Muttucarpen Chettiar Et Al., V. Velupillai

1938 Present: Hearne and Keuneman JJ. and Wijeyewardene A. J.

MUTTUCARPEN CHETTIAR et al. v. VELUPILLAI

61-D. C. Kegalla, 97.

Public Servants' (Liabilities) Ordinance-Promissory note given by an unregistered overseer in Public Works Department-Public servant at the time note was given-Public Servants'  (Liabilities) Ordinance, 1899, s. 3 (3).

An unregistered sub-overseer employed in the Public Works Department is a public servant within the meaning of the Public Servants' (Liabilities) Ordinance.

Weerasinghe v. Wanigasinghe (34 N. L. R. 185) followed.

Held, further (KEUNEMAN J. dissentiente), the words of section 3, subsection (3), that it ?does not apply to a liability contracted by a person prior to the date when he became a public servant? mean a liability contracted by a person at a time when he was not a public servant.

THIS was an action against the defendant on a promissory note made by him in April, 1930. The defendant was employed as an unregistered sub-overseer in the Public Works Department from 1926 to 1933 when he was discontinued owing to the policy of retrenchment. He was re-employed in June, 1935, and continued to be so employed at the time of this action. The case was referred to a Bench of three Judges on the following questions : -

(1) Is an unregistered sub-overseer a public servant within the meaning of the Public Servants' (Liabilities) Ordinance?

(2) Is the defendant debarred from claiming the benefit of the Ordinance by reason of the fact that he was not a public servant from 1933: to 1935?

N. Nadarajah (with him D. W. Fernando and H. W. Thambiah), for plaintiffs, appellants. -The first question to . be considered is whether . an unregistered overseer, employed temporarily and paid daily, is a public servant. Section 2 of Ordinance No. 2 of 1899 defines the expression ?public servant". Section 3 enumerates the various forms of contract in respect of which no action can be maintained against a public servant. The present action comes under section 3 (1) (c). It is necessary to examine section 3 (2). It speaks of a ?fixed appointment". The evidence of the District Engineer refers to the terms of employment of the defendant.

Unfortunately, no, but the evidence of the District Engineer is clear. A similar case came up for consideration in Weerasinghe v. Wanigasinghe 1

[KEUNEMAN J. -This decision takes away the point about ?fixed appointment". Section 2 is wide. According to it, a public servant means a person employed in the service of the Government.]

[HEARNE J. -That is the point-service is sufficient. Conditions and incidents will not matter much.]

It has been held, however, that a person, employed as a tide-waiter at the Customs, is not a public servant-Palaniappa Chetty v. Fernando et al. 2 Wood Kenton J. held in Grigoris v. The Locomotive Superintendent 3 that a mechanic employed on daily wages in the Government Railway is not a public servant.

Wood Renton J. has emphasised the requirement of a fixed appointment in Perera v. Perera et al 4 It is essential that a person should have a fixed appointment, although he may not receive a regular salary. Further, there is the case of Jayasinghe v. Jayatileke 5, where Dalton J. held that a registrar of births, deaths and marriages is not a public servant. If the tests of permanence of employment and continuity of work, which Dalton J. emphasised, are applied, the defendant must fail. The position of an unregistered overseer would seem to rest on job-work. Thirunayake v. Thirunayake 6 is another case in point.

To interpret section 2, apart from opinions expressed in decided cases, section 3 (2) sets out clearly the requisites, viz., salary and fixed appointment

1 34 N. L. R. 185 .
2 (1905) 1 A. C. R. 27
3 (1912) 15 N. L. R. 117
4 (1910) 13 N. L. R. 257
5 (1933) 35 N. L. R. 369
6 (1937) 39 N. L. R. 35.

[KEUNEMAN J. -Would not an officer on pro

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