055-NLR-NLR-V-60-ABDUL-MANAFF-Appellant-and-J.-V.-R.-LA-BROOY-Respondent.pdf
236
Abdul Manaff v. La Brooy
1958Present: K. D. de Silva, J.
ABDUL MANAFF, Appellant, and J. V. R. LA BROOY,
Respondent
S. C. 47—0. B. Kandy, 13,041
Public Servants (Liabilities) Ordinance—Section 4—lH ember of the Local GovernmentService—Is he a “ public servant ” ?—Local Government Service Ordinance,No. 43 of 1945, ss. 11, 13, 14,15, 45 (1).
A member of the Local Government Service constituted by section 13 of theLocal Government Service Ordinance, No. 43 of 1945, is not a public servantwithin the meaning of section 4 of the Public Servants (Liabilities) Ordinanceunless he. can show that, before the Local Government Service Ordinancecame into operation, he was entitled to the benefit of the Public Servants(Liabilities) Ordinance and that he did not lose that benefit on becoming amember of the Local Government Service.
A
^APPEAL from a judgment of the Court of Requests, Kandy.
//. W. Jayewardene, Q.O., with G. T. Samerawickrame and N. B. M.
Daluwatte, for the plaintiff-appellant.
P.Somatilalcam, with W. D. Gunasekera, for the defendant-respondent.
Cur. adv. vult.
K. D. DE SILVA, J.—Abdul Manaff v. La Brooy
237"
September 10,1958. K. D. de Silva, J.—
The plaintiff appellant who is a money lender sued the defendant,respondent to recover a sum of Rs. 260 which he alleged was due to him.from the defendant on the promissory note dated 10th July, 1953,produced in the case marked A. This promissory note is for the sumof Rs. 200 carrying interest at the rate of 18%. The defendant in.his answer stated that he received only a sum of Rs. 150 on the notesued upon and that he had paid the plaintiff a sum of Rs. 175 in fullsettlement of the amount due on it. He further stated that he was apublic servant in that he was employed as a plumber in the MunicipalCouncil, Kandy, and was in receipt of Rs. 295 as salary and allowance*per month and pleaded the benefit of the Public Servants (Liabilities),Ordinance (Cap. 88) (hereinafter referred to as the Ordinance).
The parties went to trial on four issues one of which reads as follows :—
“ Is the defendant a public servant within the meaning of the
Public Servants (Liabilities) Ordinance ? ”.
The learned Commissioner answered that issue in the affirmative anddismissed the plaintiff’s action. This appeal is from that judgment.
The question for decision on this appeal is whether the defendantcomes within the definition of a “ public servant ” as contemplated bysection 4 of the Ordinance. According to that section a public servant“ means a person employed in the service of the Government of theIsland, or of any Municipal Council or District Council, or Local Board,or of any Provincial or District Committee established under theThoroughfares Ordinance”. It was urged on behalf of the plaintiffthat the defendant is not a person employed in the service of the MunicipalCouncil, Kandy, but an officer in the service of the Local GovernmentService and as such is not entitled to the benefit of the Ordinance. Insupport of that contention the Counsel for the appellant relied on certain-provisions of the Local Government Service Ordinance, No. 43 of 1945.Section 13 of that Ordinance constituted a Service called and known as“The Local Government Service”. Section 14 provides that thisservice “shall consist of those officers and servants of the MunicipalCouncils, Urban Councils, Sanitary Boards, Village Committees,Provincial Road Committees and District Road Committees whoseposts are specified in the First Schedule ”. The next section, i.e., section15, provides that every member of the service shall be deemed for allpurposes to be in the service of the Local Government Commissionwhich is created by section 2 of that Ordinance. Section 14 thus bringsinto the Local Government Service certain officers who are clearly notentitled to the benefit of the provisions of the Public Servants (Liabilities)Ordinance. They are the officers and servants of the Sanitary Boardsand Village Committees. In Dismnaydka v. Yatawara1 it was heldthat a person employed in the service of a Sanitary Board does not fallwithin any of the classes of employees enumerated in section 4 of thePublic Servants (Liabilities) Ordinance and cannot therefore claim thebenefit of that Ordinance.
1 [1948) 49 N. L. JR. 214.
238
K. D. DE SILVA, J.—-Abdul Manaff v. La Brooy
Section 11 of the Local Government Service Ordinance vests in theCommission the powers to recruit, appoint, transfer, dismiss and interdictthe members of the Service and to maintain discipline in the Service.The main object of that Ordinance was to bring into being a body ofofficers and servants under the full and exclusive control of the Com*mission to be employed under the various local authorities. Althoughthe salary of each officer was to be paid by the local authority to whichhe was attached yet he was deemed for all purposes to be in the service ofthe Commission. Section 15 (2) of the Local Government Service Ordinanceprovided that “ each member of the Service shall be deemed to be apublic servant within the meaning of the Penal Code ”. The fact thatno provision was made to treat the members of the Service as publicservants within the meaning of Ordinances other than the Penal Codeis very significant. Although practically every officer of the Serviceis employed under a local authority can it be said that an officer attachedto a particular local authority is in the service of that local authority 1I think that question must be answered in the negative. The counselfor the respondent attempted to draw a distinction between ” employ-ment ” and “ service ”. He argued that although an officer is in theservice of the Commission yet he is employed by a local authority andthat if he is so employed by a local authority enumerated in section 4of the Public Servants (Liabilities) Ordinance he is entitled to pleadthe benefit of that Ordinance. I am not impressed by that arguement.A public servant who is protected by section 2 of the Ordinance is aperson employed “ in the service ” of the local bodies enumerated insection 4. Mere employment in such a local body is insufficient buthe must also be in the service of the local body, if he is to secure theprotection of the Ordinance. I would therefore hold that a memberof the Local Government Service constituted by section 13 of OrdinanceHo. 43 of 1945 is not a public servant within the meaning of the PublicServants (Liabilities) Ordinance unless he can show that before theLocal Government Service Ordinance came into operation, he wasentitled to the benefit of the Ordinance (Cap. 88) and he did not losethat benefit on becoming a member of the Local Government Service.Section 45(1) of Ordinance Ho. 43 of 1945 provides that every officeror servant of a local authority, who on the day immediately precedingthe date on which the Ordinance came into operation, held a scheduledpost shall on that date be transferred to the Service. Such a personis called a “ transferred member ” of the service. Section 45 (1) furtherprovides that a “ transferred member ” shall thereafter be deemedfor the purposes of that Ordinance to be a member of the Service. Thusthere is a distinction between a “ transferred member ” and an ordinarymember of the Service. An ordinary member is governed by all theprovisions of Ordinance Ho. 43 of 1945 whereas a “ transferred ” memberis only deemed to be a member of the Service for the purposes of thatOrdinance. Therefore a “ transferred member ” if at the date of histransfer was in possession of any rights which are not repugnant to theprovisions of Ordinance Ho. 43 of 1945 he would not lose those rightsmerely because he is absorbed into the Service in consequence of section45 (1) of that Ordinance. It is true that that Ordinance did not confer
239
Marimuthu v. Commissioner for Registration of Indian and
Pakistani Residents
rights under the Public Servants (Liabilities) Ordinance on the membersof the Service but it also did not take away from those persons absorbedinto the Service under Section 45 (1) the rights they already enjoyedunder the Public Servants (Liabilities) Ordinance. The “transferredmembers ” are to be deemed to be members of the Service only for thepurposes of Ordinance No. 43 of 1945. The conferment or the abrogationof the rights under the Ordinance (Cap. 88) was not one of its objectives.Hence a “ transferred member ” who at the date of transfer waseligible to the rights under the Ordinance (Cap. 88) would not, by reasonof transfer alone to the Service, forfeit those rights.
The defendant has been employed in the Municipal Council, Kandy,for a period of 35 years. It is not denied that at the time of his transferto the Service he was entitled to plead the benefit of the Ordinance.He continued to be employed in the Municipal Council, Kandy, up to thedate of institution of this action. His monthly emoluments amount toless than Rs. 300. Hence he is entitled to claim the benefit of theOrdinance (Cap. 88). The learned Commissioner was right, therefore,in answering the issue in the affirmative. Accordingly I dismiss theappeal with costs.