AMARATUNGE AND OTHERSCOURT OF APPEAL
GOONEWARDENfc. J,. AND PALAKIDNEB. J.
C A APPLICATION NO. 988/80 -NOVEMBER 19 and 20.1987.
Writ of Mandamus — Termination of services by Competent Authority of businessvested in Government, after prior interdiction and inquiry— Appeal to the PublicService Commission—Can Commission decline .to entertain appeal ? — PublicOfficer — Article 170 Of the Constitution — Public Administration Circular No.130.
The Petitioner was the Marketing Manager of the Wellawatte Spinning andeWeaving Mills Ltd. This business undertaking was vested , in the Governmentunder the provisions of the Business Undertaking (Acquisition) Act No. 35 of1971 and a Competent Authority (not a party to the application) was appointed.The Competent Authority interdicted the petitioner and on the same day framedcharges against him. Thereafter he nominated an Attorney-at-Law to hold aninquiry and on the findings of the Attorney-at-Law terminated the petitioner'sservices. The petitioners appealed to the Public- Service Commission but. itsSecretary notified petitioner that it had no authority to entertain the application.The petitioner filed this application for Mandamus against the Members of thePublic Servide Commission. N
of Heads of Department (Article 55 (2)) but could delegate these powers inrespect of other public officers to the Public Service Commission — Article55(3). Powers so delegated to the Public Service Commission may in respect ofeny category of Public Officer be subndelegated by it or. a Committee appointedby it to a public officer — Article 58(f ). Paragraph 2.11. of Public-ServiceCommission Circular No. 130 sets out the whole position in regard to.delegation, designating the authority that would exercise the powers in questionin respect of various categories of public servants.
The categories of officers contemplated in paragraph 2.11.1 of thecircular 130 are wide enough to include the petitioner and accordingly thePublic Service Commission would not be the authority capable of dismissing thepetitioner.
Even if petitioner is not in a category specified in the tabulation ofparagraph 2.11.1. of the Circular No* 130 the argument that these powersreferred to remained in the Public Service Commission cannot be accepted.
Whatever powers there may be that are exercisable by. the Public ServiceCommission they are necessarily powers derived by it oniy by a delegationthereof by the Cabinet of Ministers to it. If the sub-delegation by the PublicService Commission to a Public Officer did not include the category to which thepetitioner belonged in terms of the circular then the delegation by the Cabinet ofMinisters to the Public Service Commission did not include that category eitherand then these powers would still, be with the Cabinet of Ministers. Whateverview is. taken the powers in question were not with the'Public'ServiceCorhmissian.
APPUCATION for writ of mandamus against the Public Service Commission,i H.Lde Silva P.C. with Miss. L N. tie Silva, for Petitioner.
Sh&lyAziz D.S.G. with D.M. Karunaratne S.C.. for Respondents. .
pur. ativ. vutl
January 19. 1988.
The petitioner seeks an order of mandamus against the. 1 st to6th respondents, all members of the Public Service Commissionestablished under Article 56(1) of the Constitution. Hisapplication is made against the following background.
Prior to times material hereto he was employed as MarketingManager of the Wellawatte Spinning and Weaving Mills Lid.Colombo, a Company, duly registered under the CompaniesOrdinance. By gazette notification dated the 10th of March 1976
(Document A) the business undertaking of this Company wasvested in th6 Government with'effect from that date under theprovisions of the Business Undertakings (Acquisition) Act No. 35of 1971 and a Competent Authority was appointed in terms ofthe said Act to manage and run this business undertaking.
. The petitioner continued in service, when on the 13th ofDecember i 978 the Competent Authority (no party to thisapplication) interdicted him and on the same day framed chargesagainst him. The Competent Authority thereafter nominated anAttorney-at-Law to inquire into these charges and consequentupon findings after such inquiry adverse to the petitioner, he byhis letter of the 21st of December 1979 (Document B)terminated the services of the petitioner with effect from the 13thof December 1978.
On the 14th of February 1980 the petitioner appealed againsthis dismissal to the Public Service Commission (Document D)but by letter dated the 1st of April 1980 (Document E) theSecretary to such Commission acting under its direction notifiedhim that it had no authority to entertain such appeal and it is thatnotification which is assailed here.
At the hearing before us it was contended by learned Counselfor the petitioner .that the central issue here is whether thepetitioner was a 'public officer' (which in his submission thepetitioner at the material time was) within the .meaning of that *expression as defined in Article 170 of the Constitution. A publicofficer is there defined to mean a person who holds, any paidoffice under the Republic other than a judicial officer but notincluding certain designated persons of no importancehere. Mr. ‘Aziz fpr the respondents conversely contended that whatever wasthe position of the. petitioner vis a vis the Republic he was by nomeans a 'public officer' within the meaning of the definition inthe Constitution. It may no doubt be true to say that thepetitioner was paid Out of funds provided by the State and theargument for him was that the business undertaking acquiredunder this Statute, having no legal personality, by virtue of thedefinition in the Constitution all persons employed in the.undertaking had then to be 'public officers'. But whether that is
necessarily so I am not convinced.-The words 'paid officeunder the Republic' used in the definition to my mind suggestsomething more than merelf receiving a. pay Out of fundsprovided by Government. They tend to suggest, some kind ofcontractual ties giving rise to a particular relationship such.aS'of semployer and employee or master and servant but. forreasons which will become apparent later, it becomesunnecessary to embark upon a decision on this question.
The petitioner's contention is that by failing to consider hisappeal, the Public Service Commission declined jurisdictionand thus the respondents as members of that Commissionrendered themselves amenable to .mandamus. • Mr. Azizhowever argued that the Public Service Commission is a bodycreated by the Constitution and the duties imposed upon it areonly ithose set out in the Constitution. He contended that theonly duty cast in this nagard*is that arising out of the appellatefunction assigned to it by Article 58(2) which is with respect toany order made by a Public Officer to whom the. Public ServiceCommission or any Committee thereof has delegated itspowers. That not being the case here, he submitted that Article58(2)1 does not help the petitioner and that there is no otherprovision in the Constitution which casts a duty on the PublicService Commission, with respect to the petitioner,. Theapplicable principle being that there can be no appeal unless*such a right has been expressly .conferred by the Constitution.To that extent there is substance in his contention.
Mr. Aziz also put forward an argument based upon theassumption (not implying any concession to that effect) that ifthe petitioner was a public officer as claimed, then Article55(5) precluded any inquiry into or pronouncement upon, adecisioh.of the 'Public. Service Commission. Mr. de Silva's rivalsubmission with respect to this-was that this privativeprovision applies only to decisions actually made in theexercise of jurisdiction but has no application to instanceswhere the Public Service Commission has declinedjurisdiction, which in his .submission was vyhat the PublicService Commission did here.
These submissions to my mind could well be thought toinvolve interpretation of a provision of the Constitution theexclusive jurisdiction to do which ^conferred upon the SupremeCourt by Article 125(1).-The question whether the petitioner inthe circumstances in which he was placed was one who fellwithin the definition of 'public officer' ip Article 170 andtherefore whether the interpretation of the expression 'publicofficer’ vis a vis the petitioner is also one to which Article 125(1)has application is not altogether without difficulty either.
It is perhaps fortunate therefore that this applicatipn can bedisposed of. as indeed it has to be. without journeying pointlesslyinto areas possibly involving an interpretation of certain of. theprovisions of the Constitution which, if the need arose, wouldhave had to be done by the Supreme Court.
** i *»•
I will commence by assuming the stance the petitioner adoptsthat he is a ‘public officer’ and then proceed to consider whetherthe proper respondents have been brought before this Court byhim. To do so it becomes necessary to refer to* certain of theprovisions of the Constitution relating to the Public ServiceCommission and to consider Public Administration Circular No.130 (Document C) annexed to the papers filed by the petitioner,and relied upon by him as being applicable to him;
The powers of appointment, transfer, dismissal and disciplinarycontrol of public officers are vested in the Cabinet of Ministers—Article 55 (1).
The Cabinet of Ministers is precluded from delegating thesepowers in respect of Heads of Department — Article 55(2).
The Cabinet of Ministers is empowered to delegate’ thesepowers with respect to other public officers to the Public ServiceCommission — Article 55(3).
Powers so delegated to the Public Service Commission may inrespect of any category of public officers be sub delegated by itor by a Committee of it to a Public Officer — Article 58(1).
Against the background of these provisions PublicAdministration 'Circular No. 130 (Document C), the legality ofwhich the. petitioner himself claims, can appropriately beexamined.
That the provisions of Articles 55 to 59 of the Constitution.apply to all public officers other than (a) those appointed by thePresident (b) members of the armed services and (c) ‘ScheduledPublic Officers' as that expression is used in Article 114(6) of theConstitution is stated in paragraph 1:3 which goes on to providethat the circular would therefore apply to all public officers otherthan those included in these three categories. Not losing sight ofthe assumption made, that the petitioner was a public officer asclaimed by him. the circular must clearly be thought to. apply tohim and indeed it has been so contended on his behalf.
Paragraph 2:4 of the circular repeats what is contained inArticle 55(2) of the Constitution I have already referred to, thatthe powers of appointment, transfer, dismissal and disciplinarycontrol of Heads of Departments remain vested in the Cabinet ofMinisters.
Paragraph 2:5 provides that the Cabinet of Ministers willIdirectly deal' with matters of appointment transfer, dismissaland disciplinary‘control of (a) Additional Secretaries to Minister,(b) Government Agents in charge of Districts and (c) SeniorAssistant Secretaries to Ministries.
Paragraph 2:10 is as important and is reproduced thus "Inregard to other Public Officers, the Cabinet of Ministers hasdelegated the powers of appointment transfer, dismissal anddisciplinary control to the Public Service Commission and thePublic Service Commission has delegated its powers ofappointment transfer; dismissal and disciplinary .control toPublic Officers as detailed in Paragraph 2:11 below”.
Paragraph 2:11 .tabulates "the position, as far as the WholePublic Service.is concerned” based on,
T. Article 55(2) of the Constitution (prohibiting delegation ofpowers with respect of Heads of Department)
lioSri Lanka Law Reports
(198812 Sri LR.
The decision of the Cabinet of Ministers for the retention ofthese powers (with respect to certain categories of publicofficers namely Additional Secretaries to Ministries,Government Agents in charge of Districts and SeniorAssistant Secretaries to Ministries); .
The delegation of powers by the Cabinet of Ministers to thePublic Service Commission.
The- delegation of powers by the Public ServiceCommission to Public Officers,
and, with respect to the powers of appointment,, dismissal anddisciplinary control at paragraph 2:,11 : Vthe result is shown thus:
Category DescriptionAuthority ,
. 1., Heads of Departments, Cabinet of Ministers
Additional Secretaries toMinistries, GovernmentAgents, .Senior Assistant.
Secretaries to Ministries
Public Officers in Staff Secretary to pie MinistryGrade in the Combined ' of Public AdministrationServices
(a) Public Officers in Staff Secretary to the Ministry
Grade not in theconcerned/Head of the ,
. Combined ServicesDepartment if not under a
(b) Public Officers in Staff Secretary to the PresidentGrade in the AuditorGeneral's Departmentand the Department ofElections, not in the >
4.. Public Officers not in the Director, CombinedStaff Grade in.the . ServicesCombined Services
Public Officers not in Staff Head of the DepartmentGrade and not in theCombined Services
'■ The argument of Mr. de Silva, .Counsel for the petitioner wasthat upon an examination of these provisions, it becomes clearthat the petitioner fell into art amorphous category (to use hisexpression) and that while the circular applied to the petitioner,these powers with respect to him had to be exercised by thePublic'Service Commission itself. In my understanding of whatMr. de Silva claimed, if therefore the Public. Service Commissiondecided to decline to grant the petitioner relief byway of appeal,since the power of dismissal of the petitioner could have beenexercised in terms of the circular only by the Public Service'Commission itself, and certainly not by the Competent Authorityas he purported to do here, then.it was the duty of the PublicService Commission to go into the complaint of the petitionermade to.it and grant some redress on the footing that what theCompetent Authority did was tantamount to a -usurpation ofthese powers of the Public Service Commission vyith respect tothe petitioner. Mr. de Silva could not however contend that ifproperly these powers had to be exercised by any other (otherthan the Public Service Commission), the petitioner couldmaintain this application, nor did he endeavour to do so. In hisargument it is by reason of the petitioner..belonging to thisamorphous category, which he’ surmised could have been as aresult of such" category not having been envisaged when thedelegation was decided upon that these powers with respect to;the petitioner's category had to be exercised by the PublicService. Commission and not either by the Cabinet of Ministerson the one hand or by a Public Officer upon a sub-delegation bythe’Public Service Commission, on the other. *
But. let rrte assume as was contended, that the petitioner doesnot find a place in this tabulation and upon that basis examine ■the resultant position. When we (jointed out at the hearing thatparagraph 2:10 has the effect of sub-delegating in turn to PublicOfficers all powers delegated to the Public Service Commissionitself. Mr. de Silva argued that the sub-delegation would notapply to the petitioner as he did not find a place anywhere in thetabulation in paragraph 2:11:1. and thence it was that thesepowers remained with the Public Service Commission: Not tohave done so would have seen the bottom falling out of thepetitioner's case to the effect that the correct parties are beforethis Court as.respondents..
Is there then a basis for interpreting the circular to mean thatthere was a delegation of these powers by the Cabinet ofMinisters to the Public Service Commission with respect to thecategory to which the petitioner belonged, which, really is thefoundation of Mr. de Silva's argument here? Does the circularupon its language, expressly so provide? It certainly does not.Does it imply such a view? I do not think so either. The petitionerin my view is. limited to two provisions in the circular upon whichit- can be thought that he could rest hi$ contention here. Onesuch provision is contained in paragraph 2:5 which*, as I havealready referred to. is to'the effect that the Cabinet of Ministerswill 'directly deal' in the exercise of these powers with three.categories of public officers, namely, Additional Secretaries toMinistries. Government Agents in charge of Districts and Senior *Assistant Secretaries to Ministries. Can. this provision beunderstood to mean that these three classes are exhaustive ofthe categories with respect to which powers are not delegated,so as to secure delegation of powers with respect to all else tothe Public Service Commission? The words 'directly deal' hardly,lend themselves to such a meaning and can scarcely be thoughtto have been intended to exclude all other categories. Againstthe background of the terms of Article 55(1) of the Constitutionwhich makes clear that these powers with respect to all publicofficers are without exception and to begin with vested in theCabinet of Ministers the position contended for can hardly haveacceptance, based upon this provision.
The other provision which might at first glance be thought tolend (support to the petitioner's contention is that contained inparagraph 2:10 of the circular? It is'ta the effect that in regard to'other' public officers (that is public officers other than Heads ofDepartments. Additional Secretaries to Ministries, GovernmentAgents in charge of the Districts and Senior Assistant Secretariesto' Ministries) the: Cabinet of Ministers had delegated .these. powers to the Public Service Commission. Does that concludethe’question so as to drive one to think that with respect to thepetitioner’s category there was a delegation from the Cabinet ofMinisters to the Public Service Commission? As I see it the use of. the word 'other' ha£ to assume a significance that necessarilyleads up to that result only if the category to which the petitionerbeldnged was clearly contemplated up to the stage of delegationby the Cabinet of Ministers to the Public Service Commission, aview I do not form upon an examination of the language of thecircular. Indeed if It'was hot contemplated. having regard to thefurther. terms of this'provision 'one must also necessarilyconclude that “it was intended'that there'sh’ould be ’a sub-delegation ol these powers by the Publjc Service Commission toa ‘Public Officer.' If the category to which the petitioner belongedwas as I have to conclude, not in contemplation as beingincluded in the-delegation’ by the Cabinet of Ministers to thisPublic Service Commission, can it be said that the mere use ofthe word 'other' could bring about by a process of implication#the effect of including the petitioner's category among those withrespect to which there was a delegation by the Cabinet ofMinisters to the Public Service Commission? I think not. In theinterpretation of statutes/ an intention is sometimes attributed tothe legislature when (it expresses ,non}e. This canon ofconstruction sometimes referred to as 'implied enactment’ .hasclear limitations. As Maxwell in 'The Interpretation of Statutes"11th Edition at page 348 points out". . . V….. this extention ofan enactment is confirmed to its strictly necessary incidents orlogical, consequences". Even if one. were to. extend theapplication of this maxim to the circular as one could perhaps doif it were treated asa statutory instrument I find it impossible tosay that there is'justification for implying this effect. Its languagejust does not lend itself to such a view.. I am of the view that theprovisions of paragraph 2:0 and 2:10 of the circular matter taken
separately or in combination do not help the petitioner here, andin so saying I keep in mind that whatever powers there may bethat are exerciseable by the Publie Service Commission they arenecessarily powers derived by it only by virtue of a delegationthereof by the Cabinet of Ministers to it. To state the resultantposition shortly in other terms, if the sub-delegation by the PublicService Commission to a Public Officer did not include thecategory, to which the petitioner belonged, in terms of. thecircular the delegation by the Cabinet of Ministers to the PublicService Commission-did not include that category, either! andthen, these powers with respect to the category to which thepetitioner belonged had to remain with the Cabinet of Ministers.Any other view I think savours of artificiality in thinking and givingeffect to such view would be. as I see it, to distort the intent ofthe circular read and unddrstood as a whole., '
. The conclusion then in my view is inescapable that whoeverelse it was that had the authority to exercise these powers(assuming here of course that the petitioner's claim that he is apublic officer is correct) the Public Service Commission wascertainly not it. The wrong. parties against whom in anycircumstances no relief can be granted have been broughtbefore this Court and this application must,stand dismissed.withcosts.
ARULAMPALAM V. AMARATUNGE AND OTHERS