015-NLR-NLR-V-36-GOUL-v.-CONCECION.pdf
GARVIN SPJ.—Gotti v.' Concecion.
73
Present: Garvin SJP.J. and Akbar J.
GOUL v. CONCECION.
265—D. C. Colombo, 51,740.
Public Servants? Liabilities Ordinance—Salary—Meaning of term—Does notinclude allowances—Ordinance No. 2 of 1899, s. 3 (2).
The term “ salary ” in section 3 (2) of the Public Servants’ LiabilitiesOrdinance means the regular remuneration received by a person inrespect of his fixed appointment in the public service and does notinclude allowances that may be granted to him.
A PPEAL from a judgment of the District Judge of Colombo.
Croos DaBrera, for the defendant, appellant.
Nadarajah (with him Wikramanayake) for the plaintiff, respondent.
July 12, 1934. Garvin SJP.J,—
This was an action on a promissory note. The defendant is undoubtedlya public servant, and, quite apart from the other defences taken by himhe has pleaded the benefit of the Public Servants’ Liabilities Ordinance,No. 2 of 1899. The learned District Judge has, however, held that he
i 2 Balasingham's Reports 104.
74
GARVIN S.P.J.—Goul v. Concecion.
was not entitled to these benefits upon the ground that the protectionafforded by the Ordinance is limited to public servants in receipt of asalary of less than Rs. 3,000 a year. In this the learned District Judgeis mistaken for section 3 (2) speaks of a salary of not more than Rs. 300a month, not of a salary of not more than Rs. 3,000 a year. The salaryof the defendant is said to be Rs. 3,500 a year which is less than Rs. 300a month. It is urged, however, by counsel for the plaintiff that inaddition to this he receives certain allowances and that these must betaken into consideration in the ascertainment of his salary.
Now in regard to these allowances, all that the evidence shows is thatin consideration of the payment of a certain percentage of his salary thedefendant is permitted to occupy a Government house and that wherehe is required to work “ overtime ” he receives a separate payment forthe hours so spent. The contention is that these privileges must alsobe assessed and added to what would ordinarily be referred to as hissalary. In regard to the first of these two matters, there is certainly nomaterial here which would enable such an assessment to be made, ifindeed it could be said that the privilege of occupying a Governmenthouse in consideration of the payment of a certain percentage of hissalary is an allowance. As regards “ overtime ”, there is again noevidence which would enable us to say what sum he earned in that way.Apart, however, from these considerations, it seems to me that the word“ salary ” within the meaning of section 3 (2) does not and was notintended to include any allowances which may from time to time or atany particular time have been granted to a public servant. The word“ salary ”, having regard to the context, must I think be given the mean-ing which would be attached to that word in the public service and inmatters relating to the Establishment. Indeed, the words “ salary ”and “ allowance ” are in a sense mutually exclusive, “allowance ” beingsomething which is additional to and distinct from “ salary If weapproach this matter from the point of view of the contention that any“ overtime ” earned by a man should be treated as part of his salarywithin the meaning of section 3 (2), the distinction will, I think, becomeapparent. “ Overtime ” clearly implies hours of work outside those ofhis fixed appointment. Section 3 (2) makes it perfectly clear that thesalary is that which a man receives in respect of his fixed appointment.It could hardly have been intended that some extra remuneration paidto a man in consideration of his doing extra work was to be regarded aspart of the salary of his fixed appointment. Again, as a mere matter ofinterpretation of this section it would seem that the word " salary ”connotes that sum of money which a man receives regularly every monthin respect of his fixed appointment. To admit the contention thatallowances and additions to a salary earned by “ overtime ” work areincluded in the term “ salary ” as used- in this section would be to make itdifficult, if indeed not impossible, to say of a public servant what hissalary is at any particular time. For these reasons I think that themeaning of the words of section 3 (2) is, as suggested, the regularremuneration -received by a man in respect of his fixed appointmentin the public service under the head “ salary ” as distinct from“allowances ”,
DALTON A.C.J.—Nessaemmah v. Sinnatamby.
75
In this view this appeal must succeed and the protection of the PublicServants’ Liabilities Ordinance, No. 2 of 1899, granted to the defendant.The plaintiff’s action must therefore be dismissed with costs both hereand below.
Assam J.—I agree.
Appeal allowed.