PODI SINGHO, Petitioner, and A. E. GOONESINHA, Respondent

105-NLR-NLR-V-49-PODI-SINGHO-Petitioner-and-A.-E.-GOONESINHA-Respondent.pdf


344
BASNAYAKE J.—Podi Singho v. Goonesinha.
Present:Basnayake J.
PODI SINGHO, Petitioner, and A. E. GOONESINHA, Respondent.
In the Mattes, of ah Application for Mandate in the nature,of a Writ of Quo Warranto aqainst A. E. Goonesinha.
Writ of Quo Warranto—Seat in Municipal Council—Holder of public office—Parliamentary Secretary—Local Authorities Elections Ordinance, No. 53 of1946—Section 10 (l)(d).
A Parliamentary Secretary appointed, under section 47 of tffe 'Ceylon(Constitution) Order in Council, 1946, is the holder of a public office within fthe meaning of section 10 (1) (d) of the Local Authorities Elections Ordinance,No. 53 of 1946.
_A_PPLIC ATI ON for a writ of quo warranto.
E. B. Wikramanayake, with C. S. Barr Kumarahulasinghe and M. A.M. Hussein, for the petitioner.
C. V. Ranawake, with W. D. Goonesekera, for the respondent.
Cur. adv. vult.
May 21, 1948. Basnayake J.—
The petitioner, Sooriya Aratchige Podi Singho, is a duly registeredvoter for the Borella Ward of the Municipality of Colombo. At theelection of members for the Municipal Council of Colombo held in December1946, the respondent, A. E. Goonesinha, was elected a member of theBorella Ward and in January, 1947, commenced to exercise, and was atthe date of this application exercising, his functions as a member of theMunicipal Council. On September 20,1947, the respondent was
elected a member of the House of Representatives, and on September26, 1947, he was appointed Parliamentary Secretary to the Ministerof Labour and Social Services.
The petitioner contends that the respondent by virtue of his appoint-ment as Parliamentary Secretary is the holder of a public office underthe Crown in Ceylon within the ambit of section 10 (1) (d) of the LocalAuthorities Elections Ordinance, No. 63 of 1946 (hereinafter referred toas the Local Authorities Elections Ordinance). The expression “ publicoffice under the Crown in Ceylon ” is not defined in that Ordinance, butsub-section (7) of section 10 excludes certain offices from its ambit.They are—
a Justice of the Peace ,
a Justice of the Peace and Unofficial Magistrate ;
a Commissioner for Oaths ;
an Inquirer appointed under section 120 of the Criminal Procedure
Code; or
the holder of any other public office declared by the Governor by
Order published in the Gazette to be an office not included inthat expression.
BASNAYAKE J.—Pod* Singho o. Oooneainha
345
No Order under section 10 (7) (e) has as yet been published. The onlyoffices excluded sire therefore those mentioned in paragraphs (a) to (d).It is not disputed that the respondent is a Parliamentary Secretaryappointed on September 26, 1947, by the Governor under section 47 ofthe Ceylon (Constitution) Order in Council, 1946. The duties of aParliamentary Secretary are to assist the Minister to whom he is Parlia-mentary Secretary in the exercise of his Parliamentary and departmentalduties. Section 49 of the Ceylon (Constitution and Independence),Orders in Council, 1946 and 1947 (hereinafter referred to as the Orderin Council), provides that a Parliamentary Secretary shall hold officeduring His Majesty’s pleasure and that he may resign his office by writingunder his hand addressed to the Governor-General. Whenever aParliamentary Secretary is from any cause whatever unable to performany of the functions of his office, the Governor-General is empowered toappoint a person to act in his place either generally or in the performanceof any particular function. A person so appointed is deemed to be aParliamentary Secretary as long as his appointment shall subsist. AParliamentary Secretary is required by section 49 (4) of the Order inCouncil to take the official oath in accordance with the provisions of thePromissory Oaths Ordinance. That oath is in the following form :
solemnly, sincerely, and truly declare and affirm
"I, – – – ,do——
swear
that I will well and truly serve His Majesty King George the Sixth inthe office of Parliamentary Secretary. (So help me God.)”
It is alleged by the petitioner that the respondent, since his appointmentas Parliamentary Secretary, received and continues to receive a salaryof Us. 1,000 per mensem. Counsel has not drawn my attention to anyprovision of the Order in Council which provides for the payment of asalary to a Parliamentary Secretary, nor have I been able to find anysuch provision. Section 26, which provides that, if provision is made bylaw for the payment to Senators or Members of Parliament of any remune-ration or allowance in their capacity as Senators or Members of Parlia-ment, the receipt by any Senator or Member of Parliament of suchremuneration or allowance shall not disqualify him from sitting or votingin the Senate or the House of Representatives as the case may be, makesno provision for the payment of any remuneration or allowance to amember in his capacity as Parliamentary Secretary. As the allegationthat the respondent in fact receives a salary in his capacity as Parlia-mentary Secretary is not denied, I shall assume that it is true.
The question I have to decide is whether the respondent is the holderof a public office under the Crown in Ceylon. In the case of De Alwis v.Tyagarajah1 this very question arose in regard to a person holding theoffice of Manager of the Ceylon State Mortgage Bank, and it was heldthat his office was not a “public office under the Crown”. The StateMortgage Bank is a body corporate and is governed by a special Ordinance,the Ceylon State Mortgage Bank Ordinance. It is not a department ofGovernment. Learned counsel for the petitioner relies on the case of
1 (1940) 41 N. I-. R. 481 ; 18 G. L. W. 3828 — N.L.R. Vol – xlix
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BA8NAYAKE J.—Podi Singho v. OooneMnha
in -re Minims1 wherein Cave J. says : “ To make the office a publicbffice, the pay must come out of national and not out of local funds, and.the office must be public in the strict sense of that term.” He also citedthe following observations of Lawrence J. in Rex v. Whitaker2: “Apublic officer is an officer who discharges any duty in the discharge ofwhich the public are interested, more clearly so if he is paid out of a fundprovided by the public. If taxes go to supply his payment and the publichave an interest in the duties he discharges, he is a public officer.” Iwas also referred to the note of the case of the Transvaal ProvincialAdministration (Smit. N. O.) v. Molokoane in Volume 48 of the South■African Law Journal at page 517, wherein certain tests laid down by theCourt for determining whether a person was a servant of the Grown arestated. They are :
Who makes his appointment ?
Who pays his salary ?
Who controls his work ?
Who dismisses him ?
Who controls the buildings in which he works ?
These cases have no direct application to the question that arises fordecision. The; first named is a case in bankruptcy proceedings; theother two, apart from the fact that they are concerned with the meaningof expressions that do not arise for decision here, are criminal cases.
‘ Neither counsel has cited, nor have I been able to find, any case whichdiscusses the meaning of the expression “ public office ” in a context suchas this. The expression “ public office within the United Kingdom ” inthe Income Tax Act, 1918, is discussed by the House of Lords in the caseof McMillan v. Guest3. Lord Wright says therein : “ The word ‘ office ’is-of indefinite content. Its various meanings cover four columns of theNew English Dictionary, but I take as the most relevant for purposes ofthis case the following : ‘ A position or place to which certain duties areattached, especially one of a more or less public character.’ This, I think,roughly corresponds with such approaches to a definition els have beenattempted in the authorities, i,n particular, Great Western Ey. Co. v. Rater 4.where the legal constuction of these words, which had been in Sch. Esince 1803 (43 Geo. 3, c. 122, s. 175), was discussed.”
.. This expression of opinion is not a definition of the word “ office ”,for Lord Wright guards himself by saying “ I do not attempt what theirLordships did not attempt in Bater’s case (1922) 2 A. G. 1, that is, anexact definition of these words. They are deliberately, I imagine, leftvague. Though their true construction is a matter of law, they are to beapplied in the facts of the particular case according to the ordinary useof language and the dictates of common sense with due regard to therequirement that there must be some degree of permanence and publicityin the office. ”
Lord Porter approaches the question from a different angle. He says :
That it is an office is, I think, plain. It has permanency apart from the■ temporary holder and is held in one of the specified corporations. One
‘ (1891) 1 Q. B. 594.* (1942) A. C. 561.
* (1914) L. R. 3 K. B. D. 1283 at 1296.‘ (1922) 2 A. C. 1.
BASNAYAKE J.—Podisingho v. Ooonesinha
347:
has only to refer to sections such as ss. 145 and 151 of the Companies -Act,.1929, to fmd the phrase ‘ office of director ’ expressly mentioned. Indeed*this is not in dispute. What is controverted is the allegation that adirectorship, at any rate in a so-called private company, is a public,'office. The argument is put on the ground that at worst—i.e., at worst}for the appellant—directors of companies not by statute requiring any;directors, if appointed at all (as they may be, but are not compelled to be,in the ease of a private company), are not holders of a public office.There is no magic in the phrase ‘ private company ’. It is true that itneed not have directors or issue a prospectus, and that it is not permittedto have more than fifty shareholders and may have no more than two,but it still must be registered and keep an official register of its members.It is a corporate body constituted by Act of Parliament (now the Connpanies Act, 1929), and that Act imposes duties on the office itself and itsholder for the time being. These obligations are imposed in the publicinterest that some public control over its organization and activities maybe obtained.”;
The case of Lewis v. Cattle 1, a decision under the Official Secrets Act;should be noticed in this connexion as the words “ any person holdingoffice under His Majesty ” occur in section 2 (1) (a) of the OfficialSecrets Act, 1911. The question that arose for decision in that oase waswhether the Superintendent of Police of the borough of Southport was' Aperson holding office under His Majesty. Lord Hewart observes : “ In myopinion it is true to say that every police officer in England and Wales;whether he be a member of the Metropolitan police foree, or a memberof the police force of a county, city, or borough, holds the office ofconstable, and within his constablewick has all the duties and rightsconferred by common law or statute on the holders of that office. He isrequired to take an oath of office, and his primary duty .is to preserve theKing’s peace. It follows that a police officer is a person who holds.officeunder His Majesty within the meaning of the Official Secrets Acts, t ;
“ It may be well to observe that the justices, in submitting this..case fos;the opinion of this Court, after stating, and stating correctly, that thequestion at issue between the parties was whether a police officer was aperson holding office under His Majesty, state that they find that a policeofficer is ‘ in the service of His Majesty ’, being, apparently, under theimpression that a person who serves His Majesty must necessarily holdoffice under His Majesty. That, however, is not the case. There aremany offices which are held under His Majesty the holders whereof arqnot in any proper sense of the words in the service of His Majesty. Soalso there are many persons in the service of His Majesty -who do not inany proper sense of the words hold office under His Majesty.”
The case of Cleg horn v. Sadler 2 deserves mention, as it attempts to bringout the distinction between the holder of an office and a person on whomcertain duties are cast by law. It was there held that fire-watching wasa duty imposed by law and not an office.
I shall now examine the present application in the light of the dictaI have quoted above. The Order in Council, as I have stated earlier,
1 54 Times Law Reports 721 „• (1938) 2 AU E. R. 368.
a (1945) 1 AU E. R. 544.
34*
Kannangara v. David
expressly provides that “ every Parliamentary Secretary shall hold officedaring His Majesty’s pleasure ” (section 49) and makes provision wherebya Parliamentary Secretary “ may at any time resign his office ”. AParliamentary Secretary has “ Parliamentary and departmental dutiesto perform ” (section 47), and whenever he is unable to perform “ any ofthe functions of his office ” power is taken for the appointment of a substi-tute. He is also required to take an oath of office (section 49 (4) ) likeany other holder of an office. It is clear therefore that he holds an office,and that it is a public office cannot be denied. The word “ public ”means “of, pertaining to, or affecting the people at large or the community;distinguished from private or personal ”. An office in the Governmentof the country is a public office and is by no means a private office. Doesthe respondent hold office under the Crown in Ceylon ? He derives hisappointment from His Majesty and holds office during His pleasure. Heis bound by an oath of office and allegiance. All these go to show thathe holds office under the Crown. The expressions “ Crown ” and “ HisMajesty ” in modern legislation mean the same thing. Maitland in hisessay on the Crown as a Corporation traces the history of the gradualreplacement of the expression “ Crown ” by the expression “ HisMajesty ” As observed by Lord Hewart in the case of Lewis v. Cattle(supra), though he holds office under His Majesty he is not in the serviceof His Majesty. This view gains support from section 10 (7) of the LocalAuthorities Elections Ordinance, which indicates that in this contexteven such offices as Justice of the Peace, Unofficial Magistrate, Commis-sioner for Oaths, and an Inquirer appointed under section 120 of theCriminal Procedure Code, fall within the ambit of the expression “ publicoffice under the Crown in Ceylon ”, hence their express exclusion.
The respondent is therefore not qualified to sit or to vote as a memberof the Municipal Council and I declare that his seat is vacant.
I allow the petitioner taxed costs in the highest class according to thescale provided for appeals from District Courts in Part IV of the SecondSchedule to the Civil Procedure Code.
Application allowed.