Payan Bhai V. Gunathileke

 

1940     Present : Soertsz J.

 

PAYAN BHAI v. GUNATHILEKE

 

21-C. R. Colombo, 44,746.

 

Public Servants (Liabilities) Ordinance (Cap. 88)-Action against public servant-Retirement from service pending action-Right to plead the Ordinance.

 

A public servant, who was sued at a time when he was a public servant but who retired from service during the pendency of the action, is entitled to plead the benefit of the Ordinance.

 

THIS was an action on a promissory note against the defendant who was a public servant at the time he was sued.

 

At the date on which he pleaded the benefit of the Public Servants (Liabilities) Ordinance he had retired from the Public Service. The Commissioner of Requests dismissed the plaintiff's action.

 

N. Nadarajah, for plaintiff, appellant.-The previous decisions do not apply or can be distinguished.

 

In this case at the date on which defendant respondent took the plea under the Ordinance he had ceased to be a public servant.

 

Section 3 of the Public Servants , (Liabilities) Ordinance shows that the Ordinance did not contemplate a complaint by a party who had ceased to be a public servant.

 

Section 3 lays down the only means by which the existence of proceeding in contravention of the Ordinance may be brought before the Court, i.e., by a public servant or the head of his department. Here the defendant was not a public servant at the time of making complaint inasmuch as he had retired. The only remedy open to defendant was to apply by way of restitutio in integrum. Provision is made by the section for a complaint to a superior court.

 

O. L. de Kretser, for defendant, respondent.-Perera v. Perera1; Wijesinghe v. de Silva 2; Madawela v. Madawela 3; Samsudeen Bhai v. Gunawardene 4, are in point and in view of sections 2 and 3 of the Ordi­nance, the fact that the defendant had retired at the time he took the plea is immaterial. The sections must be read as a whole.

 

It is the duty of the Court to refuse to allow steps to be taken when the fact that defendant is a public servant comes to its notice and the section enacts only some of the means by which the fact is brought to the notice of the Court. Karuppen Chetty v. Harrisons & Crosfield, Ltd. 5

 

The reference to Supreme Court in the sections is to meet cases that the Supreme Court has to deal with in appeal.

 

Cur. adv. vult

Foot Notes : 
 

1 13 N. L. S. 257.
 2 2 C. W. K. 121.
36C.L. W. 94
4 37 N. L. R. 367.
524 N.L.R. 317.
 

 

July 5, 1940. SOERTSZ J.-

 

I have considered very carefully the submissions made to me by Counsel for the appellant in the c

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