CHANDRASIRI v. THE ATTORNEY-GENERAL

009-SLLR-SLLR-1989-V-1-CHANDRASIRI-v.-THE-ATTORNEY-GENERAL.pdf


SCCh'andrasiri v. The Attorney-General (Fernando. J.)
115
CHANDRASIRI
V.
THE ATTORNEY-GENERAL
SUPREME COURT
TAMBIAH J. H. A. G. DE SILVA J-. AND FERNANDO J. •
' S.C. APPEAL NO. 80 of 1986;
S.C. (S.L.A.) APPLICATION NO. 165 of 1986- ' ■
A. NO. 647 of 1982 (F)
C. GALLE NO. 4279/M
JUNE 28 AND OCTOBER 20. 1988. .•
Constitution 1978. Article 55 (5) and Constitution 1972. Article 106 (5) —Dismissal — Ouster — Pleasure principle — Jurisdiction of Court — Date ofappeal.
Held ,
(1) While the provisions of the Constitution should be broadly and liberallyinterpreted so as to conserve rather Than take away the rights of the citizen,including his right to invoke .the jurisdiction of the Courts, neverthelessfundamental principles and the express provisions of the Constitution cannot bedeparted fr.om in the course.of" liberal " interpretation. In considering the scope
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of" ouster " of the jurisdiction of the Courts effected by Section 106 (5) of theConstitution of 1972 it must necessarily be borne in mind that one fundamentalprinciple of service under the State is that, public office is held at pleasure,unless expressly provided otherwise. The ouster clause was'intended to giveeffect to the " pleasure principle It prevents the ground of dismissal beingquestioned : the ouster clause complements that principle by taking away thejurisdiction of the Courts to inquire into dismissals.'
(.2) But an order or decision made by an official having no legal authority to doso. is in law null and void and Article 55(5) and Article 106(5) is no bar to the. Court declaring it a nullity.
(3) In the case before Court (dismissal of a' Grama Sevaka appointed after1.1.1977 in terms of a circular) there is no such want of authority or mala fideas would suffice to render the termination ultra vires or otherwise a nullity. Theexpression "dismissal" in Article 106 must include every mode of severance of• the employer-employee relationship effected by or on behalf of the employer..
•The'termination in. question was not ultra vires or a nullity, the ouster clauseapplied, and the District Court had no jurisdiction-to inquire into, pronounce orotherwise call in question the dismissaf of the Appellant.
' *
.(4) Unless there are circumstances indicating that the date set out in the date■ stamp is incorrect, that date must be assumed to be the date on which thepetition of appeal was filed in. preference to the date of the journal entry which is. not necessarily the date of lodging the papers. The date of the date stamp showsthe appeal was filed in time.
Cases referred to:
Abeywickrama y. Pathirana — [T 986], V SRI LR 1 20. 136.-139.
Elmore Perera v. Jayawickrema — [ 1985] 1 SRI LR 285. 301
'' ■ Bandaranaike v. Weeraratne — [1981] i SRI-LR 10. 16.' •
.'Abeywickrama v. Pathirana —■ '[..1986] 1 SRI LR 120. 155-7; (also
[1984] 1 SRI LR 21 5. 21
■ y 5. '. , -Wijesiri v.. Siriwardene —. [ 1982] 1 SRI LR 171,178.
APPEAL from.judgment of the Court of Appeal.
Prins Gunasekera with R.. K. Sureshchandra. and K. Abhayapata for thePlaintiff-Respondent-Appellant. '-
Shibly Aziz. Deputy. Solicitor-General, with N. Kariapper. S.C.. for thePefendant-App.ellarit-Respondent.,'1
Cur. adv:yult.
SCChandrasin v. The Attorney-General (Fernando. J.j.<117
November 11. 1988.
FERNANDO, j;
The Appellant was selected for appointment as a GramaSevaka with .effect from t.2.1 977, .and was informed that hewould be trained fgr a period riot exceeding three months..Thereafter, the Government,Agent, Goalie, by letter,.dated 29.4.7.7,appointed him as a Grama Sevaka in-the-Ga'IJe District with effect,from 2.5.77,; and set .out the terms and conditions ofappointment; the appointment was permanent-and pensionable,and was subject to 'a three-year'probationary, period’. It-wasfurther stipulated that ’his services coufd'be terminated' either ,during or at the end of.that period: if..h‘is services during thatperiod were unsatisfactory' and . that if his'.services’ weresatisfactory, he would be confirmed‘at the'end of that period interms of the Establishments C.od'e. T■
Soon after the. General Election of T977. newly; elected■ Members of‘Parliament had expressed their-’Objections to1 theappointment of Grama SeVakas made after- T8.5777 ’(the da'tb'ofdissbTutioh of the NlatignaJ State AssemblyjVA Ministry of PublicAdministration Circular dated 8.8.77 sent to alf GovernmentAgents directed them to-revoke, all appointments of-GramaSevakas made after 18.5.77. The.Appellant's appointment did.not fall within-the scope -of •’that C ircu.larr Jits"' application for thatpost haying been made in ■response-,to a Gazette -notification- inOctober -1975-.' Another .Circular, dated- 30.8;77- was sent.conveyi;ng,-a decision of the-Minister-■directing the "revocation ofall appointments of Grama-Sevakas made after'i, 1/77. TheGovernment Agent. Galle. by letter ’dated 5:9.77-informed theAppellant that his "-services were- " terminated •" with immediate. •effect, and referred'to the aforesaid Circular dated130‘.8:.77.
luisiadmitted'that at the relevant time'Tbe-ap'pO.intingiaiiithbrityChad the power to terminate the' services of a public- officer-.without assigning, any reason, during.-the probationary period : •this–condition of employment'.'.was (and ■ do.ntinues to -be)-recognised by the-. Establishments.-Code.-and' was expresslymentioned in the aforesaid Gazettemotificafion.' i
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The Appellant instituted action in the District Court, praying fora declaration that the termination of his services was unlawful,ultra vires, unjust and null and void, and/or for damages in asum of Rs. 60.000.
The question for determination by us relates to the defencepleaded iri the answer, that the Court had no jurisdiction byreason of theprovisions of Section 106 (5) of the Constitution of1972 :
No institution administering justice shall have the power orjurisdiction to iqqui/e into, pronounce upon or in anymanner call jn question any recommendation’, order ordecision of;the Cabinet of Ministers, a Minister, the StateServices Disciplinary Board, or a state officer, regarding anymatter concerning appointments, transfers, dismissals ordisciplinary matters of state officers. "
By an , amended answer. Article 55 (5) of the 1978Constitution was also pleaded, and the issue was raised at'thetrial that the Court-had'no. jurisdiction to hear and determine theaction' by reason, of . that Article : no reference being made to,sectionT1 06 (:5J. .; – .• ,,.
v ft- had-thus, to, be determined whether the " termination- ' of theservices of the. Appellant was a " .dismissal " within the meaningof ,section l06-'(5)': if so, no Court had jurisdiction to inquireinto, .pronounce uponj-or in-any manner call in question such•dismissal.'The Appellant contended-that "dismissal" did notinclude -• "■termination ■ that ".dismissal." . implied -that theseverance of the „ employer-employee relationship was onaccount-.of'misconduct or fault, whereas " termination " did not.
■The, ilearped District Judge determined the matter by referencepnly'to .Article 55 (5) of the 1978 Constitution ; he held thauthe"'termination,” ,p.f .the Appellant's services- did not.constitute a'^dismissal' "..i.andj held, that the Courts had jurisdiction.. Havinganswered other, fs.sues.vin favour of ithe – Appellant, he enteredjudgment in favour of, the Appellant. •
sc
Chandrasiri v. The Attorney-General (Fernando, J.)
119
In the Court pf Appeal, Counsel for both parties agreed that the.relevant constitutional provisions that were operative'at the timeof the appointment and termination of t|he Appellant Were thoseof the 1972 Cohstitution, and invited-t-he Court to act on thebasis that the learned District Judge had interpreted section’ 106
of the 1972 Constitution in his judgment, and to hear theappeal as though it were an appeal from .a decision pertaining' toan interpretation of that section. The'Court of Appeal-held that,although the two provisions were similar,-the learned District-Judge had in fact interpreted Article 55 (5), and that in view of'his failure to act in. terms of Article 125, the judgment wouldhave to be set aside on that ground alone.
The Court of Appeal .further held,'following Abeywickrama v.Pathirana (1 j, that, under section 1 0;6 (5); it is only in origin, thatGovernment service is-contractual ; that once appointed a stateofficer acquires a status to which the rights and duties imposedby public law attach ; and that all state officers held office/duringthe pleasure of the President :• ,
r. .• .
The general principle in public service is that a.•public-officer holds office at pleasure. The constitutional doctrine,that public officers hold, office, during pleasure has two.important consequences :
The Government has a right to regulate or determine the
tenure of its .employees at pleasure notwithstandinganything in their contract to the contrary :_ .
Secondly the, Government has no power to restrict .orfetter its prerogative power of terminating the servicesof the employee at pleasure, by any contract made with
. the employee..".
Thus the express terms of the contract cannot override thefundamental basis of the tenure of office of public officers-Altho.ugh that decision related to Article 55(1) of the..1978.Constitution. these observations are equally applicable to section107 (1), Indeed, the only difference is -that Article 55 (5)introduced a significant exception : that though public office is
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held " at pleasure powers of appointment, transfer, dismissal. and disciplinary control must not be exercised in violation offundamental and language rights, and that in respect of any such' .violation a public officer may invoke the jurisdiction of this Court,under Article 1 26 (1 )•: Elmore Perera v. Jayawickrema (2).
Accordingly, it was rightly held that not only had the judgmentof the learned District Judge to be set aside, but that theAppellant's action had also to be dismissed.
Having held that the Appellant was liable to be dismissed. " atpleasure.", from the public service, the Court.of Appeal did notdecide whether the " termination " of' the Appellants servicesamounted to' a " dismissal ." within the. meaning of section 106(5). and. if so whether section 106 (5) ousted tb:. jurisdiction of' the District Court. ■•
Counsel 'for the Appellant contended that section 106 (5)„ being a provision ousting the jurisdiction of the Courts ought tobe strictly construed, so as to limit.the extent of the ouster; that" dismissal " should be confined to those modes of severance ofthe employer-employee relationship arising from the allegedmisconduct or fault of the office'r ; and.that " dismissal " shouldnot be .held to include " termination "of services without any: such allegation of misconduct or fault. He relied heavily upon theSinhala' words' used in the letter of termination and.in the.Constitution.land upon certain provisions of the EstablishmentsCode : he referred to Chapter V of thp Establishments Code nowin force which, we were assured; was in these respects the same, as the provisions in force at the relevant time for his submissionthat there were three modes in which the employer could bringthe'.femployef-employee relationship to an end :" termination " ofthe-appointment or services of an officer holding a temporary or. probationary ^appointment .(section. 6)./" vacation of post " ’byoffipers who .abserft-themselves from duty without leave (section■.7), and!'"■•dismissal'"-.of-officers for misconduct (section 8).Different consepuen'cesflowed from each of these : fo.r instance,a-'i dismissed^1'officer could.-not be re:employed. whiie o'newhose^service's''.'Ai'.ere- terminated- while oh. probation could bere-employed”.
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SCChandrasiri v. The Attotney-Genera! (Fernando. J.)
The Deputy Solicitor-General submitted that the-rules set outin the Establishments .Code regarding the delegation and the-exercise of the powers of dismissal and disciplinary control hadbeen formulated under the provisions of section 106 (3) r that'these provisions referred, to were thus within .the ambit of." dismissal and. disciplinary control "arid therefore" termination " by the employer was one mode of" dismissal • j
While the provisions of the Constitution should be-broadly andliberally interpreted, so as to conserve rather than take away therights of the.citizen, including his right ;to invoke the jurisdictionof .the; Courts, nevertheless fundamental, principles and-expressprovisions of the. Constitution-rcannot be'-departed -from, in; thecourse-of " liberal " interpretation.- In considering, the. scope ofthe " ouster " effected by section 106 (-5). we have necessarily to .bear in mind that one fundamental principle of service under theState .is that public-office-is held at-pleasure.-unless expresslyprovided otherwise. The ouster clause was intended to give effectto-the: " pleasure principle-"-,,and .not-.to whittle it dpwn. Theapplication of the " pleasure principle " prevents:, the-ground ofdismissal being questioned.; the ouster-clause'complements thatprinciple by taking: away the jurisdiction of theCourts, to,inquireint-o dismissals :-,on–other grounds,: such as- that, rules and"procedures had not-been complied-with. Further. " appointment,transfer, dismissal'and disciplinary control " in section 106 (5)'cannot be considered- in isolation : those words occur insubsections. (1). (2), (3) and (4). as well; and, similar words havebeen used in the corresponding.Constitutional provisions in.theOr.defs-in-Council of-.1.931 and'.1946. If" dismissal.:" in section-106 (1) is restrictiyely interpreted so as not cover every, kind oftermination of. services by or, on behalf of the employer, seriousanomalies and omissions would resultvpn that view.'who whouldbe legally, authorised , to " terminate."- the- services of – aprobationary officer ? Dr to issue a " vacation of post" notice ? Is" compulsory . retirement:" something, other ,than "-dismissal ".and if so who can..make such an.order; ?. If "r dismissal " is given alimited, meaning, how could the Cabinet, under section 106 (3)..'make rules^ regarding’". termination ". " vacation of post ", and“compulsory retirement"? Of course.' fermi'natioR. by, the.employee would not in any event be.'included and can be the
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subject of inquiry, by a Court, as held in Abeywickrama v.Pathirana (1).
The scope of such ouster clauses has been considered inprevious decisions of this Court. Thus the preclusive clausecontained in Article 81 (3) has been given a wide interpretation
. possibly because.that clause concerned legislative action aswell. In regard to section 106 (5). Wanasundera. J.. observed inhis dissenting judgment in Abeywickrama v. Pathirana (1) :
Every person acquainted with the post-independenceperiod-.of our history, especially the constitutional and legalissues'that cropped up during that'period. would know howthe actions of the Government and the. Public ServiceCommission dealing with practically every'aspect'of theircontrol- Over public officers were challenged and taken tothe courts.-. A stage came when the Government found itself■ practically-hamstrung by injunctions and court orders and'not given a free hand to run'the public service and therebythe administration as efficientlyas it would wish. The 1972reforms came undoubtedly as a reaction to this. Theuthinking behind the framers of the Constitution was that thepublic service must be made the exclusive domain of theExecutive without interference from the courts. "
While these'observations may correctly pinpoint the object ofsection 106. it 'is clear from the majority decision in the samecase that the scope of section 10'6 (5) was too widely stated. Anecessary qualification to the ouster effected by-Article 55 (5)vVa.s recognised.'in terms equally applicable to section 106 (5) :an order or decision; made, by an official, having no legal. .authorify'to do'So. ism law null and void. and Arficle 55 (5) is nobar to a court declaring it.to .be'a-nullity. (4)'
The ouster clause applies only to a " recommendation.’order ordecision ", of certain-specified persons and authorities.'in regardto "appointment, transfer, dismissal and disciplinary control ",and- not to- any other'matters, and' certainly not to all matters,conhe'cted with the public service. In the present case', there wasan order Or deci.sTon"by a state officer — the Government Agent
SC .Chandrasirrv. The.Attomey^Genera!(Fernando. J.j'123.
Galle— in-regard to a.matter concerning dismissal. Although thelearned District Judge answered in-the''affirmative the followingissue —
" Was the said notification [dated' 5.9.77 by..the GovernmentAgent Galle (a) malicious, (b') in'valid. (c) unlawful?" .
■neither the documents produced nor the ' oral.- evidence–established or. suggested any such yvant of authority o.r mala:tides as would suffice to render, the-termination ultra vires orotherwise a nuNity.
Consistently with the legislative history of this phrase, and thelong-established " pleasure principle and the need to interpretsection 106 se'lf-consistently.'llam of the. view dismissal " mustinclude every mode of severance of the employer-employeerelationship, effected by or on behalf of the employer. Thetermination in question was not ultra vires or.a nullity, the ousterclause applied, and the District Court..had no jurisdiction toinquire into-, pronounce upon or otherwise-call in question thedismissal of the Appellant.
Counsel for the Appellant finally submitted .that- the .petition ofappeal of the Respondent (in the District Court) had been filedout of time. It had been filed in time if the date'of filing was takento be that set out in the date-stamp appearing- on the petition ofappeal, but not if. as contended for the Appellant, the date of thejournal entry was regarded as.the da.te on which the petition ofappeal was fijed. This subfnissi.on/which is in effect a preliminaryobjection to the appeal beingentertaioed by the Court‘of Appeal,was not made in limine in the Court of Appeal, but only afterjudgment had'; been- reserved. Th any event, unless there arecircumstances, indicating’that. the date set out in the date stampis ihcorreet that date must be'assumed to be the date on.whichthe petition of appeal was filed ; the party tendering the petitionof appeal has no, control over the process whereby the petition of' appeal reaches the relevant record and • the; -making of the■appropriate entry therein. There is no reason to' assume.that in. the normal course such entry would have been made the verysame .day. and the date of'the Journal, entry thus cannot be
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presumed to be the date on which the petition of appeal was infact filed. This submission must fail.
The appeal is dismissed, but — as the Appellant's dismissalwas without'fault, and as an important question of law wasinvolved —1 without costs.
tambiah! j., – I agree.
h. A. G. de silva. J . — I agree.
Appeal dismissed.