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Present : Schneider J.
THE KING v: SEIiLIAH et al.2$—D. ,C. Kandy, 3,375.Secretary, Local Board, ordered to issue -permits to purchase rice during .
food control—Charge of . accepting illegal gratification—Penal
Code, 8S. 19 and 168—Public servant-. ' '
The accused was charged under section 158 of the Penal Code withhaving in his capacity a* a-public servant, to wit. Secretary of theLocal Board, Matale, accepted' illegal gratification. As secretaryhe was entrusted during the food control period by the Chairmanof the Board (who was also Deputy Food Controller) with the duty -of issuing permits to retail dealers to enable them to purchase ricefrom wholesale dealers and to perform other duties connected withfood control, for which be was not paid anything extra. Thecharge was in connection with these duties.
Held, that the duties .'assigned to the accused came, within thefunctions of a Local' Board, and that the Chairman had' the rightto instruct him to do the work assigned to him, and that – the accused,as Secretary of the Local Board, was a public servant' -within themeaning of section .19 of the Pens! Code.
Apart from his official status as Secretary, the accused' was nota public servant'..
rp HE facts appear from the judgment.
J. C. Pereira, K.C. (with him Hayley. and 8.. Bajaratnam), forthe first accused, appellant.
Akbar, A.S.-G. (with him Dias, C.C.), for the respondents.
July 13, 1922. ..'Schneider J.—The first accused in this case was convicted under three separatecounts of having .in his capacity “ as a public servant, to wit, Secre-tary of the Local Board of Matale,” accepted. on three severaloccasions three sums of rdoney as illegal gratifications, being offencespunishable under section 158 of the Penal Code. The secondaccused was convicted of …having abetted the first, accused in thecommission of the said offences. The first accused was; sentenced toundergo one year’s and the second accused to nine months’ rigorousimprisonment in respect of each count, the sentences to run. con-currently. –
Both accused have appealed. On appeal .there was no appearancefor the second accused, but the facts are such that if the chargeagainst the first, accused fails, it must fail as against the secondaccused also.
The appeals raise two questions. The one is this: Assumingthat the first accused did accept the sums alleged as gratifications,did he do so in the capacity of a." public servant " ? The other is:Did he, in fact, accept these sums ?
At my suggestion the argument waB confined to the first question,because the second question would not arise if it were held that thefirst accused – was not a – public servant. To decide the questionof law whether the first accused was acting as a public servant, it isnecessary, that' certain facts should be first ascertained. These 1shall now proceed1 to ascertain.
In 1919, owing to a scarcity in the supply of rice, the Governmentof this Colony was compelled to adopt measures for the. control offoodstuffs. The measures adopted are matters of public history,and may be gathered from the Government Gazettes of the day.Under the Defence of ‘the Colony Regulations, 1919, a FoodController was appointed.. He Jn turn appointed his deputies atvarious centres. The rice allotted to a particular area by the FoodController was distributed by -these deputies, with the help of personsor societies selected by themselves-
The several Assistant Government Agents were ariiong thoseappointed deputies for the various areas.
In connection with this control large powers were given;.to theFood Controller and to Government Agents, such as entering,; .uponand taking, possession of lands compulsorily,, witb' a view to theircultivation'.in food products; power' to enter private houses andpremises and take possession of rice and. paddy, and alsO to compelpersons to disclose their holdings of .foodstuffs'; to forbid the trans-port of foodstuffs from one area tp/ another; and to regulate bylicense and permits the distribution of foodstuffs. *
Looking, at .these facts, it is not'possible'to conclude that the dutiesof. the persons entrusted with those powers-were other than of apublic nature, : and that the- powers were entrusted generally topersons who would be called public servants in the common accept-ance of that term. I shall later proceed to discuss the questionwhether they were public -servants within the. meaning of the termin section 19 of the .Penal Code.
Mr. Millington being the Assistant Government Agent at Mataletook up the duties :of the Deputy Food Controller for his district.He was also ex officio Chairman of the Local Board of Matale. Hetells in his evidence in this case what he did for a start. He sent forthe Chief Clerk of his Kachcheri and for the Secretary of the LocalBoard, that is, the first accused, and entrusted to the Chief Clerkthe financial part, and to the Secretary the distribution part of thework in town .as regards, rice. He appointed the B&temahatmayaof Matale to-.lobk after the distribution of rice outside the limits of
* Gazette ■ No. -7,023 of, June '21, 1919,' and Gazette No. 7,028 of June 13,.1919, to mention two amongst others.
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the town. He issued an order in writing to the Chief Clerk on J une 2, –
It is as follows: —
“ Food Cpntrol.
The work in above connection will be done in the Englishdepartment. The Chief Clerk will be ressponsible for thecorrectness of all orders submitted to'me for signature. ”
He states that the Kachcheri and Local.;-Board are in the. samebuilding ; that the appointment, oi. persons to carry out the workof food control was left entirely to him and to his discretion ; thathe could have chosen whomsoever he pleased, ..and that no one was“ paid anything extra for the work '' ; and that he ** chose peoplewith whom (he) came naturally in contact. ”
Speaking of the duties which fell to the Chief Clerk and Secretary,he says that all moneys paid to him as Deputy Food Controller forrice were paid into the hands of the Chief Clerk ; that it was the dutyof the Secretary to ascertain the minimum quantity of rice requiredfor the town, to recommend traders to him, to .issue permits to theretail dealers to enable them to purchase rice from the wholesaledealers, to convey his orders to the dealers', and generally .that theSecretary had all the distribution work of the rice in the town.
He states that the “ first accused was n6f entitled to levy any fee ”for issuing permits, that he was not paid anything, extra, and. that“ all this was done as the Secretary of the Local Board. ’’
He produced the document marked P 15' . initialled by himand dated 2/10, that is, October 2, 1919, in which he gives the formsof permits to be issued to wholesale and retail dealers. As regardsthe forms of permit for wholesale dealers, it authorizes them to sellto bona fide traders “ within Matale town only on production of apermit from the Secretary, Local Board, Matale ; to those outsideonly upon production of a permit from the Ratemahatmaya of thedivision ; that the trader should not sell to any person other thanthe holder of the permit from the " Ratemahatmaya or Secretary,Local Board " ;’ that the trader must attach these permits to thedaily statements which he had to furnish to the “ D. C. F., Matale(that is “ Deputy Food Controller ”).
Just below this form of permit is a direction to put up a notice inthe Local Board Office ordering retail dealers to do a certain actunder penalty of pennits to purchase rice for retail sale not beingissued if the order were not complied with.. The form of the retailpermit is that it has to be signed by “ Ratemahatmaya or Secretary,Local Board.
Two permits issued by the first accused P 15 dated October 8and P 15a dated October 13 show that if number of forms of permitsmust have been lithographed, leaving room for the insertion of thename of the person, the quantity of rice, the date, and the signatureof the person granting the permit. This last is described as
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** Secretary, Local Board, Matale. " These permits ure signed bythe first accused. Again, Mr. Millington speaks of a conference withthe traders for the selection of a number of them as wholesale dealers.The minutes of the meeting are that there were present " AssistantGovernment Agent; Mr. C. Ariyanayagaro; P. M. South; Secretary,Local Board." Mr. Millington says that Mr. Ariyanttyagani waspresent as a prominent member of the Local Board. At the endof these minutes there is this direction: “ Secretary, Local Board,will attend at railway goods shed to supervise issues (i.e., of licenses)to these dealers."
Eighteen documents marked DD dated between December, 1919,and January, 1920, and addressed to the. Assistant GovernmentAgent requesting allowances of rice, have been endorsed “ Secretary,Local Board," by Mr. Millington,, and have' been dealt with by thefirst accused, by either allowing or refusing the applications. Inthe same series are four documents, one addressed to the Secretaryof the Local Board and the other three-to the Assistant GovernmentAgent, which bear no endorsement, but appear to have been dealtwith by the first accused by allowing or refusing the' application for.permits for the purchase of rice.
In his Administration Report.of the Matale District, as AssistantGovernment Agent, Mr. Millington (NPS 1 B 17), referring to foodcontrol, says: " Retail traders of Matale town and outlying partsof the district obtained their rice from these wholesale traders onpermits from the- Secretary, Local Board, and the Ratemahatmaya,respectively," and in his reports as Chairman of the. Local Board ofMatale (NPS 1 B 28) he writes: " 15. Bice.—Control and distributionwas in my hands as Assistant Government Agent, and the subjectis dealt with in my report in that capacity. I am much indebted toMr. C. Ariyanayagam and the Matale Social Service League for thevaluable advice and assistance which they have always so readilyplaced at my disposal in connection with distribution in the town.A bouse-to-house census of town residents was taken by the League,and the whole of the arduous work of writing up and distributingthe rice ticket books was most efficiently carried out by the mexnbcrs.1 also wish to place on record my appreciation of the work done' by.Mr. M. P. Selliah, the Secretary to this Board. He has throughbiitthe period of control been charged by me with the immediate super-vision of all the rice dealers, both wholesale and retail, in the town.A very large amount of additional work has thus been thrust uponhis shoulders, and he has throughout discharged it with commendable■zeal and efficiency and minute attention to detail.".
Mr. Millington's evidence is that the first accused carried out theduties he entrusted to him. The first accused, has given, evidenceadmitting the execution by him . of the several duties assigned tohim in connection with the control of food. His conduct as disclosed. by the documents to which I have .-already referred unmistakably
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shows that he regarded these duties as having been entrusted to himas part of his duties as Secretary df/the-Local Board. In his evidencehe nowhere says that-iie did not regard, them as such; on the contrary,the effect of his evidence is that he did Regard them as such. He says:
“ Mr. Millington knew all I did (that is, in connection-with foodcontrol), as I reported^ everything to him in my official capacity."And again:* * 1 did not' exceed my duties, the Assistant GovernmentAgent looked-' into all matters of importance.’’
The evidence accordingly leads to one conclusion. only, viz.,that Mr. Millington and the first accused both regarded the dutiesentrusted to the first accused as those pertaining to his office ofSecretary of the Local Board of Matale.
Mr. Millington /.appears to have been asked what generally werethe duties of the first accused as Secretary, and to have replied thatit was . to see that all Local Board rules were enforced." Thisobviously is but a partial statement. The Local Boards Ordinance,1898,, in section 59, contemplates the Secretary as one of the chiefexecutive officers. It classes the Secretary with such other officersas are “necessary for carrying out the purposes of the Ordinance."Local Boards are ‘^Boards of Health and Improvement." Theirpowers, duties, and functions are dealt with in chapter IX. of theOrdinance. The power given -to them to make by-laws is a fair"indication of the extensive scope of /their functions. The dutiesentrusted to the first accused m' connection with the control of foodare quite akin to those which -would have devolved upon him in.ordinary times. The control of rice was an emergency measure..But it seems to me that ascertaining what was the minimumquantity of food which would be required for their town, and takingmeasures for procuring it and distributing it. justly,, might well beregarded as coming within the functions of a -Local Board, apart fromany question of its by-laws. They- are .measures for the comfort-and convenience of the people of- the town. They fall within theduties of an officer of the. Board, just the same as the execution ofmeasures, taken foir the protection of the people-of a town during asudden outbreak of . plague* which' the first'- accused states in hisevidence were carried out by him in his official capacity When therewas such an outbreak and the sanitary.! authorities took action. .
At one stage of the argument I was inclined to think that the dutiesof the first accused-in Connection with the control of food shouldhave been assigned t'b'him by the Local Board', but that clearly wasa wrong view. The Chairman is the chief^ executive officer of theBoard. It is within his competence to instruct this accused to docertain things as part of bis duties as Secretary, provided they arenot foreign to the functions of a Local Board. I would, therefore,hold that the duties imposed upon arid performed by the first accusedin connection with food control were imposed upon and performedby him in his capacity of Secretary of the Ldeal Board-
( 23 lThere then arises the question whether as such he is a publicservant under section 19 of the Penal Code. In my opinion, he issuch a public servant. There can be itq question that the duties ofa Local Board are public duties, because they are duties which theyare under obligation in regard to the public within the Local Boardtown. Now, a Local Board has an office, owns property movableand immovable, levies rates and taxes, and the Ordinance expresslyrequires that it should keep; a book containing a list of persons liableto be .taxed, together with other particulars (section 39). TheSecretary must be presumed to be the person in .charge of the officeand of tiie books and records kept there. Under section 106 of- theOrdinance, all acts and notices which the Board or members areempowered to do or give by the Ordinance or any other Ordinancemay be done or given by the Secretary if he is authorized theretoby the Board. The Secretary of the Local Board is paid a salaryfor the performance of his duties, which are public, in the samesense as the duties of the Board are public. The Secretary of aLocal Board is, therefore, a public servant within the meaning ofsection. 19, in that he is an officer whose duty it is as such officer totake, receive, or keep the books of the Board, which are the propertyof the Board, also, presumably,'the movable property of the Board(section 19, eleventh). The duties of the first accused connectedwith the office of the Local Board are public, in that the public havethe righfe to the services of the first accused in obtaining from the firstaccused such information as they are entitled to receive, and also tothe inspection of the book of persons to be taxed.'
It was argued that he is a public servant, in that he ctoines withinsection 19, tenth. But I am unable to agree with that contention,because, in my opinion, that clause refers'"solely to officers connectedwith Government. There was-also an argument that he came undersection 19,.*ninth, in view of explanation 1. With this argument, too,I cannot agree, because the facts do not permit the first accusedbeing regarded as an “ officer of Government,” which is essentialbefore he can be brought under that-clause. Those words indicatethat the person must hold some office under Government, even thoughhe be not paid. I cannot regard explanation 1 as obviating thatrequirement.
Although the duties performed by the first accused were for thebenefit of the public, and even granting that it was the duty of thefirst accused “ to protect the public health, safety, or conveniencein the performance of. hip duties in assisting the Deputy Food Con-troller, apart from his official status as Secretary of the Local Board,I am unable to understand how it can be maintained that hewas an officer.” He held no office, any more than any inemberof the Social Service League or other voluntary helper, throughwhose assistance the Deputy Food Control carried out hisduties.
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I am, therefore, unable to hold that, apart from his duties asSecretary of the Local Board, the first accused was a public servantwithin, the meaning of section 19 of the Penal Code* My holding onthe first question which has been argued is that if the first accusedaccepted the payment of the sums of mon.ey in question, he did so asillegal gratifications in his capacity as a public servant, via., as theSecretary of the Local Board.
The appeals must now be argued in regard to the question whetherhe accepted such payments and was abetted by the second accused.
[The case was listed for argument on the facts, and the appeal wasdismissed.] .
THE KING v. SELLIAH et al