FERNANDO A.J.—Parangoden x>. Raman.
1936Present: Fernando A.J.
PARANGODEN v. RAMAN et al.
104—C. R. Colombo, 17,684
Public Servants' (Liabilities) Ordinance—Municipal employees—Plea of public
servant—Ordinance No. 2 of 1899, s. 2.
The defendants were Municipal employees in the regular service ofthe Municipal Council. They received their pay monthly, although itwas calculated on a daily rate. They were entitled to certain privilegesas regards sick leave and would receive a gratuity at the end of theirperiod of service.
Held, that they were public servants within the meaning of section 2of the Public Servants’ (Liabilities) Ordinance, No. 2 of 1899.
Where one of the defendants had terminated hisserviceafter the
institution of the action, he was entitled neverthelessto theprotection
of the Ordinance.
Perera v. Perera(13 N. L. R. 257)followed; Samsudeen v. Goonewardene(14 C. L. Rec. 195) referred to.
^^PPEAL from a judgment of the Commissioner of Requests, Colombo.
J. R. Jayawardene (with him Muttucumaru), for plaintiff, appellant.
Mackenzie Pereira, for defendant, respondent.
Cur. adv. vult.
September 15, 1936. Fernando A.J.—
This was an action filed by the plaintiff against the two defendantsonapromissory note, executed by them on March 10,1932.In their
answersthe defendants pleaded that the note was givenas security for
some money due to a cheetu club, and that the amount had been dulypaid.
Three issues were framed at the commencement of the trial, but afterthe first defendant had given evidence, Counsel for the defendants movedto raise the issue, whether the defendants were public servants, withinthe meaning of Ordinance No. 2 of 1899. The learned Commissionerof Requests dealt with all the issues, and held, that the note was givenfor money lent to the defendants, that there was no evidence of payment,and that the full amount claimed was due- He then went on to hold that
FERNANDO ’ A.J.—Parangoden v. Raman.
the defendants were public servants within the meaning of the Ordinanceand accordingly dismissed the plaintiff’s action. The plaintiff appealsfrom this order.
Counsel for the appellant cited a number of authorities of which I needonly refer to Perera v. Perera The evidence there was, that the seconddefendant was paid Re. 1.37 per day, that if he was absent without leavehe was fined, and that after a length of service he would be entitled to agratuity. On this evidence, Wood Renton J. held that the seconddefendant was a public servant within the meaning of this Ordinance.The learned Commissioner in this case held on' the evidence before himthat the defendants were both in the regular service of the ‘MunicipalCouncil, that they were entitled to certain privileges as regards sick leave,and would receive a gratuity at the end of their period of service. It isalso clear from the evidence that they receive their pay monthly, althoughthe pay is calculated on a daily rate of pay- The case therefore fallsclearly within the authority to which I have referred, and theCommissioner’s finding that the defendants are public servants must beupheld.
A further question was raised in appeal which does not appear to havebeen taken in the Court below, namely, whether the second defendanthad ceased to be entitled to the protection of the Ordinance as his serviceterminated in E'ebruary, 1936. The plaint in this action, however, wasfiled on December 11,1935, and it was held in. Samsudeen v. Goonewardene'that an action against a public servant could not be maintained even ina case where the objection had been taken after judgment, and wherethe inquiry on the point was actually held after the defendant had ceasedto be a public servant. Akbar J. held that the whole proceedingincluding the promissory note annexed to the plaint was void undersection 4 of the Ordinance, because the action when instituted was incontravention- of the Ordinance.
Counsel for the appellant attempted to question the finding of fact,but this appeal is only on a question of law, and he is precluded fromchallenging the findings on facts of the learned Commissioner of Requests-In these circumstances the appeal of the plaintiff must be dismissed withcosts.
Appeal dismissed.. •
• 13 N. /-. R. 257.
* 37 N. Jy. R. 367-
PARANGODEN v. RAMAN et al