R. v. V. B. Patel & Company (Mwanza) Ltd., Crim. App. 985-M-67, 11/4/68, Mustafa J.

R. v. V. B. Patel & Company (Mwanza) Ltd., Crim. App. 985-M-67, 11/4/68, Mustafa J.

This is an appeal by the Republic by was of case stated. Accused company was charged with failure to register with the National Provident Fund contrary to section 38 (1) (f) and Regulation 6 (made under section 48) of the National Provident Fund Act, Cap. 564, and with failure to pay a contribution due, contrary to s. 38(1)(d) of the Act. The agreed facts were that on Dilip Patel, who was in charge of the Mwanza shop of the company, signed a form stating that the firm has nine permanent employees and one temporary employee, and as a result of this information the firm was registered as a contributing employer. However, Mr. Patel later refused to complete the form regarding registrable employees on the ground that the temporary employee was a casual laborer and that the company therefore did not have ten registrable employees.

            Held: (1) Section 11 (1)(b) of the Act provides that the Minister may order that temporary employees be registrable as members of the fund, but there is no evidence that such an order has been made, and thus temporary employees are not registrable as members. (2) However, in determining whether a private employer has ten employees and is thus subject to the act, exempt and temporary employees shall be included; a distinction is made between the registration of the company itself and the registration of its individual employees.[Schedule to G. N. 566 of 1964, as amended by G. N. 39/68, sec. 2]. The company was thus subject to the act. (3) Although he was clerk, Patel was the only person found at Mwanza office and was in apparent control of the company, and his action in giving the information was binding on the company. The question whether the notification constituted conclusive proof of the information contained therein does not arise. (4) Although the company is guilty of failing to register its eligible employees, the duty to contribute to the fund arises only after such registration has been completed. Thus, the company is not guilty of the second count of failing to contribute. Appeal by republic allowed as to first count only and case returned with direction that there is case to answer on the first count.