084-NLR-NLR-V-77-D.-SIRIWARDENA-Petitioner-and-D.-W.-FERNAMDO-Assisitant-Commissioner-of-Co-op.pdf

In terms of the said by-law by letter dated 6:4.72 the 1st respon-dent nominated the petitioner, D. E. Perera, and S. A. C. de Saramas members of the said ‘ Committee ’. S. A. C. de Seram died on
and for the remaining period, that is till 6.4.73, the 4threspondent was appointed-
The petitioner’s case is that on 1.1172, by letter marked 1E ’the 1st respondent, without any lawful authority, illegally,improperly and wrongfully purported to remove the petitionerfrom the said ‘ Committee ’. He states that the purported removal
PATHER ANA, J.—Siriwardena v. Fernando4?i
is in contravention of the by-laws governing the said Society. Thepetitioner further states that the 1st respondent proceeded there-after by letter dated 1.11.72 to nominate the 2nd and 3rd respon-dents as ‘ Committee ’ members. In terms of the said by-law andby the same letter he appointed the 2nd respondent as thePresident and the 3rd respondent as the Vice-President of thesaid Society. The petitioner alleges that these appointments arein contravention of the by-laws of the said Society.
The 1st, 2nd and the 3rd respondents have filed affidavit, inwhich they state that the 1st respondent had acted lawfully inremoving the petitioner and D. E. Perera from the said‘Committee’ on 1.11.72 under by-law 29 (qp.) and further thatthe 1st respondent acted within his right in appointing the 2ndand 3rd respondents to the said Committee, under by-law 29 (^.)for the remaining period, that is till 6.4.73.
The petitioner also stated that the 1st respondent had acted atthe instance of influential politicians who resented the petitioner’sconduct in taking disciplinary action against certain members ofthe .said Society, and, therefore, the 1st respondent had acted malafide in removing the petitioner and D. E. Perera from the saidCommittee and the offices they held. The 1st respondent in hisaffidavit denied the allegation of mala fide and set out the factsand circumstances under which he stated he acted bona fide inthe interests of the said Society.
Mr. Nimal Senanayake, appearing for the petitioner, made hissubmissions on the following grounds: — Firstly, that the1st respondent had only the power of nominating, three personsand not the power of appointing three persons as members of the‘ Committee ’. His position is that the 1st respondent merelynominated three persons while the act of appointment was doneby the Society at a general meeting under the by-laws of the saidSociety. His argument was that the use of the word ‘ nominate ’could never be equated to mean ‘ to appoint ’. Secondly, he sub-mitted that under the by-law in question the 1st respondentcould not remove or dismiss any member of this so called‘ Committee ’ as under the relevant by-law (24) of the saidSociety, the executive committee could only be appointed by theSociety at a general meeting, and the power of dismissal underthis by-law is also vested in the Society, which could do so onlyat a general meeting. Further, by-law (30) of the Society setsdown the conditions under which a member ceases to be amember of the executive committee. Thirdly, he submitted thatin dismissing the petitioner the 1st respondent had acted malafide, for the reasons stated in the affidavit. Fourthly, his submis-sion was that even granting that the 1st respondent had the

472PATHIRANA, J.—Siriimrdenu v. Fernando
power of removal he could do so only after giving an opportunityto the petitioner to show cause and as this was not done therewas a violation of the principles of natural justice, and in parti-cular the rule of audi alteram partem.
Mr. Senanayake’s position therefore is that the petitioner andD. E. Perera still continue to hold the offices which are nowbeing unlawfully usurped by the 2nd and 3rd respondents.
Mr. Kulatunga, learned State Counsel, appearing for the1st respondent, while maintaining that the 1st respondent hadacted legally within his powers, raised a preliminary objectionthat a writ of quo warranto was not available on the ground thatthe 2nd and 3rd respondents were not holding office of a publicnature. He further took up the position that the petitioner hadalternative remedies under the Co-operative Societies Law, No. 5of 1972, as by section 36 (2), any. dispute arising out of the inter-pretation of a by-law of a registered society should be referred tothe Registrar for his decision, and his decision is final andconclusive in law. He also submitted that under section 60 (2) ofthe same law where any question arises as to whether a memberhas ceased to be a member or officer of the Society that questionshall be decided by the Registrar whose decision shall be final.The remedy by quo warranto was therefore not available topetitioneer.
There appears to be considerable misconception in the letterswritten both by the petitioner and the 1st respondent and in theaffidavits filed by the parties in this application as to the exactnature of the office to which the 2nd and the 3rd respondentswere appointed or nominated by the 1st respondent under the

purported powers of by-law 29

in other words to perform the powers, duties and functions of theexecutive committee of the Society.
plated an ‘ Executive Committee ’ to which the 1st respondenthad the power to nominate or appoint three persons, but it onlygave the 1st respondent the power to appoint three persons
to function “ like the executive committee
Before I deal with the submissions made by Counsel in thiscase, I would first like to clarify the meaning and purpose of
act. Although the letter of appointment by the 1st respondentdated 6.4.72 in respect of the petitioner and the letter dated1.11.72 removing the petitioner from office, and the letter ofappointment dated 1.11.72 in respect of the 3rd and the 4threspondents refer to appointments to the ‘ Executive Committee ’,in fact, these appointments were never meant to be appointments
never contem-
to the “ Executive Committee By-law 29
under -which the 1st respondent had purported to
by-law 29
P AT HI RAN A, J.—Siriwardena v. Fernando
475
This by-law was framed by the Society under the Co-operative Societies Ordinance pursuant to a resolution passedat a general meeting of the said Society convened by the 1strespondent on 27.1.70. In fact, the petition of the petitionercorrectly sets out the position as it refers to the Society havingresolved that “ all the powers, duties and functions of theCommittee of the Society will be vested for a period of oneyear in three members nominated by the 1st respondent Theminutes of the annual general meeting (Al) which contain thisresolution fully support this meaning and purpose of by-law 29

for any ambiguity as to the 1st respondent’s power to appointthe three persons. He had the power to appoint directly thethree persons to perform the functions, powers and duties ofthe Executive Committee. The by-law did not restrict hispower merely to nominate the three persons while the actualact of appointment was to be done by the Society at a generalmeeting. In my view, in the context under which this by-lawwas passed, with the background of the resolution of the generalmeeting held on 27.1.70, the word “ nominate ” in the by-lawcan only mean to ‘ appoint ’, and, in fact, one of the dictionarymeanings of the word ‘ nominate ’ is to * appoint ’.
I shall next deal with the preliminary objection raised bythe learned State Counsel that the petitioner is not entitledto the remedy by way of quo warranto as the 2nd and 3rdrespondents do not hold office of a public nature. In thisconnection it will be useful to understand the origin and thescope of the Writ of Quo Warranto.
In early times the writ of quo warranto was in the natureof a writ of right for the Sovereign against any subject whoclaimed or usurped any office, franchise or liberty to inquireby what authority he supported his claim in order to determinethe right. It was a civil writ at the suit of the Crown.
In Darley v. The Queen (1845)-—12 Cl. & Fin. 520—a reportof which is found in 8 English Reports (House of Lords, p. 1513),the House of Lords adopted the opinion delivered by Tindal,C.J. who expressed the enlarged scope of the Writ in the oft-quoted words—
“ Afler the consideration of all the cases and dicta onthis subject, the result appears to be, that this proceedingby information in the nature of a quo warranto will lie forusurping any office, whether created by charter alone, orby the Crown, with the consent of Parliament, provided
!»*—A 14764(5/75)
in my mind leaves no room

The wording of by-law 29
4T4
I ATHI-RAJN'A, J.—Siritvardena v. Fernando
the office be of a public nature, and a substantive office,not merely the function or employment of a deputy orservant held at the will and pleasure of others
This case lays down the principle that while formerly aquo warranto was held to lie only where there was anusurpation of a prerogative of the Crown, or of a right offranchise, a proceeding by information in the nature of a quowarranto has long since been extended beyond that limitand is a remedy available to private persons within thelimits stated by Tindal C.J. and subject always to the discretionof the Court to refuse or grant it. The test therefore to beapplied whether a writ is available is whether there has beena usurpation of an office of a public nature and an officesubstantive in character, that is, an office independent in titleand not merely the function or employment of a deputy ora servant held at the will and pleasure of others. These samerequirement have been adopted by this Court by Poyser,S.P.J., in Deen v. Rajakulendren—40 N. L. R. 25.
No doubt, in England, the information in the nature of aquo warranto has been abolished. Instead, section 8 of theAdministration of Justice (Miscellaneous Provisions) Act, 1938,provides that when a person acts in an office to which he wasnot entitled to and a quo warranto information would formerlyhave lain against him, the High Court can grant an injunctionrestraining him from so acting, and, if necessary, declaring theoffice to be vacant. But, nevertheless, the old rules and thesubstantive laws continue to apply.
Learned State Counsel submitted that the office in respectof which the writ is sought in this case is not one of a publicnature. It was conceded by both sides at the argument thatthis office is one which has been created under a statute. Aby-law enacted under a statute is a written law within themeaning of section 2 (gg) of the Interpretation Ordinance.
In Queen v. Guardians of St. Martin’s (1851)—17 QB. 154,a report of which is found in CXVII, English Reports, 1238—itwas held that quo warranto lies for an office though notimmediately derived from the Crown (as where Commissionersare empowered by Act of Parliament to direct that such officebe created) ; if it be an independent substantive office ; if itbe of a public nature. Here the office in question was that ofa Clerk to the guardians elected by the guardians under anorder of the Commissioners by virtue of a statute. This casediscusses what the office of a public nature is. Lord Campbell,C.J. said,—
“ Then, is the office of a public nature ? We must lookto the functions, and compare them with those which were
P ATHIRAN A J.—Siriwardena v. Fernando
476
held to constitute such an office in Darley v. The Queen(12 Cl. & Fin. 520). The House of Lords laid down nocriterion in that case ; but they held that the office therein question was public within the rule they laid down ; andI think the present office is not distinguishable. Whetherthe district for which it is exercised be a parish, or ahundred, or several parishes in a union, appears to me toform no ground of distinction, if it be an office in which thepublic have an interest
Patterson, J. observed—
“ Then, is it a public office ? He proceeded to answer thequestion as follows—
“ The question here is not whether the body for whichthe officer acts is public ; it is whether his duties are ofa public nature ; and, as the exercise of them materiallyaffects a great body of persons, I think they are so".
Coleridge J. recited the duties of the clerk, which were,among other things,—
“ to communicate to the persons engaged in the relief ofthe poor throughout the parish all orders and directionsof the commissioners and guardians, and to give instructionsfor the execution ; to conduct the elections of guardians;to be the channel of communication between the board andparish officers and the commissioners upon questions whichmay arise respecting the administration of the poor lawor other parochial business ; and to manage the communi-cations also between his board and all other poor lawboards or parochial bodies throughout the kingdom ”.
He proceeded to hold—
“ Therefore, without going further, or deciding anything
as to the other cases, which must be taken as they arise,
I entirely agree that, in this instance, the remedy by quowarranto applies
Erie, J. observed—
“ If the execution of an office secures the proper distribu-tion of a fund in which a body of the public have an interest,the office may be deemed public
In Bndlei) v. Sylvester (1371). 25. Law Times Reports, 459, itwas held that a quo warranto was available to show cause by
476
PATH 1 KAN A J.—Siriicardena v. Fernando
what authority a person acted as clerk to the school board ofborough appointed under a statute. Cockburn, C.J. observed—
“ Upon consideration of the case of Darley v. The Queen,and the provisions of this statute, it may be that a writ ofquo warranto may be applicable to the office of clerk to aschool board
In Chandrasena v. S. F. de Silva—63 N.L.R. 308—it was held thata writ of quo warranto does not lie against the Director of Educa-tion if he purports to exercise the functions of a Manager of anunaided school contemplated in Section 5 of the Assisted Schoolsand Training Colleges (Special Provisions) Act No. 5 of I960. Itwas pointed out that the Statute nowhere refers to a Manager ofan unaided school, and section 6 of Act No. 5 of 1960 whichimposes certain duties in respect of the administration of anunaided school, had imposed those duties not on the Masager ofsuch school but on the proprietor. The proprietor of an unaidedschool may, for his own purposes, of for the convenience of ad-ministration employ a person as Manager. But, where a person isso employed he does not become the holder of office of a publicnature. It was therefore held that an office of Manager of anunaided school was not one created by the statute, and furtherthat a writ of quo warranto did not lie as the office was not ofa public nature.
In the case before me the 3rd and 4th respondents have beenappointed under a by-law framed under the Co-operative Socie-ties Ordinance. The growing importance of the Co-operativemovement with its impact on the economic life of the countryanl the recognition given to it even by the Constitution of SriLanka under Article 16 (2) as one of the principles guidingstate pol cy, bring the co-operative organisations and those whoadminister its affairs under the spotlight of public interest. Theactivities of co-operative societies particularly societies like theNattand ya Coconut Producers Co-operative Society Limitedhave for their object the promotion of the economic interests ofthe members and the public have an interest in these activitiesas they directly or indirectly affect them. Public Funds are usedfor the promotion of their activities and it is in evidence fromthe Minutes (Al) of the annual general meeting of this Societythat a loan of twelve lakhs of rupees from public funds had beenapproved for this society. The activities of the said society aresupervised by a Government Department. The three persons whohave been appointed by the 1st respondent to function andperform the duties of the Executive Committee are personsresponsible for the administration of the affairs of the Society
PATHIRANA J.—Siriuardena v. Fernando
477
and to do the work of the Executive Committee. Section 75 ofthe Co-operative Societies Law defines the ‘ Committee ’ as agoverning body of a registered society to whom the managementof the affairs is entrusted. The offices therefore held by the 2ndand 3rd respondents are those in which ‘ the public have aninterest’ and the “exercise of them materially affects a greatbody of them ” and the “ execution of the offices secures theproper distribution of a fund in which the body of the publichave an interest
In my view, therefore, the 2nd and 3rd respondents hold officeof a public nature. I, therefore, overrule the preliminary objec-tion raised by learned State Counsel.
Mr. Senanayake made his next submiss'on that in the eventof the 1st respondent having the power of dismissal he could havedone so only after having given the petitioner an opportunity toshow cause. This he submitted was a violation of the principleof audi alteram partem. He strongly relied on the well-knowncase of R'dqe v■ Baldwin (1963), 2 A.E.R. 66. In this case therelevant statute provided that “ the watch committee may at anytime dismiss any borough constable whom they think negligentin the discharge of his duty or otherwise unfit for service ”.
N. G. Fernando, J. in Kulatunga v. The Board of Directorsof the Co-operative Wholesale Establishment and another—66 N. L. R. 170, at 172—has summarised the principles governingthe rule of audi alteram partem in relation to dismissals laid downby Lord Reid in Ridge v. Baldwin under 3 caitegories. Theyare—
“ (1) The pure case of master and servant, where (in thewords of Lord Reid) the contract can be terminated“ at any time and for any reason or for none ”, andwhere the only remedy would be damages for breachof contract if there is term nation not warranted bythe contract. In such cases there is no question of aneed to hear the servant in his defence, and the princi-ple audi alteram partem does not apply.
The case of an office held at pleasure in which it has
always been held that such an officer has no right tobe heard before he is dismissed, this because the personhaving power of dismissal is not bound to disclose hisreasons.
The case of dismissal from an office where there must be
something against a man to warrant his dismissal. Itis in this case that the principle of audi alteram partemapplies ”.
478
PATHIRAJSTA J.—Siriwardena v. d'erm ,><Ju
In Ridge v. Baldwin it was decided that before it can bedecided that there has been a neglect of duty it is prerequisitethat the question should be considered in a judicial spirit. InKulatunga’s case the petitioner was appointed to the staff of theCo-operative Wholesale Establishment constituted under ActNo. 47 of 1949 (Chap. 126). Tire Board of Directors of the Estab-lishment wrote to the petitioner informing him that his appoint-ment (as Security Officer in the Establishment) was terminatedwith effect from a certain date. So far as Chapter 126 affectedthe Petitioner the only provision in the Act was that inSection 11 :— “ Every appointment to the staff of the Board shallbe made by the Board ”. There was no provision as to dismissalof a person in the position of the petitioner, and if any statutoryprovision did apply it was to be found in the InterpretationOrdinance (section 14 (f) ) which declared that the power toappoint shall include the power to dismiss. It was held in thiscase that the duty to act judicially did not arise and that in theabsence of any express provis:on in the statute (Chap. 126)specifying either the grounds of dismissal or the procedure to befollowed prior to a decision to dismiss, the Board had no duty toinform the petitioner of the grounds of his dismissal or to givethe petitioner an opportunity of being heard, or to act judiciallyin reaching its decision. H. N. G. Fernando, J. cited Lord Hodsonin Ridge v. Baldwin at p. 112 where he observed,—
“ I entirely accept the reasoning of the Lords Justices (theCourt of Appeal) that if a statute gives an unfettered rightto dismiss at pleasure without more, there is an end of thematter ”.
H. N. G. Fernando, J. further observed—
“ It will be seen therefore that in the view of Lord Reida provision which confers a power of removal simpliciterand does not prescribe either grounds for removal or theprocedure to be followed, is regarded as being equivalentto the power to remove from an office held at pleasure. Withmuch respect, I cannot think of any consideration which is inreason opposed to this view ”.
In Sri Pragnarama Thero v. The Minister of Education—71
N.L. R. 506—the question arose before My Lord the Chief Justicewhether the rule of audi alteram partem should be observed bythe Minister for the dismissal of the Vice-Chancellor of theVidyalankara University who was appointed by the Minister inaccordance with the provisions of section 42 of the HigherEducation Act, No. 20 of 1966. The argument of Counsel for thepetitioner in this case was that sub-section (6) fixes a term offive years as the period during which a person appointed to be
PATHIRANA, J.—Siriwardena v. Fernando
479
Vice-Chancellor will hold office and that no authority has thepower to limit that period of office. Sub-section (6) itself, itwas argued, provided for two means by which the period maybe reduced, one being the event of resignation by the personappointed, and the other being the eventuality that the personappointed, may complete his 65th year before the end of hisfive-year term. The sub-section it was argued did not contem-plate any other means by which the term of office can be reduced.It was held that there would be much force in these argumentsif sub-sections (6) and (7) were the only provisions of law whichare apparently applicable. But that was not the case, sinceconsideration must necessarily be given to the InterpretationOrdinance which applies for the construction of all Acts ofParliament. Section 14 of that Ordinance provides in paragraph
that—
“ for the purpose of conferring power to dismiss, suspend,or re-instate any officer, it shall be deemed to have beenand to be sufficient to confer power to appoint him ”.
The Chief Justice referred again to the House of Lordsdecision in Ridge v. Baldwin, and said that the rule of audialteram partem must be observed in the third class of case, meansonly that where a statute provides for dismissal on some specificground or after observance of some specific procedure, an officermust be heard in defence unless the need for such a hearing isexpressly excluded by the prescribed procedure. Ke went onto observe,—
“ Moreover it seems to me that in every case where theunfettered power of dismissal from an office which s. 14 (f)of the Interpretation Ordinance confers is exercisable, thatis to say where the Legislature has said nothing concerningthe ground or mode of dismissal, the office is held atpleasure or is at the least held on terms equivalent to theterms of an office held at pleasure ”.
The Chief Justice held that the Petitioner was validly removedfrom office by the Minister, and that there was no necessity toobserve the rule of audi alteram pastern.
Applying the principles in these cases to the facts of theapplication before me, I am of the view that under this by-lawthe 1st respondent had the power to appoint the petitioner to
480
PATHIRANA J.—Siriwardena v. Fernando
the office in question. The by-law itself does not provide fordismissal, nor for dismissal on specific grounds or after observ-ance of some specific procedure. Under these circumstances, Ihold that the 1st respondent need not have observed the rulesof natural justice and in particular the rule of audi alterampartem before he dismissed the petitioner. In my view applyingthe provisions of section 14 (/) of the Interpretation Ordinance,the 1st respondent, having had the power to appoint the peti-tioner to the office in question under by-law 29 (qi), he had thepower also to dismiss him. It is inconceivable that the 1strespondent should not be given the power of removal in thiscase. If the three persons or any of them who were appointedto function as the Committee were guilty of acts of dishonestyor acting detrimental to the interests of the Co-operative Society,surely, in these circumstances, the Commissioner should havethe power of removal, and, he, therefore, certainly can act underSection 14 (/) of the Interpretation Ordinance in order to dismisssuch persons from their offices. I am fortified in advancing thisargument by the observations made by My Lord the Chief Justicein Sri Pragnarama Thero v. Minister of Education—71 N. L. R. 506,at 509—
“ In considering this argument, I have unfortunately totake into account an unpleasing possibility, howevertheoretical it may be, that a person appointed as Vice-Chancellor can conceivably become permanently of unsoundmind or be convicted of a crime. If Counsel’s argument becorrect, then there would be no lawful means of removingfrom office a person whose continuance therein has becomecompletely objectionable in the public interest. I cannotagree that a Court should attribute to Parliament anyintention to exclude the operation of s. 14 (/) of the Inter-pretation Ordinance in such an event ”. I,
I,therefore, hold that the 1st respondent who had the powerto appoint the petitioner to this office under by-law 29 (qx) hadalso the power to dismiss him ; he had also the power thereafterto appoint the 2nd and the 3rd respondents under the same by-law for the remaining period, that is till 6.4.73. The unfetteredright of dismissal given to the 1st respondent by by-law 29 (<fi)read with section 14 (f) o£ the Interpretation Ordinance shutsout the necessity for the observance of the rule of audi alterampartem or the consideration of the relevance of mala fides, ifany, on the part of the 1st respondent.
Ceylon Transport Board v. Wijeratne
481
I must also express the view that section 36 (2) and section60 (2) of the Co-operative Societies Law No. 5 of 1972 do notprovide alternative remedies which are equally effective andappropriate, as contended by learned State Counsel, had thepetitioner’s contention been upheld.
I dismiss the application of the petitioner with costs fixed atRs. 105 payable to the 1st respondent, Rs. 105 payable to the2nd respondent, and Rs. 105 payable to the 3rd respondent.
Rajaratnam, J.—I agree.