036-NLR-NLR-V-69-H.-M.-J.-HERATH-Appellant-and-V.-PANDITHA-Respondent.pdf
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AL.LES, J.—Heraih v. Panditha
1966Present: Alles, J., and Siva Supramaniam, J.H. M. -1. HERATH, Appellant, and V. PANDITHA, RespondentS. C. 3 SOj1963—I). C. Colombo, 45772/M
Civil Procedure Code—Section 461—“ Public officer
Notieo of action in terms of section 461 of the Civil Procedure Code need notbe given to a public officer in a case where he has acted not in his official capacitybut as Secretary of a body which, though it receives funds from the Govern-ment and is pledged to carry out the policies of the Government, is independentand non-governmental.
A.PPEAL from a judgment of the District Court, Colombo.
0. Ranganathan, Q.C., with Siva Rajaratnam. K. Sivananthan and
Chakradaran, for the plaintiff-appellant.
H. W. Jayewardene, Q.C., with B. J. Fernando and S. S. Basnayake,for the defendant-respondent.
Cur. adv. vult.
November 8, 1966. Alles, J.—
The plaintiff instituted this action against the defendant on two causesof action claiming damages in a sum of Rs. 10,000 with legal interest andcosts. On the first cause of action he alleged that the defendant wrong-fully, maliciously and without just cause discontinued the servicesof the plaintiff from the post of Assistant Editor of the Sinhalese Encyclo-paedia ; on the second cause of action he claimed damages for allegeddefamatory statements made and published by the defendant to themembers of the Finance Committee of the Lanka Bauddha Mandalaya.In his answer the defendant pleaded that at all material times he was apublic officer and entitled to notice of action under section 461 of theCivil Procedure Code and that in the absence of such notice the plaintiffcould not maintain his action. This matter was raised as a preliminaryissue at the trial, and after hearing evidence and the submissions of
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Counsel, the learned District Judge made order answering the preli-minary issue in favour of the defendant and dismissed the plaintiff’saction with costs. The present appeal is from this order.
By a Cabinet Conclusion of 16th September, 1954, the Governmentdecided to inaugurate celebrations in connection with Buddha Jayantito commemorate the 2500th anniversary of the passing away of the LordBuddha. Elaborate arrangements were made by the Government toconduct these celebrations on a large scale and create a spiritual awakeningof the Buddhist religion in the country. Proposals were made for theestablishment of a Chair of Buddhism at the Ceylon University; theappointment of a Lanka Bauddha Mandalaya to make representationsto the Government and undertake all matters connected with BuddhaJayanthi ; the publication of recognised Buddhist texts ; the publicationof an authoritative Buddhist Encyclopaedia for international use anda host of other matters connected with the fostering and advancementof the Buddhist religion. The appointment of a Lanka Bauddha Manda-iaya formed an important part of the Government plans. It was anon-governmental body consisting of the Sangha Sabha (Council ofBhikkus) and the Gihi Sabha (Coucil of the laity). The Mandalaya hadits own written constitution. There was provision for the appointmentof various sub-Committees to deal with particular subjects ; a CentralExecutive Committee, consisting of the Ch airman and Secretaries of thesub-Committecs, the two Secretaries of the Sangha Sabha and Gihi S..bhaand eight other members appointed by the Prime Minister to supervisethe work of the sub-Committees; a Finance Committee to control theexpenditure of funds allocated to the sub-Committecs by the CentralExecutive Committee and the appointment of office-bearers includinga General Secretary. The Government had voted large sums of money,amounting to nearly 14 lakhs, for the expenses connected with thecelebrations, and naturally desired to keep some kind of check on theactivities of the Mandalaya. In 1955, Buddha Jayanti was one of thesubjects allocated to the Minister in charge of Local Government andCultural Affairs (PI) and under section 22 of the Constitution of theMandalaya the General Secretary had to be an officer of the Ministry ofHome AfTairs appointed with the approval of the Prime Minister. Hewas to be in overall charge of the administration of the Mandalayaactivities, the Secretary of the Central Executive Committee, a memberof all sub-Committees, responsible for the accounting work of theMandalaya and in charge of the receipt of all funds and the making ofpayments out of the sums voted by the Government.
The first General Secretary of the Mandalaya was Dr. A. W. P.Guruge of the Ceylon Civil Service and he was succeeded by the defend-ant, who was also a Civil Servant, thenattached to the Departmentof Cultural Affairs. As a Civil Servant he was a public officer subjectto Governmental regulations, he was appointed the General Secretaryby the Government with the approval of the Prime Minister and hissalary was paid from Government funds. The defendant functioned as
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Secretary of the Mandalaya until it was wound up in September, 1957.When he commenced his functions as General Secretary he was for sometime working in the Ministry of Home Affairs and later transferredto the Department of Cultural Affairs, the head of which was N. Q. Dias.When the Mandalaya was wound up he was appointed AssistantDirector of Cultural Affairs. He was paid an honorarium of Rs. 2000from the Mandalaya funds when he ceased to function as GeneralSecretarj'.
The plaintiff was appointed to the post of Assistant Editor, SinhaleseEncyclopaedia, with effect from 1st May, 1955 (vide Letter of Appoint-ment D 13). The letter was signed by the defendant as General Secretaryof the Lanka Bauddha Mandalaya. According to his terms of appoint-ment, the plaintiff was required, after a period of six months probation,to enter into a contract with the defendant as Secretary for a period of4 years ; if the plaintiff’s work or conduct was found unsatisfactory,the General Secretary was empowered, in consultation with the Editor,to terminate the plaintiff’s services without further notice. Copies ofthe plaintiff’s letter of appointment were sent to the Finance Committeeand the Sinhalese Encyclopaedia Committee. According to D 14,which is a minute addressed to the defendant ac Secretary, the Editor-in-Chief had brought to the notice of N. Q. Dias that the plaintiff’s workwas unsatisfactory and Dias discussed the matter with the PermanentSecretary and having decided to take action to discontinue the plaintiff’sservices, Dias directed the defendant to send the plaintiff a letter ofdiscontinuance on the ground that the plaintiff’s work and conduct wasunsatisfactory. In pursuance of this directive, the defendant sent theletter D 15 to the plaintiff on 14th December, 1955 discontinuing hisservices with immediate effect, signing the letter as Secretary of theMandalaya. It would appear from D 16, the minutes of the meeting ofthe Finance Committee on July 1957, that the Finance Committee hadapproved of the termination of the plaintiff’s services because there is arecord in the minutes that “ the plaintiff was not entitled to any pay-ment in lieu of notice because of the reasons which led to hisdiscontinuance ”.
It has been urged by Counsel for the plaintiff-appellant that interminating the services of the plaintiff, the defendant was not actingas a public officei and was only functioning as Secretary, required tocarry out the decisions of the Mandalaya. There is no evidence that theplaintiff was dismissed by virtue of any resolution of the Mandalayaand it would appear from D 14, D 15 and D 16 that the decision toterminate the plaintiff’s services was one that was decided upon by the
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Editor and the Director of Cultural Affairs, and subsequently ratified bythe Finance Committee. The letter D 15 was apparently sent by thedefendant on the directions of Dias and it was argued that in doing sothe defendant was purporting to act in his official capacity in complyingwith the directions of his superior officer. The question however thatarises for decision is whether Dias had any authority to give any directionsto the defendant and whether the defendant, when he sent the letterD 15, was purporting to act in his official capacity as a public servant.The plaintiff was an employee of the Mandalaya, paid from the Mandalayafunds and his letter of appointment was signed by the defendant asSecretary of the Mandalaya. The Constitution of the Mandalaya (D 2)would seem to indicate that the Mandalaya was an independent body,pledged no doubt to carry out the policies of the Government but havingfull control to manage its own affairs and employ its own officers. UnderRule 26 of the Constitution “ all orders given to the General Secretaryshould be in the form of a resolution passed at sub-Committee meetings.”Presumably therefore all appointments to offices in the Mandalaya andany discontinuance of its employees must be sanctioned by resolutionsof the Mandalaya and its decisions carried out by its General Secretary.In doing so it could not be maintained that he was functioning as apublic officer; he would only be carrying out the directions of theMandalaya in his capacity as Secretary. I do not think the fact that he-was admittedly a public officer, paid out of Government funds andsubject to Government control, makes any difference. In carrying outhis duties as Secretary, he was not responsible to the Government. Insending the letter D 15 to the plaintiff he was not purporting to act asa public officer in his official capacity and it is not open to him totake shelter under section 461 of the Civil Procedure Code and plead thathe is entitled to notice under that section.
The learned District Judge in dismissing the plaintiff’s action hasreferred to several authorities which have also been cited before us.I do not think however that these citations are very helpful since thequestion, whether the defendant in this case was acting as a public officerin his official capacity or not, must be decided after a consideration ofthe facts in the instant case. I am therefore of the view that nonotice under section 461 was necessary. The plaintiff’s appeal is allowedwith costs and the case remitted to the District Court for adjudicationon the remaining issues.
Siva Sopramaniam, J.—I agree.
Appeal allowed.
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