022-NLR-NLR-V-55-M.-SANTIA-PILLAI-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
GUNASEKARA J.—Santia Filial v. The Attorney-General
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1953Present: Gratiaen J. and Gunasekara J.M. SANTIA PILLAI, Appellant, and THE ATTORNEY-GENERAL,,
Respondent
S. G. 258—D. C. Colombo, 19055jM
Public servant—Liability to dismissal at pleasure of Crown—Ceylon (Stale Council)Order in Council, 1931, Art. 86—Effect of Royal Instructions.
By Article 86 of the Ceylon (State Council) Order in Council, 1931,
“ (1) The appointment, promotion, transfer, dismissal, and disciplinarycontrol of public officers shall be vested in the Governor, subject to any Instruc-tions given under TTis Majesty’s Sign Manual and Signet and, in so far as con-cerns the Auditor-General, to the provisions of Article 83.
(2) The Governor may, subject to such Instructions and provisions as afore-said, and -with the approval of the Secretary of State, delegate to such publicofficers having authority in or over Government departments as he shall thinkfit, subject to such conditions as he may prescribe, the appointment, promotion,transfer, dismissal and disciplinary control of officers who are not in receipt ofannual pensionable emoluments exceeding such sum as may be specified insuch Instructions. ”.
,Held, that there is nothing in Article 86 that is inconsistent with the conditionthat is ordinarily implied in the terms of employment of a public servant otherthan the Auditor-General, that he holds office only during the pleasure of theCrown. Consequently a public servant who is aggrieved by any failure to complywith the procedure for dismissal prescribed by the Royal Instructions mustseek bis remedy by administrative process and has no remedy by action in acourt of law.
A pPT^AT, from a judgment of the District Court, Colombo,
S. J. V. Ghelvanayakam, Q.G., with V. A. Kandiah and A- Nagendra,for the plaintiff appellant.
G. F. Jayaratne, Crown Counsel, for the Attorney-General,respondent..
Cur, adv.. vult.
June 5, 1953. Gunasekaha J.—
This is an appeal from a judgment of the District Court of Colombodismissing an action brought by the appellant, Mr. Santia Rillai, againstthe Attorney-General for the recovery of a sum of Rs. 11,458 • 24 whichhe claims as arrears of salary and allowances due to him as a servant ofthe Government. He was appointed to the Government Railway ClericalService in 1920. On the 23rd February, 1945, the Governor ordered thathe should be retired for inefficiency. This order was" officially communi-cated to him*on the 4th March, 1945, and he "ceased to work as a publicservant from the following day. It is contended for him that the orderwas not made in accordance with the procedure prescribed by law and istherefore void and inoperative, and that he is entitled to a declarationthat he continues to be a member of the Public Service or should betreated as continuing to be one.
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G UNA SEKARA J.—Sanlia Pillai v. The Attorney-General
The procedure that is said to have been contravened is laid down incertain Royal Instructions to the Governor in these terms :—
“ the grounds of intended dismissal shall be definitely stated in writingand communicated to the officer in order that he may have full oppor-tunity of exculpating himself, and the Governor shall investigate thecase with the aid of the head of the department in which the officershall then be serving.”
The circumstances in which the order in question was made werethese. As a result of an audit report there was a departmental investiga-tion of alleged irregularities in the work of the Jaffna railway stationstaff. In December, 1943, the Governor appointed a retired memberof the Ceylon Civil Service, Mr. T. W. Roberts, “ to act temporarilyas Investigating Officer, Jaffna Railway Station Inquiry, to completethe inquiries in connection with the irregularities discovered at the Jaffnarailway station and to hold a face to face inquiry and furnish a report ”.Mr. Roberts had had considerable experience as a magistrate and districtjudge and had been the District Judge of Galle at the time of his retirementfrom the Civil Service, having held that office for the preceding nine years.After a preliminary inquiry Mr. Roberts advised that certain chargesshould be framed against the appellant, and his recommendation wasplaced before the Attorney-General. In July, 1944, eight charges inwaiting, approved by the Attorney-General, were served on the appellant.Mr. Roberts inquired into them in September and submitted his recom-mendation to the General Manager of Railways, who was the head of thedepartment. The inquiry was held in the presence of the appellant, and hecross-examined the witnesses who wrere called in support of the charges,and also gave evidence on his own behalf and called witnesses. On the 4thDecember, 1944, the General Manager of Railways forwarded Mr. Roberts’sreport to the Public Services Commission, whose function it was, in termsof Article 89 of the Ceylon (State Council) Order in Council, 1931, toadvise the Governor in the exercise of his powers of dismissal and discipli-nary control of public officers.
The Governor’s order was communicated to the General Manager ofRailways by a letter from the Chief Secretary dated the 28th February,1945, which referred to the General Manager’s communication to the PublicServices Commission. This letter states that “ His Excellency the Gover-nor finds Mr. Santhiapillai guilty of the first five of the eight chargesframed against him and has ordered that Mr. Santhiapillai should beretired for inefficiency and that a reduction of 15% should be madein his pension. ”
It is contended for the Attorney-General that there w'as no irregularityin the procedure that was adopted ; and that even if there was, the ap-pellant held office at the pleasure of the Crown and therefore would haveno cause of action in a court of law but only a remedy by administrativeprocess.
It is settled law that “in a contract for service under the Crown, civilas well as military, there is, except in certain cases wliere it is otherwiseprovided by law, imported into the contract a condition that the Crown
GUNASEKAHA J.—Satllia Filial v. The Attorney-General- 85
las the power to dismiss at its pleasure ” : Gould v. Stuart1; andpublic servants bold their offices on this condition “ not by virtue ofany special prerogative of the Crown, but because such are the termsof their engagement, as is well understood throughout the public serviceShenton v. Smith 2. It is contended for the appellant that the power•of the Crown to dismiss at pleasure was restricted by the terms of Article86 of the Ceylon (State Council) Order in Council, 1931.
Article 86 is in these terms :
“ (1) The appointment, promotion, transfer, dismissal, and disciplinarycontrol of public officers shall be vested in the Governor, subjectto any Instructions given under His Majesty’s Sign Manualand Signet or through the Secretary of State and, in so far asconcerns the Auditor-General, to the provisions of Article 83.
(2) The Governor may, subject to such Instructions and provisionsas aforesaid, and with the approval of the Secretary of State,delegate to such public officers having authority in or overGovernment departments as he shall think fit, subject to suchconditions as he may prescribe, the appointment, promotion,transfer, dismissal and disciplinary control of officers who arenot in receipt of annual pensionable emoluments exceedingsuch sum as may be specified in such Instructions. ”
The Instructions that had been given to the Governor under the RoyalSign Manual and Signet at the material time included certain instructionsabout the appointment, promotion and dismissal of public officers.Instruction VIII laid down the conditions subject to which the Governormight delegate his powers. Instruction IX provided that all commis-sions to be granted by the Governor, or by any public officer actingunder his authority, to any person or persons for exercising any officeor employment should, unless otherwise provided by law, be granted•during the pleasure of the Crown only. Instruction X prescribed theprocedure for dismissal of public officers. Mr. Chelvanayakam contendsthat these instructions are given statutory force by Article 86 of theOrder in Council and that the power of the Crown to dismiss a publicservant at its pleasure is restricted by the provisions of Instruction X.He seeks in this way to draw an analogy between Article 86 of the Orderand section 240 of the Government of India Act, 1935, which providesas follows :
240—(1) Except as expressly provided by this Act every personwho is a member of a civil service of the Crown in India, orholds any civil post under the Crown in India, holds office duringHis Majesty’s pleasure.
(2) No such person as aforesaid shall be dismissed from the serviceof His Majesty by any authority subordinate to that by whichhe w!Ss appointed.
;(3) No such person as aforesaid shall be dismissed or reduced in rankuntil he has been given a reasonable opportunity of showingcause against the action proposed to be taken in regard tohim”
1 (1896) A. C. 575, Privy Council.* [1895) A. C. 229, Privy Council.
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GTJNASJ3K ARA 3.—Santia Pillai v. The Attorney-General
It was held by the Privy Council in The High Commissioner for India v.Lall1 that sub-section (3) was mandatory and constituted an expressprovision of the Act which qualified the provisions of sub-section (1)and provided a condition precedent to the exercise by the Crown of itspower of dismissal. A provision somewhat similar to sub-section (3)had previously been contained in rules made under section 96B (2) ofthe Government of India Act, 1919, and sub-section (1) of that sectionhad provided as follows :
“ Subject to the provisions of this Act and of rules made thereunder,every person in the civil service of the Crown in India holds office
during His Majesty’s pleasure,but no person in that service
• may be disrpissed by any authority subordinate to that by which he wasappointed,”
Referring to this proviso the Privy Council observed in Rangachari v.Secretary of State 2 that it is “ manifest that the stipulation or provisoas to dismissal is itself of statutory force and stands on a footing quiteother than any matters of rule which are of infinite variety and can bechanged from time to time ”, and held that a dismissal of a public officerby an authority subordinate to that by which he was appointed wastherefore bad and inoperative. In another case, Venkata Rao v. Secretaryof State 3, which was decided at the same time, the Privy Council heldthat a failure to comply with the procedure for dismissal prescribed by-rules made under subsection (2) of section 96B of the Act of 1919 did notgive any right of action to a dismissed officer, although there had been“ a serious and complete failure to adhere to important and indeedfundamental rules ”. Contrasting the provisions of section 96B of theAct of 1919 with those of section 240 of the Act of 1935 the PrivyCouncil held in LalVs Case 1 “ that the provision as to a reasonable-opportunity of showing cause against the action proposed is now put onthe same footing as the provision now in subsection (2) of S. 240, whiehwas the subject of decision in 64 I. A. 40 2 and that it is no longer-resting on rules alterable from time to time, but is mandatory and neces-sarily qualifies the right of the Crown recognised in S. 240 of 1953 ”.Mr. Chelvanayakam’s contention is that in Ceylon, Instruction X ofthe Royal Instructions to the Governor similarly qualifies Instruction IXand that both are incorporated in Article 86 of the Order in Counciland therefore have statutory force. He also contends that, alternatively,if the Royal Instructions cannot be read as a part of Article 86, the ap-pointments which the Governor is empowered by that Article to makewould not be subject to the condition referred to in Instruction X, thatthe offices are to be held only during the pleasure of the Crown.
I am unable to accept either of these contentions. The instructionsto which the Governor’s powers are made subject, whether given underthe Royal Sign Manual and Signet or issued through a Secretary of State,are no more a part of the Order in Council than the rules referred to insection 96B of the Government of India Act, 1919, are a part of thatsection. Nor is there anything in Article 86 that is inconsistent with. 1
1 A. I. B. 1948 P. C. 121.2 A. I. R. 1937 P. C. 27 ; 64 I. -4. 40.
3 (1937) A. C. 248 ; 64 I. A. 55.
Subramaniam v. Pakkiyaledckumy
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the condition that is ordinarily implied in the terms of a public servant’semployment, that he holds office only during the pleasure of the Crown.On the contrary, the provision that, except in the case of the Auditor-General, the powers given to the Governor are vested in him “ subjectto any Instructions given under His Majesty’s-Sign Manual and Signetor through the Secretary of State ” indicates that all public officers otherthan the Auditor-General hold office subject to the pleasure of the Crown.A contrast is furnished by the provisions of Article 83 about the Auditor-General’s tenure of office, which clearly negative the implication of sucha condition in the terms of his employment; for that Article enacts thatthe Auditor-General “ shall hold office during good behaviour, providedthat he shall be removed from office by the Governor upon an addresspraying for his removal presented to the Governor by the Council, providedalso that he may be required by the Governor to retire from the public
service on the ground of age or infirmity” There is nothing
in the Order in Council that restricts the power of the Crown to dismissat pleasure any other public officer.
As was pointed out by my brother in the case of Vailipuram v. Post-master-General1, “The Royal Instructions regulating the procedure fordismissal merely issued directions for the guidance of the Governor, anddid not constitute a contract between the Crown and its servants ”.Consequently a public officer aggrieved by any failure to comply withthose instructions must seek his remedy by administrative process andhas no remedy by action in a court of law. It is therefore not necessaryto discuss the argument that was addressed to us on the question whetherthere has been a failure to comply with the Royal Instructions. If,,however, it were necessary to decide that question I should hold thatthe procedure prescribed by the Instructions has been followed.
In my opinion the appeal must be dismissed with costs.
Gratiaest J.—I agree.
Appeal dismissed–