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DISANAYAKA v. YATAWARA
NLR49V214
1948 Present: Basnayake J.
DISANAYAKA, Appellant, and YATAWARA, Respondent.
S. C. 116-C. E. Kandy, 2,477.
Public Servants
(Liabilities) Ordinance-Clerk employed by Sanitary Board-Is he entitled to
benefits of Ordinance?- Section 4.
A clerk employed by a Sanitary Board and paid out of its funds is not a public
servant within the meaning of the Public Servants (Liabilities) Ordinance.
APPEAL from a
judgment of the Commissioner of requests, Kandy.
H. W. Jayawardene, for plaintiff, appellant.
S. E. Wijayatilake, for defendant, respondent.
Cur. adv. vult.
March 17, 1948. BASNAYAKE J.-
The appellant instituted this action to recover a sum of Rs. 171.75 due to him
from the respondent on a promissory note dated March 31, 1941. The latter
pleaded that he was employed as a clerk in the Kadugannawa Urban Council and
claimed the benefit of the Public Servants (Liabilities) Ordinance.
The respondent first obtained employment as a temporary clerk in 1933, in the
Tea Control Department of the Kandy Kachcheri. In 1937 he was made a permanent
clerk in the Sanitary Board Department of the Kandy Kachcheri. He was paid by
the Sanitary Board out of the funds of the Sanitary Board. In January, 1945, he
was appointed a clerk in the Urban Council of Kadugannawa. He also stated that
when in Government service he was not a member of the Government Clerical
Service.
On this evidence the learned Commissioner of Requests held that he was entitled
to the benefits of the Public Servants (Liabilities) Ordinance. This appeal is
from that decision.
Counsel for the appellant submits that a clerk employed by the Sanitary Board
and paid out of its funds is not a public servant for the purposes
of the Public Servants (Liabilities) Ordinance and is therefore not entitled to
its benefits. In that Ordinance (Section 4) the expression public servant means
a person employed in the service of the Government of the Island, or of any
Municipal Council or District Council, or Local Board, or of any provincial or
District Committee established under the Thoroughfares Ordinance. It should be
observed that a person employed in a Sanitary Board docs not come within its
ambit. Neither the Small Towns Sanitary Ordinance nor the Public Servants
(Liabilities) Ordinance contains any indication as to the reason for the
exclusion of the officers and servants of a Sanitary Board from the benefits of
the latter Ordinance. A Sanitary Board is a local authority like any other with
full power to manage its own affairs, to levy rates, to establish and maintain
public services, to provide public amenities, to employ and pay its officers and
servants, and to make all necessary disbursements out of its fund. Be that as it
may a person employed in the service of a Sanitary Board cannot claim the
benefits of the Public Servants (Liabilities) Ordinance unless he can at the
same time bring himself within any of the classes of employees enumerated in the
definition of Public Servant in that Ordinance. The respondent clearly was not a
public servant in 1941, the year in which he contracted the liability that the
appellant seeks to enforce.
I allow the appeal with costs and send the case back for the determination of
the appellant's claim.
Appeal allowed.
