Jayasinghe v. Jayatileke.
1933Present; Dalton A.CJ. and Poyser J.
JAYASINGHE v. JAYATILEKE.
107—D. C. Colombo, 40,518.
Public Servants' (Liabilities) Ordinance—Registrar of Births, Deaths, andMarriages—Is he a public servant ?—Ordinance No, 2 of 1899, s. 2,
A registrar of births, deaths, and marriages is not a public servantwithin the mining of section 2 of the Public Servants’ (Liabilities) Ordi-nance. No. 2 of 1899.
HE plaintiff sued the defendant to recover the sum of Rs. 1,000 andinterest due on a usufructuary mortgage. The defendant admitted
that the sum was due but claimed in reconvention the sum of Rs. 1,250 fordamages caused by plaintiff’s neglect of the mortgaged premises. Judg-ment was given for the plaintiff, the defendant's claim being dismissedwith costs. When plaintiff took out writ and seized certain property inexecution the defendant claimed the benefit of the Public Servants’(Liabilities) Ordinance. He set out in his petition that he was registrarof births, deaths, and marriages. The learned District Judge held thatthe defendant was a public servant within the meaning of the Ordinance.
Hayley, K.C. (with him Canjemanaden), for plaintiff, appellant.—Aregistrar of births, deaths, and marriages cannot claim the benefit of thePublic Servants' (Liabilities) Ordinance. That Ordinance was enacted toprotect a certain class of public servants, viz., those employed in thepermanent service of the Colonoy. Section 3 enumerates the immunitiesand the conditions governing them. Sub-section (2) of section 3 statesthat public servants who are in the receipt of a salary of more than Rs. 300per mensem are not exempt from liability. The salary must be in respectof a fixed appointment. It is submitted that only those holding fixedappointments are entitled to the benefits which the Ordinance provides.What is a “’fixed” appointment would depend on the appointing author-ity and on the servants' right to receive a pension or gratuity atretirement (Perera v. Perera et aV, Palaniappa Chetty v. Fernando'). Aregistrar of births and deaths is appointed by the Registrar-Generalunder the Registration of Births and Deaths Ordinance, No. 1 of 1895,and he could be dismissed by the Registrar-General without any referenceto die Head of the Government. His duties indicate that his job is nota whole-time one, and if he be a non-medical registrar, he is not deemedto be a public servant within the meaning of section 19 of the Penal Code(vide section 7 (2) of Ordinance No. 1 of 1895). Saibo v. Punchirala8 willnot apply to the circumstances of this case. In that case it was held byDe Sampayo J. that an arachchi and police headman is a public servantwithin die meaning of the Ordinance. But an arachchi and a policeheadman is a public servant under section 19 of the Penal Code. His isa fixed appointment and it is pensionable. He' performs duties which* 18 N. L. R. 957.2 2 A C. R. 27.
a 18 N. L. R. 24$.
370DALTON A.C.J.—Jayasinghe v. Jayatileke.
require undivided attention. They do not bear the casual characterwhich the work of a registrar of births and deaths bears. The test seemsto be whether the appointment calls for continuous work (Weerasinghe v.Wanigasinghe1).
H. V. Perera, for defendant, respondent.—“ Public servant ” is definedin section 2 of the Ordinance as a person who is employed in the serviceof the Government of the Colony. It is wide enough to include a registrarof births, deaths, and marriages. He performs work for which he is paidand he actively assists the Registrar-General in the administration of aGovernment department. He has to be in his office every day and hiswork is continuous. See section 11 of Ordinance No. 1 of 1895. TheOrdinance was enacted not so much to protect the public servant as toprotect public administration. (Weerasinghe v. Wanigasinghe (supra).) Ifregistrars of births, deaths, and marriages are not to come within theprivileged class, it would injuriously affect public business. Their workis on a par with the work of an arachchi or police headman. That they arenot public servants under the Public Servants’ (Liabilities) Ordinance doesnot necessarily follow from the fact that they are not public servantsunder section 19 of the Penal Code.
Hayley, K.C. in reply.—The appointment of a registrar of births anddeaths is governed by section 7 of Ordinance No. 1 of 1895, and theappointment of a registrar of marriages, other than Kandyan and Muham-madan, by Ordinance No. 19 of 1907. In either case it is the Registrar-General that is the appointing authority. Under the MuhammadanMarriage Registration Ordinance, No. 8 of 1886, any “ lewai ” could beappointed a registrar of Muhammadan Marriages and if respondents’contention is right, he could be deemed to be a public servant within themeaning of the Public Servants’ (Liabilities) Ordinance.
Cur. adv. vult.
November 10, 1933. Dalton A.C.J.—
The question for decision on this appeal is whether a registrar of births,deaths, and marriages is a public servant within the meaning of the PublicServants* ‘(Liabilities) Ordinance, No. 2 of 1899. That Ordinance isenacted for the purpose of protecting public servants from legal proceed-ings in respect of certain liabilities.
The respondent to this appeal was sued by the plaintiff (appellant) torecover the sum of Rs. 1,000 due on a usufructuary mortgage bond, withinterest. In his answer he admitted the execution of the bond and thereceipt of the money thereon but claimed in reconvention the sum ofRs. 1,250 for damages as a result of plaintiff’s alleged neglect of themortgaged premises.
Judgment was given for plaintiff for the amount claimed, the trialJudge finding that defendant suffered no damages. Plaintiff duly tookout writ, and' certain property besides the mortgaged property wasseized, when, for the first time, respondent claimed the benefit of thePublic Servants’ (Liabilities) Ordinance. He petitioned that the writ berecalled and that he be discharged from the action. He set out in his
1 34 N. h. R. 185
DALTON A.C.J.—Jayasinghe v. Jayatileke.371
petition, which was supported by affidavit, that he was registrar of births,deaths, and marriages at Kahatuduwa in the Udugaha pattu of Salpitikorale.
On this petition, without further evidence, the trial Judge held peti-tioner (respondent to appeal) was a public servant within the meaning ofthe Ordinance. From this order plaintiff appeals.
The onus was on the defendant to establish that he was entitled to thebenefit he claims. The only fact he proved was that he was registrar ofbirths, deaths, and marriages at the place he named. For other materialwe were referred to the provisions of the Ordinances under which theappointments are made.
The appointment and work of a registrar of births and deaths is gov-erned by Ordinance No. 1 of 1895. He is appointed and can be removed atpleasure by the Registrar-General, is required to attend at his office inhis division oh such days and hours as the Registrar-General appoints,and is paid for such work as he does by fees. Section 7 (2) provides thatif any medical practitioner is appointed a registrar of births and deaths,he shall, during such employment be deemed to be a “ public servant ”within the meaning of section 19 of the Ceylon Penal Code. In view ofthis special provision it seems that a registrar who is not a medicalpractitioner is not a public servant within the meaning of section 19 of thePenal Code; otherwise section 7 (2) would be unnecessary. There are,however, persons who are public servants within the meaning of section 19,such as jurymen or arbitrators who clearly are not public servants underthe provisions of Ordinance -No. 2 of 1899.
The appointment of registrars of marriages, other than the marriagesof Kandyans and Muhammadans, is governed by Ordinance No. 19 of 1907.These appointments are also made by the Registrar-General, during hispleasure, and payment is by fees. Under the Muhammadan MarriageRegistration Ordinance, 1886, any Muhammadan lewai may be appointeda registrar of marriages, and if the trial Judge is correct, would be a publicservant within the meaning of Ordinance No. 2 of 1899.
To obtain the benefits of and come within the provisions of the latterOrdinance, a person must bring himself within the provisions of sections 2and 3 of the Ordinance. The respondent here urges he is “ a personemployed in the service of the Government of the Colony ” In constru-ing the word “ employed ”, however, it is not always easy to see what testhas to be applied. It has been held for instance that a person who worksfor a daily wage, such as a tide-waiter at the Customs, a railway depart-ment labourer or a public works labourer, although they are certainlyemployed in the service of the Government and are paid out of Govern-ment funds, are not public servants within the meaning of the Ordinance(Palaniappa Chetty v. Fernando'). The test applied in that case, althoughthe tide-waiter in question had been at the Customs over 14 years, seemsto have been that such persons held no fixed appointment in the sense ofany permanency, but were employed by the day. It was also pointedout that they were not pensionable.
In Saibo v. Punchirala2 De Sampayo J. held that a person holding theoffice of arachchi and police headman was a public servant within theJUC R.S7.2 18 N. L. R. 249.
Tikiri Menika v. Lousa Aliens.
meaning of the Ordinance. There is no doubt of course (vide illustrations)that such an officer is a public servant under the provisions of section 19of the Penal Code, and in my opinion, if the tests of permanency of employ-ment, continuity of work, and volume of work as opposed to casualnessof work be applied, a police headman is in a very different position from aregistrar of births, deaths, and marriages. The work of the latter is doubt-less intermittent and occasional. It is very far from being what onewould term whole-time employment.
This test of continuity of work with the exclusive right of the Govern-ment to the services of the person concerned during the employment asopposed to casual or occasional work was stressed in the case of Weera-singhe u. Wanigasinghe in which case it was pointed out that the purportof the Ordinance was to prevent the obstruction of public business as aconsequence of legal proceedings against public servants. The respondent,in my opinion, fails to satisfy this test. He therefore has failed to showthat he is employed in the service of the Government of the Colony withinthe meaning of section 2 of Ordinance No. 2 of 1899. He is therefore notentitled to the benefits of the Ordinance and the appeal must be allowedwith costs.
Poyser J.—I agree.
JAYASINGHE v. JAYATILEKE