Fiji National Provident Fund v. Chandra [1977] FJSC 150; Crim. Appeal 79 of 1977 (14 July 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction
Criminal Appeal No. 79 of 1977

BETWEEN

FIJI NATIONAI PROVIDENT FUND
(Appellant)

AND

SUBHAS CHANDRA s/o Binessari
(Respondent)

Mr. Ikbal Khan, Counsel for the Appellant
Mr. M.T. Khan, Counsel for the Respondent

JUDGMENT

It appears that the respondent in this appeal by the Crown is a transporter who employs labour.

He has in his employment some person who worked in the capacity of labourer and whom he failed to register with the National Provident Fund under the Fiji National Provident Fund Ordinance Cap. 191.

It follows us that he also failed to pay contributions to the Fund in respect of the said labourer.

In due course he was charged before a magistrate on both of the aforesaid offences and he pleaded guilty. He appeared before the magistrate on 29.6.76 and was fined $10.00 on each count and ordered to pay $7.50 as costs. In addition he was ordered to pay the arrears of unpaid contributions which a mounted to $72.00. He could not be said to have been dealt with in any way severely.

Following this prosecution the respondent was served with a notice requiring hire to pay a surcharge on the overdue subscriptions. The demand was made on 26th July, 1976 and the surcharge amounted to $26.00. Under Reg. 30(Cap.191 Regulations) the respondent had 14 days in which to pay the surcharge and failure to pay within the prescribed period of 14 days constitutes an offence under S.38(1)(f) of the Ordinance.

The respondent failed to pay the surcharge and he was duly charged before the same magistrate on 3/5/77 and he pleaded guilty to non-payment of the said surcharges.

The magistrate in ordering the respondent's absolute discharge under S.38(1) of Penal Code, appears to have taken the view that there was no need for these proceedings to have had the National Provident Fund proceeded in a logical way on 29.6.76 when the respondent had been convicted of the aforesaid offences of failing to register an employee and failing to pay
contributions. He said the amount of the surcharge, i.e. the $26.00, should have been mentioned to the court on 29.6.76 and the magistrate could then have ordered the respondent to pay the surcharge of $26.00 along with the arrears of $72.00.

The Crown has appealed against the magistrate's order on the ground that it is manifestly lenient or erroneous in principle, The National Provident Fund, if I may invest it with an identity, may have had some very good reason for not claiming the $26.00 at the time. S. 14 of Cap. 191 states that the surcharge shall be at the rate of 2% per month on each monthly subscription which is unpaid. Therefore the calculation of the total surcharge is somewhat involved because it is the sum of the charges due on each unpaid instalment each of which is necessarily different in amount from any other surcharge.

By Reg. 30, the sum due as surcharge must be demanded in writing and signed by the Manager or an authorised officer of the Fund. The National Provident Fund may have thought it inexpedient to serve such a notice until the outcome of the Court proceedings were known. If the respondent had been found not guilty such notice would have been a waste of time. If a different amount were found due the notice likewise would have been ineffective.

Of course the National Provident Fund may have been able to serve the demand for a surcharge prior to the court proceedings and had the respondent not paid it then there would have been three charges for the magistrate to consider on 29.6.76 instead of two. The third being the instant charge, provided always that the accused was found guilty of the substantive charges.

In all the circumstances I cannot accept that the National Provident Fund were necessarily inefficient or haphazard in not having demanded the $26.00 surcharge at the time of the proceedings. Under Reg.30 the demand cannot be oral and it must be signed by an authorised officer. Therefore there would be no point in the prosecutor informing the magistrate of the amount of the surcharge. The magistrate could not have ordered payment of the surcharge in the absence of a proper written demand.

On the facts the respondent received the notice for payment of the surcharge on 26.7.76. On 3/5/77 he still had not paid it. He admitted his guilt.

With the greatest of respect to the magistrate's views I consider that he assumed that the National Provident Fund should have made their demand in a different way. Had he desired, the magistrate could have asked them to explain whether or not it would not have been fairer and mare decent to have made some demand on 29.6.76. An explanation could have been on the lines I have indicated coupled with a submission that the magistrate could not have ordered the payment until an offence of failing to pay the surcharge had been established by evidence of a preceding written demand.

In those circumstances the magistrate was not justified in treating this as a prosecution which should not have arisen. Who is to know whether or not the respondent would have paid the
surcharge had it been demanded before 29.6.76? What is known in that he failed to pay it when it was properly and lawfully demanded.

I regard the magistrate’s order for a complete discharge to be erroneous in principle and with respect I set aside his order and impose a fine of $10.00 on the accused in its stead and I order him to pay $10.00 towards the cost of the proceedings here and in the court below.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
14th July, 1977.

Director of Public Prosecutions for the Appellant
M.T. Khan, Esquire for the Respondent

Date of Hearing: 14th July, 1977.