Van Reyk v. Sahibjan.
1948Present: Basnayake J.
VAN REYK, Appellant, and SAHIBJAN, Respondent.
S. C. 48—C. R. Kandy, 2,554.
Public Servants Liabilities Ordinance—Clerk in Food Control Department—Temporarynature of employment—Is he public servant ?—Test applicable.
A temporary clerk in the Food Control Department is a public servantwithin the meaning of the Public Servants Liabilities Ordinance.*
Appeal from a judgment of the Commissioner of Requests, Kandy.
' M. M. Kumarakulasingham, with P. S. W. Abeywardene, for thedefendant, appellant.
Christie Seneviratne, for the plaintiff, respondent.
(1823) Turn. <fc S. 138 at 140 ; 37 E. R. 1049 at 1060.
BASNAYAKE J.—Van Reyk v. Sahibjan.
May 18, 1948. Baskayakb, J.—
This is an. action by one C. Sahibjan for the recovery of money duefrom the defendant, one J. Van Reyk, on a promissory note dated June21, 1946, given by him. The only question that arises for decision onthis appeal is whether the defendant-appellant (hereinafter referred toas the appellant) is a public servant within the meaning of that expressionin the Public Servants (Liabilities) Ordinance. The learned Commissionerhas held that he is not.
The evidence is that the appellant joined the Food Control Departmentof the Government as a temporary clerk in January, 1944, and is still inservice. Under the terms on which he has been engaged his employmentcan be determined by the Government on a month’s notice. He is notentitled to a pension or gratuity but he contributes 5 per cent, of hissalary to the provident fund established under the Public Service Pro-vident Fund Ordinance, No. 18 of 1942. At the time he entered theservice of Government the appellant was fifty-nine years of age, and heis now sixty-three. The appellant receives a salary of Rs. 88 per mensem,a rent allowance of 15 per cent, of his salary, and a cost of living allowance.He is entitled to leave and holiday warrants like any officer on thepermanent establishment.
On these facts I have no doubt that the appellant is “ employed in theservice of the Government ” within the meaning of these words in thedefinition of the expression “ public servant ” in the Ordinance. Learnedcounsel for the respondent submits that the definition includes onlypersons employed in Departments of Government of a permanent natureand excludes those engaged in such Departments as the Food ControlDepartment which are not of a permanent nature. I find notliing in theOrdinance which warrants the limitation which learned counsel seeks toplace on the words ‘ ‘ employed in the service of the Government ’ ’ ;nor do the cases of Palaniappa Chetty v. Fernando1, Per era v. Perera 2, andSaibo v. Punchirala 3 support his proposition. In the last case De SampayoA.J. observes : “ The servant, in order to be entitled to the benefit ofthe Ordinance, must no doubt have a fixed appointment, but the appoint-ment need not have a salary attached to it.”
With the greatest respect I find myself unable to agree to the restrictionof the scope of the definition of “ public servant ” by the imposition ofsuch a rigid rule as is laid down in the last-mentioned case. The factsof each case must be looked at in order to determine whether a particularperson falls within the definition To my mind the test is not whetherthe department in which the person is engaged is a permanent feature ofGovernment activity but whether the employee, having regard tothe terms of his service, can be regarded as being in the service of theGovernment.
The appeal is allowed with costs in both courts and the judgment ofthe learned Commissioner is set aside.
* (1910) 13 K. L. R. 237.
11 A. C. R. 27.
(1915) IS N. L. R. 249.