Muttncarpen Chettiar v. Velupillai.
19.1S Present: Hearne and Keuneman JJ. and Wijeyewardene A.J.MUTTUCARPEN CHETTIAR et al. v. VELUPILLAI61—D. C. Kegalla, 97.
Public Servants’ (Liabilities) Ordinance—Promissory note given by an un-registered overseer in Public Works Department—Public servant at thetime note was given—Public Servants’ (Liabilities) Ordinance, 1899,s. 3 (3).
An unregistered sub-overseer employed in the Public Works Depart-ment is a public servant within the meaning of the Public Servants’(Liabilities) Ordinance.
Weerasinghe v. Wanigasinghe (34 N. L. ft. 135) followed.
Held, further (Keuneman J. dissentiente), the words of section 3, sub-section (3), that it “ does not apply to a liability contracted by a personprior to the date when he became a public servant ” mean a liabilitycontracted by a person at a time when he was not a public servant.
Muttucarpen Chettiar v. Velupillai.
HIS was an action against the defendant on a promissory note madeby him -in April, 1930. The defendant was employed as an
unregistered sub-overseer in the Public Works Department from 1926 to1933 when he was discontinued owing to the policy of retrenchment. Hewas re-employed in June, 1935, and continued to be so employed at thetime of this action. The case was referred to a Bench of three Judges onthe following questions
Is an unregistered sub-overseer a public servant within the meaningof the Public Servants’ (Liabilities) Ordinance ?
Is the defendant debarred from claiming the benefit of the Ordinanceby reason of the f&ct that he was not a public servant from 1933to 1935 ?
N. Nadarajah (with him D. W. Fernando and H. W. Thambiah), forplaintiffs, appellants.—The first question to be considered- is whether anunregistered overseer, employed temporarily and paid daily, is a publicservant. Section 2 of Ordinance No. 2 of 1899 defines the expression“ public servant Section 3 enumerates the various forms of contractin respect of which no action can be maintained against a public servant.The present action comes under section 3 (1)(c). It is necessary to
examine section 3 (2). It speaks of a “fixed appointment'”. Theevidence of the District Engineer refers to the terms of employment of thedefendant.
[Keukeman J.—Is not there any official document ?]
Unfortunately, no, but the evidence of the District Engineer is clear.
A similar case came up for consideration in Weerasinghe v. Wanigasinghe ■[Keuneman J.—This decision takes away the point about “ fixedappointment ”. Section 2 is wide. According to it, a public servantmeans a person employed in the service of the Government.)
[Hearne J.—That is the point—service is sufficient. Conditions andincidents will not matter much.]
It has been held, however, that a person, employed as a tide-waiter atthe Customs, is not a public servant—Palaniappa Chetty v. Fernando et al*Wood Renton J. held in Grigoris v. The Locomotive Superintendent * thata mechanic employed on daily wages in the Government Railway is nota public servant.
Wood Renton J. has emphasised the requirement of a fixed appoint-ment in Perera v. Perera et al.‘ It is essential that a person should havea fixed appointment, although he may not receive a regular salary.Further, there is the case of Jayasihghe v. Jayatileke r, where Dalton J.held that a registrar of births, deaths and marriages is not a publicservant. If the tests of permanence of employment and continuity ofwork, which Dalton J. emphasised, are applied, the defendant must fail.The position of an unregistered overseer would seem to rest on job-work.Thirunayake v. Thirunayake “ is another case in point.
To interpret' section 2, apart from opinions expressed in decided cases,section 3 (2) sets out clearly the requisites, viz., salary and fixed appoint-
i 34 N. L. R. 185.
= (1905) 1 A. C. R. 27.
» (1912) 15 N. L. R. 117.
* (1910) 13 N. L. R. 257.. = (1933) 35 N. L. R. 369.« (1937) 39 N. L. R. 35.
Muttucarpen Chettiar v. Veluptllai.
[Keuneman J.—Would not an officer on probation be protected ?Why should he be not regarded as employed in the public dfervice ?]
The sections should be interpreted as narrowly as possible, for theycurtail the normal rights of creditors. This notion of fixed appointmentis also endorsed by Sampayo J, in Saibo v. Punchirala I go the lengthaf submitting that there should be salary also.
Assuming that the defendant is a public servant, the requirement ofsection 3 (3) has to be satisfied. It has been held that the Ordinance doesnot extend to a person who, having once been a public servant, has ceasedto fill that character—Narayanan Chetty v. Samarasinghe *.
[Wueyewardene A.J.—Has not the defendant to prove just two facts,viz., (1) at the time of the loan he was a public servant, and (2) at the timeof the institution of the action, he is a public servant ?]
No, he must be the same public servant. See section 3 (3). The rulingin Narayanan Chetty v. Samarasinghe has been adopted also in Naga-muttu v. Kathiramen et al.1 The office referred to in section 3 (3) must bethe same as that referred to in section 3 (1).
The vital date is the date of the institution of the action—Parangodunv. Raman et al.'.
S. Nadesan (with him C. Ranganathan), for defendant, respondent.—In deciding the question as to whether an unregistered overseer is apublic servant, the distinction between (1) a contract of service, and (2)a contract to do a piece of work should be remembered. _The former iswhat is contemplated in section 2. The test which should be appliedto find out whether a person is a public servant within the meaning ofsection 2 is whether there is an. obligation on his part to render continuedservice. According to the evidence, the defendant (1) has to take leavewhenever he wishes to absent himself, (2) is entitled to a gratuity after 15years’ service, and (3) is entitled to 7 days’ leave with pay after servicefor 2 years. See the observations of Drieberg J. in Weerasinghe v.Wanigasinghe (supra). The obligation o'f an employee to rendercontinued service does not depend on-the period of service. The mode ofpayment of salary is also not a test. The decision in Perera v. Perera etal. (supra) helps the defendant on this point. See also Parangodan v.Raman et al. (supra) and Saibo v. Punchirala (supra). In Thirunayake v.Thirunayake (supra) the position of a public servant is distinguishedfrom that of a public officer.
Section 3 (2) should not be read in such a manner as to stress the words“ fixed appointment ”. The stress should rather be on “ salary ”.. Theobservations of Dalton J. in Jayasinghe v. Jayatileke (supra), are in conflictwith the ruling in Saravanamuttu v. Sittampdlamand with, the otherdecisions where the provisions of section 2 have been considered.
The purpose of Ordinance No. 2 of 1899 is to protect the public andnot the particular public servant—Narayanan Chetty v. Samarasinghe .(supra) and Nagamuttu v. Kathiramen et al. (supra). Section 3 (3) mustbe construed, therefore, with due regard to this purpose. It cannoti (1915) 18 N. L. R. 249.3 (1907) 2 A. C. R. 165.
* (1907) S Bal. Rep. 243.1 (1936) 39 N. L. R. 47.
3 (1934) 37 Ar. L. R. 98.
280HEARNE J.—Muttucarpen Chettiar v. Velupilloi.
control the plain words of section 3 (1). As long as a person was a publicservant when he made a promissory note, he cannot be sued if, at the timeof the institution of the action, he is a public servant.
[Keuneman J.—When did the defendant become a public servant, forthe purpose of this case ?]
On the first date, i. e., 1926. Section 3 (3) has to be construed restric-tively as it is a proviso.
N. Nadar a j ah, in reply.—It is a rule of construction to give the samemeaning to the same words occurring in different parts of a statute—Beale on Cardinal Rules of Legal Interpretation, p. 358 (3rd ed.) ; Courtauldv. Leigh It is important that the word “ date ” in sub-section (3) ispreceded by “ the ” and not by “ a ” or “ any ”.
Cur. adv. vult.
September 14, 1938. Hearne J.—
This appeal which was originally before a Bench of two Judges hasbeen referred to one of three Judges.
The defendant was employed by the Public Works Department in thecapacity of an unregistered sub-overseer from 1926' to 1933, during whichperiod, viz., in 1930, he executed a promissory note in favour of theplaintiffs. In 1933 he was' retrenched and was re-engaged in the samecapacity in June, 1935, and it is agreed that the defendant had rejoinedthe Public Works Department when the action was instituted.
Two questions require to be answered : (1) Is an unregistered sub-overseer a public servant for the purposes of the Public Servants’(Liabilities) Ordinance, 1899; (2) If so, did the defendant tvithin themeaning of sub-section (3) of section 3 execute the promissory note suedupon prior to the date when he became a public servant ?
In regard to the second question, assuming that an unregisteredsub-overseer is a public servant, it is clear that in relation to the periodsubsequent to the defendant’s re-engagement (1935) the execution of thepromissory note was before he became a public servant, and that inrelation to the period 1926-1933 the execution of the promissory note- wasafter he became a public servant. In construing sub-section (3) of section3, 1 assume that the Legislature was aware of the fact .that there arepersons who become public servants, cease to be public servants and laterbecome public servants again. Bearing this in mind and noting thatthere is no differentiation in the Ordinance between such a person andone who has been continuously in Government service, that is to say withno broken periods of service, I would'interpret the phrase “a liabilitycontracted by a person prior to the time when he became a public servant ”to mean “ a liability contracted by a person at a time when he was not apublic servant ”, and in this view the defendant did not execute thepromissory note at a time .prior to the date when he became a publicservant.
It may at first sight appear anomalous that the plaintiffs between 1933and June, 1935, could sue the defendant and that after the latter datethey could not do so, but I think the apparent anomaly vanishes whemone considers the purpose of the Ordinance which is the protection, notof the individual, but the public.
1 (1869) L. R. 4 Bxeh. at p. 130.
WUEYEWARDENE AJ.—Muttucarpen Chettiar v. Velupillai.281
The next question is whether an unregistered overseer is employed inthe service of the Government. He is given work when work is availableand is paid only for the days on which he works. The provision of workonly when available and the payment for such work at a daily rate do notin my opinion determine the question. The tests that have been appliedby this Court are continuity of service and obligation to work. Anunregistered overseer is under an obligation to present himself from dayto day, for he cannot absent himself without leave ; he is liable, while heis an unregistered overseer in the books of the Public Works Departmentto be called upon to perform work at any time at the option of that,Department, and he is bound to discharge the work he is called upon todo. The conditions of his employment, in my opinion, satisfy the testsboth of continuity of service and of obligation to work.
The District Judge found in favour of the defendant and dismissed theplaintiffs' action. I would, therefore, dismiss the appeal with costs.
The plaintiffs-appellants sued the defendant-respondent for the recoveryof an amount due on a promissory note made by him in April, 1930.
The defendant was employed as an unregistered sub-overseer in thePublic Works Department from 1926 to 1933, when his services weredispensed with, owing to the policy of retrenchment then adopted in theGovernment Departments. He was re-employed in June, 1935, as anunregistered sub-overseer and continues to be so employed up to date.The present action was instituted after the defendant’s re-employmentin June, 1935.
This case has come before a Bench of three Judges for the determinationof the following questions of law : —
Is an unregistered sub-overseer in the Public Works Department a
public servant within the meaning of “The Public Servants’(Liabilities) Ordinance of 1899 ? ”
Is the defendant debarred from claiming the benefit of the Public
Servants’ (Liabilities) Ordinance, 1899, by reason of the factthat he was not a public servant from 1933 to June, 1935 ? ”
The first question of law is covered by authority. In Weerasinghe v.Wanigasinghe it was held by Drieberg and Akbar JJ. that anunregistered sub-overseer in the Public Works Department was entitledto claim the benefit of the Ordinance as a “Public Servant” within themeaning of the Ordinance. If I may say so, I agree with the learnedJudges who gave the decision in that case and answer the first question inthe affirmative.y
The argument of the appellant’s Counsel on the second question of lawturns on the construction of section 3 (3) of the Ordinance. This sub-section provides that the protection afforded by the Ordinance does notextend to a “liability contracted by a person prior to the date when hebecame a Public Servant”. It was argued for the appellant that thenote in question was made before June, 1935, when the defendant became
* (1932) 34 N. L. B. 185.
WIJEYEWARDENE A.J.—Muttucarpen Chettiar v. Velupillai.
a “ Public Servant ” on his re-employment, and the defendant was not,therefore, entitled to claim the benefit of the Ordinance, as “ the date ”mentioned in the sub-section could refer only to the date of re-employ-ment and not to the date of the earlier employment.
It appears to me that the construction sought to be placed by theappellants’ Counsel necessitates the reading of the sub-section as if, inplace of the words, “ when he became a Public Servant ”, the Legislaturehas used the words, “ when he became such Public Servant ”,
It was, then, argued that, if it was possible for the sub-section to be sointerpreted as to make the “ date ” refer to the date of the first employ-,ment, such an interpretation would result in giving protection to thedefendant even in respect of a promissory note iriade by him' during theperiod of unemployment between 1933 and June, 1935, as such a documentwould then be a document executed subsequent to the date when hebecame a “ Public Servant This was however effectively met by therespondent’s Counsel who submitted that, in whatever way sub-section
was construed, sub-section (1) made it clear that a “ Public Servant ”could claim a benefit under the Ordinance only in respect of liabilitiesincurred by him when he was a “Public Servant”, and therefore thedefendant would, in no case, be protected from liability on a promissorynote made by him between 1933 and June, 1935.
[ think that the interpretation of this sub-section should be consideredin the light of the other provisions of the Ordinance. The Ordinanceseeks to protect public servants from certain liabilities enumerated insection 3 (1).' The other sub-sections of section 3 are in the nature ofexceptions engrafted to the general enactment which has been passed toprevent the Public Service from being obstructed as a result of legalproceedings against public servants. These sub-sections should nottherefore be given • an extensive interpretation tending to defeat thepurpose of the Ordinance. A study of the provisions of the wholeOrdinance shows that the Ordinance does not invalidate any documentmade by a “Public Servant”. The object of the Ordinance is only toprohibit an action being instituted against a “ Public Servant ” in certaincircumstances, and this is brought but clearly by section 4 which penalizesthe person who brings an action in contravention of the -Ordinance by1providing that the document in respect of which the action was brought 'would become void as a result of the institution of the action.
In Narayanan Chetty v. Samarasinghe ’, it was held that the Ordinancedid not prevent a person who had ceased to be a “ Public Servant ” from'being sued on a note made by him when he was a “ Public Servant ”.
In Samsudeen Bhai v. Goonewardeneit was held that – a “ PublicServant ” who, when sued, failed, to plead the benefit of the Ordinance wasnot debarred from raising the plea in execution proceedings against him!in the same action, even though he had ceased to be a “ Public Servant ”at that stage.
The combined effect of these decisions is that the Ordinance prohibitsproceedings against persons who are “ Public Servants ” at the time ofthe institution of such proceedings and if the proceedings are for the1 (1907) 3 Bal. Rap. 243.= (1935) 37 N. L. R. 367.
KEUNEMAN J.—Muttucarpen Chettiar v. Vclupilloi.
enforcement of certain liabilities enumerated in the' Ordinance, providedthat such liabilities were incurred by a “ Public Servant ” at a time whenhe was a “ Public Servant
I am, therefore, of opinion that section 3 (3) does not exempt the note inquestion from the operation of the Ordinance, as the note was in fact, madeafter the defendant first became a “ Public Servant ” in 1926. If thenote had been made during the intervening period of unemployment, anaction could have been brought on the note, as the provisions of section3 (1) which is the main section dealing with actions against public servantsdo not apply to such an action.
I answer the second question in the negative and hold that the appealshould be dismissed with costs.
Keuneman J.— (Dissentiente).
This is an action on a promissory note brought by plaintiffs againstdefendant. A number of issues were framed, among them thefollowing: —
Is the'defendant a public servant?
If so, is the action maintainable against him ?
(a) Was the defendant a public servant at the date of the executioi
of the promissory note filed of record ?
(a) If not, is he entitled to plead the Public Servants’ (Liabilities/
Ordinance ? .
On the application of both Counsel, the issues (4) and (5) and (4a) and(4b) were tried first, and the learned District Judge held on these issuesin favour of the defendant. and dismissed the action with costs.
The defendant in this case is an unregistered overseer, employed bythe Public Works Department. He was first employed in 1926. Hisemployment was terminated in June, 1933, but he was re-employed inJune, 1935, before the date of the present action. The promissory not©was executed by him in April, 1930, during his first period of employment.
There is a distinction in the Public Works Department between aregistered and an unregistered overseer. The unregistered overseer isappointed with the approval of the Provincial Engineer, and his servicescan be terminated with the consent of the Provincial Engineer. He ispaid on the basis of a daily paid servant and gets payment only for thedays he works. • He is entitled after continued service for 2 years to sickleave with pay for about 7 days. He is entitled to casual leave andcompulsory leave. He is not entitled to pension, but he is entitled to agratuity after. 15 years’ service. He is not entitled to holiday warrants.He cannot keep away from work without the permission of the DistrictEngineer. He can be discontinued when there is no work for him;There is no obligation on the part of Government to find him work. Heis not on the permanent establishment of Government.
The registered overseer on the other hand derives his appointment fromthe Director of Public Works and cannot be dismissed without theapproval of the Director. He can obtain leave with pay. He is entitledto holiday warrants, and to a pension. He is paid by the month. .
KEUNEMAN J.—Mvttucarpen Chettiar v. VelupiUai.
Both classes of overseers are in charge of stores, i.e., tools and othermaterial, and according to the defendant, even an unregistered overseerhas to provide security in a sum of Rs. 150 in respect of the stores, this'sum being made up by contributions to Government of 4£ per cent, ofhis pay.
The defendant is now in the position of an unregistered overseer, paidat the rate of Re. 1.75 a day.
Two questions have been referred to us for decision,
Is an unregistered overseer in the position of the defendant a public
servant within the meaning of Ordinance No. 2 of 1899 ?
If (1) is answered in the affirmative, does the fact that defendant
was a public servant at the time he executed the promissory noteand at the time he was sued enable him to plead Ordinance• • No. 2 of 1899, in spite of the fact that there has been a break inhis service between those dates ?
As regards the first question, there is a direct authority in Weerasinghev. Wanigasinghe which the learned District Judge followed. In thatcase Drieberg and Akbar JJ. held that an unregistered overseer is apublic servant under Ordinance No. 2 of 1899. We have to considerwhether.this case was rightly decided.
Section 2 of Ordinance Np. 2 of 1899, defines “ Public Servant ” as“ a person employed in the service of the Government of the Colony
. . J”. This is a very wide definition and makes no reference topermanency or fixity of service, or to receipt of salary or remuneration.The section does, however, imply that .there must be a contract of service.
In Palaniappa Chetty v. Fernandos, Grenier A.P.J. held that a tide-waiter was not a public servant, on the ground that he held no fixedappointment, but was a person who did job-work for which he was paida daily wage getting 37£ cents a day when he worked, and if he chose notto work he could stay away. The fact that he was paid out of Govern-ment funds did not make him a public servant.
In Perera v. Perera*, Wood Renton J. in a case where the defendantwas paid by the day and was fined if he absented himself without leave,held that the defendant was a public servant, and apparently that heheld a fixed appointment.
In Saibo v. Punchirala ', de Sampayo A.J. held that a person holdingthe office of Arachchi and Police Headman was a public servant, althoughhe was not in receipt of a salary. He added : “ The servant, in order tobe entitled to the benefit of the Ordinance must no doubt have a fixedappointment, but the appointment need not have a salary attached to it”.
I have already pointed out that the words “ fixed appointment ” donot occur in section 2. Those words however are to be found in section3 (2), which excludes from the operation of section 3 (1) a public servant“who at the time the liability sought to be enforced is contracted is inreceipt of a salary in regard to his fixed appointment of more than Rs. 300
a month ”.
■ 04 N. L. R. is–,.
– 1 A. n. R. 27.
313 -V. L. R. 257.■* IS -V. L. R. 245.
KEUNEMAN J.—Muttvcarpen Chettiar v. Velupillai.
I am not clear why the words “ fixed appointment ” have been singledout for emphasis, nor why these words have been imported into thedefinition of the term “public servant”. It is however possible that inview of the nature of this Ordinance which interferes with the right ofcontract between individuals, as strict a definiion as possible should begiven to the words “ employed in the service of Government ”. Inconsidering what amounts to “service”, I think we are justified inexcluding service which is merely casual, and does not imply an obligationto perform the service on the part of the servant.
In Weerasinghe v. Wanigasinghe *, one test which has been Applied byDrieberg J. is continuity of service. He states : “ The conclusion to bedrawn from the evidence is that an unregistered overseer would ordinarilycontinue in the service of Government just as a registered overseer would.His services could be discontinued, if that be necessary, for such a reasonas retrenchment, but so can the services of any public officer, but otherwisehe would look to continuing service, and Government would not terminatehis services so long as he was satisfactory ”.
This test of continuity of work also applied to Jayasinghe v. Jayesinghe %to the case of a registrar of births, deaths and marriages, and Dalton A.C. J.thought that such a person failed to satisfy the test. See also Saravana-muttu v. Saravanamuttu *, where applying this test of continuing serviceAkbar J. held that a pay-agent under the Medical Department was apublic servant.
I take it that a person who is employed by Government for a fixedterm of continuous service would fall within the definition of a “ publicservant The fact that the service is for an indefinite period would Ithink, make no difference, provided the service is continuous and thatthere is an obligation on the part of the person employed to rendercontinuous service.
Applying this test, I hold that the defendant as unregistered overseeris a “ public servant ”.
The second question referred to us depends on an interpretation ofsection 3 (1) and section 3 (3).
Section 3. (1) states, “ No action shall be brought against a publicservant . . . .” This certainly requires that the person sued shouldbe a public servant at the time the action is brought. It does not extendto a person who once having been a public servant, has ceased to fill thatcharacter—Narayanan Chetty v. Samarasinghe'. It has been argued be-fore us that under section 3 (a), (b) and (c) the person must have been apublic servant at the time the liability was incurred, but I cannot readsuch a construction into these clauses. I am of opinion that section 3 (1)merely requires that the person sued should be a public servant at thedate of action.
Section 3 (3) says, “ This section shall not appply to a liability contract-ed by a person prior to the date when he became a public servant ”.
1 31 .V. I.. R. 38a.-»37 N. L. R. 98.
– 35 N. L. R. 369.* 3 Bal. Rep. 2i3.
KEUNEMAN JMuttucarpen Chettiar v. Velupilloi.
The question in the present case is whether that date is 1926 or June,1935, for the purposes of the Ordinance, iat other words the date of thefirst appointment or the subsequent appointment. The liability wascontracted in 1930 between these two dates.
It was argued by Counsel for the appellant that the words “ the date ”in section 3 implied that the date referred to the date of appointmentas such public servant. I think the use of the definite article mayhave some importance, but I prefer to rest my decision on anotherground.
There have been in this case two dates on which defendant became apublic servant. The plaintiff has established that the liability wasincurred before the date when defendant became a public servant inJune, 1935, and that is sufficient to give the plaintiff the right to claimthat the case falls outside the Ordinance. With regard to an Ordinancelike the present where the ordinary rights and liabilities under contractsare interfered with, I do not think we should strain the language of theOrdinance to secure immunity for the public servant. No doubt theimmunity was created for the benefit of the public, but as the preambleof the Ordinance shows this immunity was “ in respect of certainliabilities ”.
I do not think this interpretation is opposed to the spirit of theOrdinance. Clearly the defendant could have. been sued at any timeafter he ceased to be a public servant and before June, 1935, and I do notthink he should be allowed to escape a liability which was in existence atthe time he became a public servant in June, 1935.
Further if we were to hold that the date mentioned in section 3 (3) wasthe date of the first appointment of the defendant, viz., 1926, the resultwould be that even liabilities contracted between June, 1933, and June,1935, when defendant was not a public servant at all cannot’ be put insuit, as long as he remains a public servant. I do not think this is in.accordance with the policy of the Ordinance.
It was contended that because defendant was a public servant in 1930,when the liability was contracted, and also was a public servant when hewas sued, the Ordinance applies. I cannot see any language in section'3 (3) which warrants such an interpretation. If such had been theintention of the Ordinance, I think clear words would have been employedto ’express that intention. The difficulty in interpreting the OrdinanceI think arises from the fact that the draftsman never contemplated morethan one appointment, which continued from the date when the liabilitywas contracted until the date of action.
I hold that the defendant is not entitled to avail himself of OrdinanceNo. 2 of 1899, and I accordingly set aside the order of dismissal of theaction, and send the case back for trial of the other issues. The appellantis entitled to the cost ,of the inquiry in the Court below and of the appeal.All other costs will be costs in the1 cause.
MUTTUCARPEN CHETTIAR et al. v. VELUPILLAI