018-SLLR-SLLR-1985-V1-PERERA-v.-ATTORNEY-GENERAL.pdf
PERERA
v.
ATTORNEY-GENERAL
COURT OF APPEAL.
GPSDE SILVA. J. AND JAMEEL. J.
C.A. 415/76 (F); O-C COLOMBO A/84/Z.
JANUARY 24. 1985.
Army Act. Section 10 – Withdrawal of Commission as Lieutenant in Sri Lanka ArmyVolunteer Force – Regulations 72 end 73 of the Sri Lanka Volunteer ForceRegulations – Holding office Airing pleasure – Application of principles of naturaljustice in cases of dismissal from office held during pleasure.
The plaintiff, a commissioned Lieutenant in the Sri Lanka Volunteer Force was placed oncompulsory leave and later his commission was withdrawn m terms of Regulation 73 ofthe Sri Lanka Volunteer Force. He was given no opportunity to show cause.
*I
ThB plaintiff held office during pleasure and hence Ms contract of service with the Stalewas terminable at wil without any right to a pnor hearing there is no enforceablecontract between the officers in the Army, anil the. State. Nor can an action in delict tiebecause plaintiff must show infringement of a legal right. But here he has no such right.Hence he has no right of action
Cases referred to:
•fl) Ridge v. BakMn{1963]2AaER66.
{2) Mdchadv. The Queen 11890} 1189611Q8 121.
{3) teamen v. The King [1920131(8 663.
'• (4) Tfce Attorney-Genera/v. Chanmugam(1967}-71NLR 78.82.
(5| Kodeeswaran v. Attorney-General (1969} 72NLR 337. 345.
APPEAL from the District Court of Colombo.
D. 8. P GoonetNeka for appellant.sareth SHva. D. $. G. for respondent.
Cur. adv. vutt.
March 8. 1985.
P. S. OE SILVA. J:
The plaintiff was commissioned as Lieutenant in the Sri Lanka ArmyVolunteer Force on 6th May 1971. On. 24.10.72 he was placed oncompulsory leave without pay. Thereafter his Commission waswithdrawn with effect from 13th March 1973 by gazette No. 53 of30th March 1973. The Commander of the army by letter dated
informed him that his Commission was withdrawn in terms ofregulation 73 of the Sri Lanka Volunteer, Force.Regulations. On 12thDecember 1974 he instituted this action against the Attorney-Generalcomplaining that the withdrawal of the Commission was contrary tothe principles of natural justice ; that it was wrongful, withoutreasonable grounds, mala fide and for extraneous reasons: that hesuffered damages which he estimates at Rs. 50,000. He sought adeclaration (a) that the withdrawal of his Commission was illegal andwrongful, (b) that he is entitled to the restoration of the Commissionwith effect from 13.3.73 ; (c) that he is entitled to his salary from.
and to damages in a sum of R$. 50,000.
At the trial the District Judge tried .issue Nos. 17, 18, 19, 20, 21,22 and 23 as preliminary issues pf law :
Was the dismissal from office by gazette notification referredto in issue No. 5 ? (i.e. gazette No. 53 of 30.3.73).
Did the plaintiff hold office at the pleasure of the President ofSri Lanka ?
Can the plaintiff institute an action to recover salary and otherallowances ?
If issues 17 and/or 18 and/or 19 are answered in favour ofthe defendant:
can the plaintiff maintain this action ?
is the plaintiff entitled to the relief prayed for in the plaint ?
Is the dismissal by the President a matter justiciable in thiscourt ?
Is the placing of the plaintiff on compulsory leave withoutsalary a matter justiciable in this Court ?
If the answer to issues 21 and/or 22 is in the negative has theCourt jurisdiction to hear and determine this action ?
The District Judge having heard the submissions of counselanswered the issues in favour of the defendant and dismissed theplaintiff's action. The plaintiff has now preferred an appeal.
Mr. D. R. P. Goonetilleke, counsel for the plaintiff-appellant referredus to regulation 72 and 73 of the Sri Lanka Volunteer ForceRegulations. Regulation 73 was relied on by the Army Commander inhis letter of 29.5.73 to the plaintiff The regulations read thus :
"72. For any reason other than misconduct, an officer may atany time be called upon to resign his-commission. should thecircumstances of the case in the opinion of the GovernorGeneral require it.
73. An officer may at any time be called upon to resign hiscommission or be removed from the Volunteer Force formisconduct".
It was counsel's submission that there was no charge of misconductagainst the plaintiff nor was an inquiry held into any allegedmisconduct. Counsel further urged that in' these circumstances theofficer must be called upon to resign before the commission iswithdrawn. The plaintiff, however, was not called upon to resignbefore his commission was withdrawn. Mr. Goonetilleke maintainedthat an imperative requirement as to procedure was not complied withand hence the withdrawal of the Commission was wrongful.
Relying on the decision of the House of Lords in Ridge v. Baldwin,
Mr. Goonetilleke further contended that the withdrawal of theCommission by the President had no legal effect whatsoever since theplaintiff was denied an opportunity of shoving cause against thewithdrawal of his Commission. In short, the submission was that therewas a clear violation of the audi alteram partem rule.
On a consideration of the averments in the plaint read as a whole, itseems to me that Mr. Sarath Silva, Deputy Solicitor-General, is right inhis submission that the action is framed on the basis of a breach of thecontract of employment and that the damages claimed is for thewrongful withdrawal of the Commission – vide in particularparagraphs 10 and 11 of the plaint. The preliminary issues raised onbehalf of the defendant related to two objections. The first was that nocause of action has accrued to the plaintiff to sue the defendant andthe second was that the court had no jurisdiction to hear anddetermine the action.
On the first point it is very relevant to note that the plaintiff held hisappointment 'at pleasure'. Section 10 of the Army Act (Chap. 357)enacts that 'Every officer shall hold his appointment during theGovernor-General's pleasure". Section 107 (1) of the Constitution of1972 (which was in operation on the date of the withdrawal of theCommission and at the time of the institution of the action) providesthat 'save as otherwise expressly provided by the Constitution, everystate officer shall hold office during the pleasure of the President*. Itwas not contended that the plaintiff was not a ‘State officer'. Hiscontract of service with the State was terminable at will withoutassigning reasons. The principle is that the public interest requires thatthe State should be in a position to terminate the services of its
employees at any moment. The D.S.G. relied on the wed known caseof Mitchell v. The Queen (2) wherein Lord Esher in the openingsentence of his judgment states :
'I agree with Matthew. J. that the law is as clear as it can be. andthat it has been laid down over and over again as the rule on thissubject that ad engagements between those in the military service ofthe Crown and the Crown are voluntary only on the part of theCrown and give no occasion for an action in respect of any allegedcontract'.
And Lord Esher concludes his judgment with these words :
'It has been decided over and over again that, whatever means ofredress an officer may have in respect of a supposed grievance, hecannot as between Himself and the Crown take proceedings in theCourt, of Law in respect of anything which has happened betweenhim and the Crown in consequence of his being: a soldier. TheCourts of taw have nothing whatever to do with such a matter'.
A similar view was expressed in teaman v. The King (3). Both thesecases were cited with approval by Sirimahe. J. in TheAttorney-General v. Chanmugam (4). It may not be irrelevant to notethat Lord Diplock in Kodeeswaran v. Attorney^General (5) observed:
'As already pointed out the current of authority for a hundredyears before 1926, though sparse, was to the effect that arrears ofsalary of a civil servant of the Crown, as distinguished from amember of the anried services, constituted a debt recoverable byPetiton of Right'. {The emphasis is mine)
The fact that there is no enforceable contract between officers inthe Army and the State is discussed by Wade in his 'AdministrativeLaw', 5th Edition, page 65 :
‘In the armed services the lack of any legal remedy for wrongfuldismissal has been made clear in a parallel tine of decisions whichare. if anything, more categorical than those dealing with civilservants. It was in fact the decisions about military service whichprovided persuasive precedents for the decisions about civil
serviceThe military cases tend more to the conclusion that
this type of Crown service is not contractual at all. This was flatlystated by Lord Esher. M. R. in 1890'.
Having regard to the principles set out in these decisions and the'pleasure principle' enacted in tha Army Act and in the Constitution, tam of the view that Mr. Goonetilleke's submission based onregulations 72 and 73 cannot succeed.
I turn next to the question of the denial of the principles of. naturaljustice. Admittedly the plaintiff wa$ not heard before his Commissionwas withdrawn. Does this fact give rise to a cause of action ? Theanswer is emphatically in the negative. Lord Reid in Ridge v. Baldwin(supra) in considering the application of the principles of natural justiceto cases of dismissal stated :
‘These appear to fall into three classes, dismissal of a servant byhis master, dismissal from an office held during pleasure, anddismissal from an office where there must be something against a
man to warrant his dismissalthere are many cases
where a man holds office at pleasure. Apart from judges and otherswhose tenure of office is governed by statute, all servants and
officers of the Crown hold office at pleasureIt has
always been held. I think rightly, that such an officer has no right tobe heard before he is dismissed and the reason is clear. As theperson having the power of dismissal need not have anything
against the officer, he nedd not give any reasonI fully
accept that where an office is simply held at pleasure the personhaving power of dismissal cannot be bound to disclose his reasons.No doubt he would in many cases tell the officer and hear hisexplanation before deciding to dismiss him. But if he is not bound todisclose his reason and does not do so, then, if the court cannotrequire him to do so, it cannot determine whether it would be fair tohear the officer's case before taking action’.
Finally, it was contended on behalf of the plaintiff that the action isbased on delictual liability. As stated earlier, the averments in the plaintdo not support such a contention and the claim for Rs. 50.000 asdamages appears to be for wrongful dismissal. In an action in delictthe act complained of should be legally wrongful as regards theplaintiff and the plaintiff must show that a legal right of his has beeninfringed. Plainly, the withdrawal of the Commission by the Presidentdoes not constitute an infringment of a right of the plaintiff. In anyevent, the breach of a contract by one of the parties to it is not adelict – Principles of South African Law by Write. 5th Edition, page501.
On a consideration of the matters set out above, it seems clear thatthe plaint does not disclose a cause of action. In this view of thematter, it is unnecessary to consider the jurisdictional issue based onthe immunity of the President in respect of civil proceedings – section23 (1) and the ouster clause embodied in section 106 (5) of the1972 Constitution. In the result, the appeal fails and must bedismissed However, in alt the circumstances of the case. I make noorder as to costsof appeal.
JAMEEL, J. -1 agree.
Appeal dismissed.