Payan Bhai v. Gunathileke.
1940Present: Soertsz J.
PAYAN BHAI v. GUNATHILEKE
C. R. Colombo, 44,746.'
Public Servants (Liabilities) Ordinance (Cap. 88)—Action 'against publicservant—Retirement from service pending action—Right to plead theOrdinance.
A public servant, who was sued at a time when he was a public servantbut who retired from service during the pendency of the action, Is entitledto plead the benefit of the Ordinance.
HIS was an action on a promissory note against the defendant whowas a public servant at the time he was sued. ^
At the date on which he pleaded the benefit of the Public Servants(Liabilities) Ordinance he had retired from the Public Service. TheCommissioner of Requests dismissed the plaintiff’s action.
N. Nadarajah, for plaintiff, appellant.—The previous decisions do notapply or can be distinguished.
In this case at the date on which defendant respondent took the pleaunder the Ordinance he had ceased to be a public servant.
Section 3 of the Public Servants .(Liabilities) Ordinance shows that theOrdinance did not contemplate a complaint by a party who had ceasedto be a public servant.
Section 3 lays down the only means by which the existence of proceedingin contravention of the Ordinance may be brought before the Court, i.e.,by a public servant or the head of his department. Here the defendantwas not a public servant at the time of making complaint inasmuch as)he had retired. The only remedy open to defendant was to apply by wayof restitutio in integrum. Provision is made by the section for a complaintto a superior court.
O.L. de Kretser, for defendant, respondent.—Perera v. Perera’;Wijesinghe v. de Silva’; Madawela v. Madavoela*; Samsudeen Bhai v.Gunawardene are in point and in view of sections 2 and 3 of the Ordi-nance, the fact that the defendant had retired at the time he took theplea is immaterial. The sections must be read as a whole.
It is the duty of the Court to refuse to allow steps to be taken when- the fact that defendant is a public servant comes to its notice and thesection enacts only some of the means by which the fact is broughtto the notice of the Court. Karuppen Chetty v. Harrisons & Crasfield,Ltd.’
The reference to Supreme Court in the sections is to meet cases that theSupreme Court has to deal with in appeal.
Cur. adv. vult.
■» 13 N. L. R. 257.» 2 C. W. R. 121.
• 24 N. L.R. 317.
•6 0.1,. W. 94.
* 37 N. L. R. 367.
SOERTSZ J.—Pagan Bhai v. GvnathUeke.
July 5, 1940. Soertsz J.—
I have considered very carefully the submissions made to me by Counselfor the appellant in the course of his interesting argument, and I havecome to the conclusion that the learned Commissioner took a correctview of the meaning and effect of sections 2 and 3 of the Public Servants(Liabilities) Ordinance. That view is supported by a large volume ofcase law. See Perera v. Perera (supra); Wijesinghe v. de Silva (supra);Parang doun v. Raman and anotherMadawela v. Madawela (supra) ;Samsudeen Bhai v. Gunawardene (supra). Counsel’s heroic attempt todistinguish this case from those on the ground that at the date on whichthe defendant-respondent took the plea under the- Ordinance, he hadceased to be a public servant, having retired six months earlier, cannotsucceed in view of the fact that section 3 of the Ordinance enacts, “allproceedings and documents in or incidental to an action in contraventionof this Ordinance shall be void . . . . ” and section 2 says “ noaction shall be maintained against the public servant …. uponany bond, bill of exchange, promissory note . . . .”. It is admittedthat this was an action on a promissory note, and that the defendantwas, at the date of the action, a public servant within the meaningof the Ordinance.
It seems to me that the crucial time for ascertaining the decisive factin the matter, namely, whether the defendant is or is not a public servant,is the time covered by the pendency of the action. If, at any pointduring that time the defendant is, or becomes a public servant, theproceedings are automatically rendered void, for the Ordinance says “noaction shall be maintained (not instituted) against a public servant”.The fact that pending an action a defendant ceases to be a public servantis, in my judgment, immaterial, for, the proceedings having once becomevoid, do not revive, so to speak, on a defendant ceasing to be a publicservant. At any rate, the Ordinance makes no such provision, and itwould be unreasonable to read such a provision into it Counsel reliedon the words “all proceedings and documents in or incidental to anaction in contravention of this Ordinance shall be void, and where com-plaint is made by a public servant or the head of his department”, andcontended that the Ordinance does not contemplate a complaint by aparty who had ceased to be a public servant. I am unable to entertainthis contention. It is, I think, the duty of a Court which becomes awareat any stage and in any manner at all, that the proceedings in an actionare or have become void by operation of the Ordinance, to refuse to allowfurther steps to be taken in that action. See for instance KaruppenChetty v. Harrisons & Crosfield, Ltd.'.The words I have quoted as reliedon by appellant’s Counsel for his contention, provide for the case of oneparticular method by which a Court is made acquainted with the existenceof proceedings in contravention of the Ordinance, and the section goeson to enact that in such a case the Court “shall if necessary dischargesuch public servant, and may award reasonable costs to the complainant”.Section 3 does not in my opinion mean, as Counsel submitted it did, that
1 6 C.L. W. 39.
* 24 N. L. B. 317.
DE KRETSER J.—The King v. Emania.
the existence of proceedings in contravention of the Ordinance may noteffectively be brought to the notice of a Court by a person other than apublic servant actually in service at the time or by the head of his depart-ment. Counsel also sought to base an argument on the fact thatprovision is made by section 3 for a complaint to a “ superior courtHe argued that that indicated that a party in the position of the presentdefendant should apply for relief by way of restitutio in integrum to theSupreme Court. It seems to me a futile proceeding, and in the nature ofa contradiction to ask for relief from something that the law has declaredvoid.
In my view “superior courts” are mentioned in that section to meetcases that have been dealt with by the Supreme Court on appeal. Theappeal fails. I dismiss it with costs.
PAYAN BHAI v. GUNATHILEKE