016-NLR-NLR-V-72-G.-E.-RATNASINGHAM-Appellant-and-PEOPLES-BANK-Respondent.pdf
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H. N. G. FERNANDO, C.J.—Batnasingham v. People's Bank
1969 Present : H. N. G. Fernando, C.J., and Weeramantry, J.
G. E. BATNASINGHAM, Appellant, and PEOPLE’S BANK,
Respondent
S. C. 302(67 (F)—D. C. Colombo, 60492JM
Public servant—Salary less than lis. 520—Temporary secondment to Port CargoCorporation on salary of more than Bs. 520—Debt incurred by him duringperiod of seconded service—Exemption from liability—Port Cargo Corj)orationAct, No. 13 oj 195S, s. 50—Motor Transport Act, No. 4S of 1957, s. 9—PublicServants (Liabilities) Ordinance, s. 2 {1) (2).
"Where a public servant whose salary in regard to his fixed employment doesnot exceed Rs. 520 per month enters into a contract of guarantee at a timewhen he has been seconded to the Port Cargo Corporation on a temporaryappointment giving a"niontKly salary Of"mOre tharTRs. 020, "section 2 of thePublic Servants (Liabilities) Ordinance protects him from liability under thoguarantee.
Appeal from a judgment of tho District Court, Colombo.
K.Nctdarajah, for the 3rd defendant-appellant.
N. Satyendra, for the plaintiff-respondent.
Cur. adv. vult.
June 20, 1969. H. N. G. Fernando, C.J.—
Tiro plaintiff Bank sued three defondants on two causes of action. Asagainst the 1st defendant the jdaintiff claimed that the Bank had lent anadvance to him of a sum of Rs. 15,000 with interest, and giving credit forcertain pa3’ments, sued for tho balance due on tho loan.
As against the 2nd and 3rd defendants, the claim of the plaintiff wasbased on a guarantee by which thoso defendants undertook to pay tothe plaintiff moneys due on the loan transaction from tho 1st defendant.On this cause of action the learned District Judge entered judgmentagainst the 3rd defendant for the amount claimed.
The defence taken up by the 3rd defendant was based on s. 2 of thePublic Servants (Liabilities) Ordinance. Sub-section (1) of this sectionprovides that no action shall be maintained against a public servantupon any promise to be answerable for tho debt or default of anotherLxxn—4
1*J 4758—2.265: 7/69)
74H- N. G. FERNANDO, C.J.— Jiatnasin'jham v. People's Bank
person. Sub-section (2) provides that this immunity does not apply toa public servant ** who at the dato when the liability sought to bo enforcedis contracted is in receipt of a salary in regard to his fixed appointmont ofmore than five hundred and twenty rupees a month
The gxiaranteo in this case was signed by tho 3rd defendant on 16thJune 1962. The 3rd defendant was a member of the General ClericalService and his substantive salary as a member of that service at allmaterial times was loss than Rs. 520 per month. On 15th May 195Showever, lie had been seconded for service with the Port Cargo Corpora-tion, and at tho time when he signed the guarantee he was still undersecondment to the Corporation and was at that time in receipt as salaryfrom tho Corporation of Rs. CIO per month. Tho learned trial Jndgohas held that- tho salary of tho 3rd defendant in regard to his fixoclappointmont on 16th June, 1962 -was Rs. 6J0, and that accordinglythe Public Servants (Liabilities) Ordinance does not protect him fromhis liability under the guarantee.
Section 50 of the Port Cargo Corporation Act No. 13 of 1S5S enablesthe Directors of the Corporation to recruit-as employees of tho Corporationan officer in the Public Service either for temporary appointment to thestaff of tho Corporation or for permanent appointment to tho staff. Thosection further provides that in such eases the provisions of section 0 ofthe Motor Transport Act will apply to an officer so appointed to thestaff of the Corporation. The 3rd defendant clearly was thus secondedto the Port. Cargo Corporation on a temporary appointment. In factthis secondment, ceased even prior to the inst itution of the present actionand the 3rd defendant reverted to office in the General Clerical Service inNovember 1962.
In reaching liis conclusions against the 3rd defendant the learned trialJudge has relied upon a provision of s. 9 of the Motor Transport Act (inits application to this case) under which in a case cf a temporary officerthe Port Cargo Corporation must pay to'the Consolidated Fund 25% ol'the salary payable to tho officer in his substantive post in the publicservice. Having referred (o this provision, the trial Judge states "thattho Board pays to the Treasury the extra remuneration which the 3rddefendant bccaino entitled to by virtue of his secondment ”. Thisstatement is based on a misunderstanding of tho provision in s. 9. Thismonthly sum equivalent to 25 per cent of tho officer’s substantive salarydoes not in any way represent- tho extra remuneration which the officergets in tho seconded office. Tho requirement for such a payment by t heCorporation to tho Treasury is connected with tho fact that the period oftho seconded service with the Corporation will count for tho ponsion towhich the officer will be entitled as a member of the General ClericalService under tho Pension Minute. Such a provision does not providea-tost by which to determine for the purpose of tho Public Servants
H. N. G. FERNANDO, O.j.-—Batnasingham v. People's Bank
IS
(Liabilities) Ordinance what was the 3rd defendant’s salary in regard tohis fixed Appointment at the relevant time. Undoubtedly tho 3rddefendant on lG(h June 19G2 was in receipt of a salary of Rs. GIO permonth as a seconded cmployoo to the Corporation, and the question fordetermination is whether his appointment- at that date under theCorporation was his fixed appointment.
The question is a difficult one because there could not have been, incontemplation in ISS9 a situation in which Public Officers are secondedfor service under Corporations established for the purposo of carryingont functions which before their • establishment-wero carried out byDepartments of Government. 33ut thmc is in my opinion sufficientmaterial for holding that the protection enjoyed under the Ordinance)by certain categories cf public servants is retained by them on suchsecondment. By reason of s. 9 (3) of the Motor Transport Act, anofficer in the Public Service who is permanently appointed to the staff ofthe Corporation, shall he. deemed lo have left the public service. “This issome indication of an intention that a seconded officer temporarilyappointed to tho Corporation does not thereby leave tho Public Service.Again, s. 9 (2) provides that an officer having a temporary appointmentin the staff of tho Corporation “shall bo doomed to have been absentfrom duty in the Public Service on leave granted without salary ”, andthe effect of this provision is that the officer’s service with the Corporationcounts for pension as service under the Government. Thus the law forpension purposes regards service with tho Corporation as being service asa Public Servant. Having regard to these provisions there is muchjustification for tho view that a public servant who is temporarilyemployed by the Corporation is so employed for tho very reason that hois a permanent officer of the Public Service, and that it is his capacity asa member of the Public Service which qualifies him for tho temporaryappointment in the Corporation.
Lot mo take now a ease which is fairly analogous to the present ono.Suppose that an officer in tho Clerical Service whoso substantive salaryis less than Rs. 520 jjer month acts for some period in a staff appointment,and roceives during that period a salary exceeding Rs. 520. If what isrelevant for the purposo of tho Public Servants (Liabilities) Ordinance isthe salary in his seconded office, then the officer will not bo immunefrom liability upon a contract entered into d’.iring his secondment.Nevertheless, if he later reverts to a post in tho Clerical Service and tohis former scale of salar3r, tho immunity will again attach to him inrospect of any new contract. I much doubt whether the Legislatureintended that a particular Public Officer should at some stages of hissqyvice be liable upon such contracts, but that there may be intervalsbetween these stagos during which ho will not be so liable.
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Ceylon Transport Board v. Gitnasinghe
I hold accordingly that in the case of tho 3rd defendant his fixedappointment within the meaning of tho Public Servants (Liabilities)Ordinance was his pormanent and substantive appointment, which wasthat of an officer in tho General Clerical Service. His salary in respoct of. that appointment was obviously below Rs. 520 por month and hothoreforo on joyed the immunity conforred by the Ordinance.
Tho judgment and decree are sot aside and tho plaintiff’s action isdismissed. In view of tho novelty of tho quostion which arises in thiscase the 3rd defendant will be entitled onlj- to tho costs of this appoal.
Weeramaxtry, J.—I agreo.
Judgment and decree set aside.