Weerasinghe v. Wanigasinghe.
1932Present: Drieberg and Akbar JJ.
WEERASINGHE v. WANIGASINGHE.
158—D. C. Kandy, 40,357.
Public servant—Unregistered overseer—Benefit of Public Servants’ LiabilityOrdinance—Ordinance No. 2 of 1889, s. 2.
An unregistered overseer is a public servant entitled to the protectionof the Public Servants’ Liabilities Ordinance.
HE plaintiff sued the* defendant to recover money due on twopromissory notes.
The defendant, who was an unregistered overseer employed in thePublic Works Department, pleaded the benefit of the Public Servants’Liabilities Ordinance. The learned District Judge upheld the plea.
H. V. Perera, for plaintiff-appellant. Defendant is an unregisteredoverseer.
A registered overseer is under a contract of employment and cannotbe dismissed without notice. An unregistered overseer is daily paid andthere is no contract of employment. He can be dismissed withoutnotice. Defendant’s job is not pensionable.
[Drieberg J.—Is pension a test ?]-
Yes, although not a conclusive one. In pensionable posts the appoint-ment is fixed although the salary is fluctuating. The word “ Employed ”in the Ordinance connotes definite and continuous employment. Thetest is not the doing of the work but the employment by Government.The Ordinance must be strictly construed because it, in effect, helps adebtor to evade payment of his debt. Reported cases indicate that theappointment must be fixed.
[Akbar J.—Is not sub-section (2) wide enough to include people onlytemporarily employed ?]
The limitation is contained in section 2 by the use of the word“ Employed ”.
[Drieberg J.—The object of the Ordinance is merely to preventmembers of the public service being embarrassed by writs.]
The Ordinance only affects liabilities incurred by public servants whilethey are public servants. Immunity from liability continues even aftera person ceases to be a public servant. The object is not to prevent thepublic service being embarrassed. The test is whether or not a personcan be discharged without notice.
[Akbar J.—But every Government Servant- holds office only duringHis Majesty’s pleasure. There is no contract.]
In that case the Ordinance would protect every casual laboureremployed by Government.
DRIEBERG J.—Weerasinghe v. Wanigasinghe.
[Drieberg J.—Is there not a difference between employment byGovernment and employment in the service of Government ?]
A casual labourer may be employed by Government but not employedin the service of Government. There must be a contract with mutualobligation’s of some kind. Employment during his Majesty’s pleasuremeans only that the termination of the contract will give rise to noliability. But there is a contract. The Crown as employer has a rightto the services. That is the test. In the case of an unregistered overseer,for example, the Crown has no right to his services.
[Akbar J.—That is a very vague test. Suppose the Crown has theright to a man’s services for a day.]
Time is not the test. The idea of a public servant must be associatedwith the particular work to be done (1 A. C. R. 28; 15 N. L. R. 117). Thecontinuity contemplated is no de facto continuity but continuity byvirtue of the contract. A person employed on a special contract, forexample, would not be in the service of the Government. In the case ofa Government servant Government has an exclusive right to his services.He cannot engage in any trade, for example, without permission. Thetest employed by de Sampayo J. in 18 N. L. R. 249 is that there shouldbe d1 fixed appointment. A fixed appointment means a continuingcontract with mutual legal rights and obligations.
[Akbar J. referred to Ordinance No. 11 of 1865. Is not a month tomonth contract implied from the circumstances ? Section 8 bringsin the Crown.] .
Even if an overseer is employed from month to month he is not in theservice of the Government. There must be a fixed appointment.
Ranawake, for defendant-respondent. The purpose of the Ordinancedoes not require a contract of continuing service. Its object is to preventembarrassment of the public service by litigation against public servants(18 N. L. R. at 251). That judgment goes to the length of saying that nosalary even is necessary.. Immunity does not continue when the publicservant ceases to be so (3 Bal. 243; 2 A. C. R. 165). Immunity must beconsidered with reference to the period during which embarrassmentwould be caused to the public service. The facts of this case show thatthe defendant has got a fixed appointment. He is paid on a monthlybasis. He cannot leave his station without permission.- This is not acase on a par with that of a tidewaiter. He belongs to a class of persons,litigation against whom would embarrass the public service and thereforethe protection of the Ordinance would extend to him.
H. V. Perera, in reply.—Gne must adopt a legal test. The test is notthe embarrassment of the public service. That is far too inexact.
July 4, 1932.- Drieberg J.—
The appellant sued the respondent on two promissory notes made inhis favour by the respondent. When these notes were made bothparties were unregistered overseers in the Public Works Department.The respondent pleaded the benefit of the Public Servants’ Liabilities
DRIEBERG J.—Weerasinghe v. Wanigasinghe.187
Ordinance of 1889. The learned District Judge upheld the plea andordered the stay of further proceedings in the action. The appellantappeals from this order.
As is not unusual in cases where the Ordinance is pleaded, neither partyhas called the best evidence to prove the status of the officer concerned.It would be an advantage to have the evidence of a superior officer of therespondent, the District or the Provincial Engineer. The questionhowever has to be decided on the only evidence before us which is thatof the parties and they are substantially in agreement.
An unregistered overseer differs from a registered one mainly, if notonly, in the fact that he is not entitled to a pension, and does not contributeto the Government Provident Fund for the benefit of his widow andchildren. He is not entitled to the benefit of holiday warrants.
He is paid monthly, but on the basis of a daily wage, and his nameappears on the check-roll. He receives no payment for days on whichhe does not work. There is no evidence that the mode of payment isotherwise in the case of registered overseers.
The work, though paid for by the day, needs service over an extendedperiod. He has charge of stores and tools for which he is accountableand a deduction is made monthly from his salary to form a fund to beheld by Government as a security for this purpose.
The evidence shows that the employment of these officers is ordinarilyexpected to be permanent; they begin as sub-overseers and are laterpromoted to the higher grade of overseers. The respondent began as asub-overseer fourteen years ago at Veyangoda ; he was later appointedto Kadugannawa and again to Veyangoda.
The appellant was an unregistered overseer and was recently discon-tinued as a result of retrenchment ; he was given the option of con-tinuing as a sub-overseer, but was not willing to do so. He says an un-registered overseer can be discontinued without notice, but the respondentsays that this is not so, and that he could not be dismissed without aninquiry and an opportunity given him of explanation. The conclusionto be drawn from this evidence is that an unregistered overseer wouldordinarily continue in the service of the Government just as a registeredoverseer would. His services could be discontinued, 4f that be necessary.,for such a reason as retrenchment, but so can the services of any publicofficer ; but otherwise he would look to continuing service, and the Govern-ment would not terminate his services so long as he was satisfactory.
The Ordinance defines a public servant as a person employed in theservice of the Government of the Colony or of certain local authorities.Sub-section 3 (2) enacts that the Ordinance does not apply to a publicservant who is “ in receipt of a salary in regard to his fixed appointmentof more than Rs. 300 a month” ; this provision is for the purpose only ofdefining those to whom the Ordinance does not apply- and does notnecessarily imply that those who are protected by it should have a fixedappointment or a salary: Saibo v. Punchirala1; that was a. case of aperson holding the office of Arachchi and Police Headman.
> (1916) 18 N. L. R. 249.
MACDONELL C.J.—De Silva v. Senaratne.
The words “ employed in the service of the Government of the Colony ”themselves call for a definition and in the absence of one they must beconstrued according to their ordinary meaning and in the light of thepurpose for which the Ordinance was introduced. The object of theOrdinance is to prevent the obstruction of public business as a consequenceof legal proceedings against public servants ; it is for the protection of thepublic and not of the individual servant. Narayanan Chetty v. Samara-singhe1; Nagamuttu v. Kathiramen
Considered from this point of view, the respondent is in my opinion apublic servant who is entitled to the protection of the Ordinance. Wewere referred to Palaniappa Chetty v. Fernando 3 which was a case of anextra tidewaiter at the Customs paid by the day. He was paid by theday; was at liberty to keep away if he liked, and there was not as in thiscase the obligation of rendering continued service to his employers.
The appeal is dismissed with costs.
Akbar J.—I agree.
WEERASINGHE v. WANIGASINGHE