TITTAWJ2LL.A. .T.—Xagcswa-on v. Republic of Sri Lanka
1978 Present: Wimalaratne, J., Vythialingam, J. andTittawella, J.
VISWALINGAM APPIAH NAGESWARAjNT, Accused-Appellant
THE REPUBLIC OF SRI LANKA. RespondentS. C. 3/77—D. C. Colombo 329/Bribery
Bribery Act, section 19—Acceptance of a gratification as a reward forperforming an official act—Accused entitled to practice medicinefor gain—When acceptance of money can become an “ unautho-rised gratification ” in these circumstances—Medical Ordinance(Cap. 105) as amended by Act No. 16 of 1965, sections 36, 41 (1)—•Effect of circular laying down conditions of private practice.
The accused-appellant was an Assistant Medical Practitioner(Apothecary) attached to a Rural Hospital and was convicted oncharges of bribery. He had prescribed medicine to an outdoorpatient who had come to the hospital during working hours andaccepted a sum of Rs. 5. The facts were not contested, but it wassubmitted that the appellant being a person entitled to practicemedicine for gain under section 41 (1) (a) of the Medical Ordi-nance, he had not committed any offence under the Bribery Act.The letter of appointment issued to the appellant by the Directorof Health Services, the terms and conditions of which the appellanthad’ accepted, laid down that the appellant could not engage inprivate practice except with his authority and that the appellantwas subject to the various regulations set out therein. The RuralHospital of which the appellant was in charge was one of thestations where private practice was permitted and the circularnotifying this also laid own, inter alia, as a condition that suchpatients should not be examined in this institution or in the Apothe-cary’s bungalow and that nc fee for gratification be accepted fromoutdoor patients who call at the institution.
Held: That the conviction of the appellant must be affirmed. Theappellant performed an official act by examining a patient at theRural Hospital during offide hours and in the circumstances of thiscase his acceptance of money is clearly unauthorised. What wasaccepted therefore became an “ unauthorised gratification ”. Theacceptance of the money was in violation of the circular issued bythe Director of Health Services the conditions of which the appel-lant’s terms pf employment bound him to observe. The acceptanceof money by the appellant was therefore “ not authorised by theterms of his employment”.
Case referred to : *
Mohamed Auf v. Queen, 69 K.L.R., 337.
A PPEAL from a judgment of the District Court, Colombo.
S. A. Pullenayagam, with M- Somasunderam, A. Chinniahand Mrs■ S. Gnanakaran, for the .appellant.
Asoka de Z. Gunawardene, Senior State Counsel, for . theAttorney-General.
Cur. adv. vult.
May 18, 1978. Tittawella, J.
The accused-appellant, an Assistant Medical Practitioner(Apothecary) attached to the Pulasthigama Rural Hospital hasbeen convicted on two charges of bribery and sentenced, to con-current terms of six months’ rigorous imprisonment and to afine of Rs. 200 in default of which a further two months imprison-
TITTAVKI,LA, J.—A'(Hjeewuran o. Jbijttihllc of Sri Ixinka~'J7
ment has been imposed. He has also been directed to pay apenalty of Rs. 5.
The appellant was trapped on the 28th November, 1973, byofficers of the Bribery Commissioner’s Department accepting asum of Rs. 5 for prescribing medicine to an outdoor patient whohad called at the hospital during working hours and whose namehad been entered in the Out Patient’s Department Register. Theofficers who took part in the detection and the Superintendentof Health Services, Matale, within whose jurisdiction the RuralHospital falls were witnesses for the prosecution. The appellantneither gave evidence nor called any witnesses on his behalfat the trial.
The facts were not contested in appeal and the only matterargued at the hearing was a question of law. It was submittedthat the appellant is a person entitled under section 41 (1) (a)of the Medical Ordinance to practice medicine and surgery forgain. He w'as therefore permitted in law' to receive payment forprofessional services rendered and as such the appellant had notcommitted any offence under the Bribery Act. Reliance wasplaced on the case of Mohavied Auf v. The Queen, 69 N.L.R. 337,where H. N. G. Fernando, C. J. at page 343 stated—
" that the offence defined by section 19(c) is that of accep-ting an unauthorised gratification, and one of the ingredientsof the offence is the fact that the gratification accepted is anunauthorised one. ”
For a consideration of this submission it becomes necessary toexamine the relevant provisions of the Medical Ordinance, theterms and conditions of appointment of the appellant and thecirculars touching this question issued by the Director of HealthServices from time to time in relation to the provisions of theBribery Act.
Under section 36 of the Medical Ordinance as amended by theMedical (Amendment) Act appearing at page 100 of Vol. I ofthe 1967 supplement to the Revised Legislative Enactments noperson other than a medical practitioner shall be entitled torecover any charges for any medical or surgical advice. Thereis however a saving provision for Government apothecaries insection 41 (J) of the Ordinance in the following terms—
“ Nothing in this Ordinance shall make it unlawful for aGovernment Apothecary actually employed in the publicservice as an apothecary and for the time being in chargeof a dispensary or hospital to practice medicine and surgeryfor gain”
The appellant is a Government Apothecary employed in thepublic service and was at the relevant time in charge of tins
TITTAWELLA, J.—Nageswaran v. Republic of Sri Lanka
Rural Hospital. His letter of appointment dated 25th October,1951 issued by the Director of Health Services was produced .bythe prosecution. Paragraphs (4) and (8) of finis document arerespectively as follows : —
(a) You shall not be entitled as of right to engage yourselfin private practice except with my authority. Theconditions under which such authority may be grantedshall be determined by me in accordance with thecircumstances of the various stations. Unauthorisedprivate practice will lead to an Officer’s discontinuancefrom service.
(b) In the discharge of your duties you will be subjectin addition to the above conditions to the following(a) Public Service Regulations (b) Financial Regu-lations (c) Departmental Orders (d) General Ordersand (e) such other orders: as may from time to timebe issued.
On the 28th October, 1951, the appellant signified his writtenacceptance of the appointment on the terms and conditions statedin the letter of appointment referred to at above. In August 1961private practice for Government Apothecaries in certain speci-fied areas was permitted and the list of the specified stationswas notified in Gazette No. 14125 of the 1st August, 1964. ThePulasthigama Rural Hospital was one such station and the condi-tions of private practice were contained in a circular dated 26thAugust, 1964 issued by the Director of Health Services. Thesubstance of this circular could be summarised as follows : —
the Apothecary in charge was entitled to private
the examination of the patients should not be under-
taken in the Institution or in the Apothecary’sbungalow,
under no circumstances should a fee or gratuity be
accepted from out-patients who call at the Institution,
no drugs, dressings or medicines should be issued to
private patients exceptpn cases of extreme urgency.
Section 19 (a) of the Bribery Act which is the basis for count1 of the indictment penalises a public servant for accepting agratification as a reward for performing an official act. Section19 (c) of the Bribery Act which is the basis for count 2 penalisesa public servant for accepting a gratification which he is notauthorised to receive by law or the terms of his employment.Regarding count 1 there cannot be much, doubt tfnat the appel-lant when he examined the patient at the Rural Hospital duringoffice hours having entered the patient’s name in the OutPatient’s Register was performing an official act. Whilst it may
Reckitt <k Colman Ltd. v. Petris
be contended that under section 41 (1) of the Medical Ordinanceit was not unlawful for him to practice medicine for gain theacceptance of money in the circumstances was clearly unautho-rised and what was accepted becomes an “ unauthorised grati-fication” as contemplated by H. N. G. Fernando, C. J., in thecase of Mohamed Auf v. The Queen. I am therefore of the viewthat the submission of the learned Counsel for the appellant isuntenable.
The position becomes much clearer when count 2 of the indict-ment is considered. The acceptance of the money in the circums-tances was clearly in violation of the circular issued by tfaeDirector of Health Services. The terms of employment of theappellant bound him to observe the conditions laid down in thatcircular. The acceptance of the money was in direct contraven-tion of this and therefore “not authorised by the terms of hisemployment ”. Whilst the contravention of this circular couldbe the subject of an appropriate disciplinary inquiry the BriberyAct has made such a contravention punishable under section19 (c) of the Act and the conviction on count 2 is also in order.
The convictions and sentences are therefore affirmed and theappeal is dismised.
Wimalaratne, J.—I agree.
Vythialingam, J.—I agree.Appeal dismissed.
VISWALINGAM APPIAH NAGESWARAN, Accused-Appellant and THE REPUBLIC OF SRI LA