trade, much less the motor transport trade. They do not carry on business as carriers of goods; they do not own a fleet of vehicles; they do not employ a number of lorry drivers. A private, owner having a lorry to transport, say, his

produce from his estate to his agents in Colombo for sale cannot be said to carry on a transport trade. The use of the lorry in such a case is merely ancillary to the sale of the produce grown on the estate. Similarly, Samarakone Bros, use their lorry as ancillary to their business of contractors and engineers and cannot be said to be engaged in the motor transport trade.

This view is supported by the reasoning in the case of Attorney-General v. Mayor, Aldermen and Burgesses of Portsmouth 1[ (1909) 100 L. T. 742.] cited by Counsel lor the appellant. I should like to refer to a passage in the judgment of Moulton L.J., where this identical question is discussed:

" I put to Mr. Levatt the parallel case of a carrier-that is to say, of a man carrying on works, who has his own horses and carts and delivers the goods he produces at the house of his customer and fetches the things he buys and brings them to his works. Is he carrying on the business of a carrier ? Mr. Levatt argued himself into such a belief in his case that he said ' Yes '. All I ca

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