Mambo Shoor Bar v. R. Crim. App. 926-D-70; 6/3/71; Onyiuke J.

Mambo Shoor Bar v. R. Crim. App. 926-D-70; 6/3/71; Onyiuke J.

            The appellant, Mambo Shoor Bar, was convicted of: (i) failing to prepare maintain and issue a copy of an oral contract of service c/s 35 of the Employment Ordinance Cap. 366 and (ii) failing to comply with the decision of a duly constituted Conciliation Board c/s 50(1) of the Security of Employment Act Cap. 574. The facts were that the appellant dismissed a bar maid who referred the matter to NUTA which in turn referred it to the Labour Office. The Senior Labour Officer convened the Reconciliation Board dare s salaam which decided that the dismissal was not justified and that it should be treated as a termination of employment under s. 24(1) (b) of the Security of Employment Act. It did not quantify the amount due to the complainant which had to be worked out under s. 24(2) (a) and s. 25(1) (b) of the Act. The appellant did not comply with the decision of the Board and the matter was referred to the District Court where the magistrate fined the appellant Shs. 300/- and ordered him to pay Shs. 170/- being salary in lieu of notice; Shs. 67/50 being in lieu of leave; Shs. 170/- being salary for March 1970; and Shs. 1,530/- being the amount underpaid for a period of October 1968 to February 1970.

                        Held: (1) “It is not very clear from the record or the proceedings how the matter was brought before the District Court. There are various ways by which a complaint by an employee in regard to the employer’s breach of a contract of service can be brought before the Court. Where a Reconciliation Board has determined the matter under s. 23 of the Security of Employment Act and has given a decision thereon the decision can be enforced in a Court of competent jurisdiction as if it were decree under s. 27(1) (c) of the said Act. The employer can be prosecuted for refusal or neglect to comply with the decision of the Board under s. 50(1) of the Act. If however the matter was not referred to the Board the employee can refer it to a Labour Office under s. 130 of the Employment Ordinance and the Labour Office can refer the matter to the Police under s. 131 of the Employment Act, if he thinks an offence has been committed by an employer or alternatively submit a written report to a magistrate setting out the facts of the case under s. 132 of the Employment Ordinance. On receipt of such report the magistrate shall where the facts appear to him to be such as may found a civil suit proceed to try the issues disclosed in the report as if the proceedings were a civil suit (s. 134)” (2) “Even if the matter were brought before the Court as a 

          Criminal case the magistrate has power under s. 134A of the Employment Ordinance to convert the criminal case to civil suit and do substantial justice to the parties without regard to technicalities.” (3) “In this case he charge was for offences under s. 35 of the Employment Ordinance and under s. 50 of the Security of employment Act respectively. The magistrate convicted and sentenced the appellant and then proceeded to enforce the decree of the Board. I doubt, without deciding the issue as it is not necessary in this case so to decide, whether the magistrate can concurrently exercise his civil and criminal jurisdiction in one and same proceedings as he did in this case.” (4) On Count 1 of the charge there appears to be a case of duplicity. “3 separate offences were lumped together in one count. Failure to prepare or maintain or issue a copy of an oral contract is each a separate offence. The charge as it stood must have gravely embarrassed the appellant. Furthermore there was not sufficient evidence to support the charge.” (5) “As to count 2 it appears from the proceedings that what the complainant was seeking was an enforcement of the decision of the Board. I think the interests of justice can best be served by treating this case as civil proceedings for the implementation of the Board’s decision under s. 27(1) (c) of the Act. This will require evidence to be led of the complainant’s entitlements under s. 24(2) (a) and s. 25 (1) (b) of the Security and Employment Act as the decision of the Board did not quantify the amount due to the complainant.” (5) Appeal allowed on both counts and the conviction and sentence are hereby set aside. The case is to be treated as a civil case for the implementation of the decision of the Reconciliation Board in Exhibit H. Evidence is to be led to determine the complainant’s entitlement under s. 24 (2) (a) and s. 25 (1) (b) of the Security of Employment Act Cap. 574.