045-NLR-NLR-V-71-R.-R.-PILLAI-Appellant-and-C.-D.-FONSEKA-and-another-Respondents.pdf
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ABEYESUXDERE, J.—lJillai v. Fonseka
196SPresent: Abeyesundere, J., and Samerawickrame, J.R.R. PILLAI, Appellant, and C. D. FONSEKA and another,
Respondents
S. C. 598j65—D. C. Vavuniya, 1S69
Public officers—Ceylon (Constitution) Order in Council, 1946, s. 61—Order made byPublic Service Commission on 7th October 1956—Dismissal of a public officerthereunder on the ground that his visa had expired—Invalidity—Action for adeclaratory decree relating to illegality of the dismissal—Maintainability.
By an Order raado by tho Public Service Commission on 7t h October, 1955,under section Cl of the Ceylon (Constitution) Order in Council, 1940, the Headof a Department was delegated the power to dismiss public officers of certaincategories on the ground of misconduct. Purporting to act under that Order,the Director of Land Development terminated the services of the plaintiff-appellant on the ground that his visa had expired and that, therefore, ho didnot come under the category of persons who had a right of employment underthe Government of Ceylon.
Held, that the plaintiff was dismissed, not on the ground of misconduct, buton the ground that his visa had expired. His dismissal was therefore void andinoperative.
Held further, that it is open to a public servant, who is aggrieved by theunlawful termination of his services, to institute an action soeking the relief ofa declaration that tho termination of his services was void and inoperative.
Appeal from a.judgment of the District Court, Vavuniya.
G. Suviheralhugam, for the Plain tiff-Appellant.
– II. Deherayoda, Senior Crown Counsel, with P. Kagulcsivaran, CrownCounsel, for the Dcfcndants-Respondents.
Cur. adv. vntt.
March 8, 1968. Abeyesukdeue, J.—
In this case the plaintiff sued the defendant for an alleged breach ofcontract of employment stating that the plaintiff’s services were termi-nated by the defendant unlawfully and that such unlawful terminationconstituted a breach of contract of employment. The defendant in thiscase is the Director of Land Development. The Attorney-Generalintervened under section 463 of the Civil Procedure Code for the purposeof defending the Director and was substituted as a party defendant.Although the plaintiff expressly prayed in the plaint for damages in conse-quence of an alleged breach of contract of employment, he also prayed inthe plaint for such other and further re ief as to the Court may seem meet.Issue No. 5 tried by the learned District Judge in this case was
ABEYESUNDERE, J.—Pillaiv. Fonseia
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as follows :—“ Did the defendant terminate the services of the plaintiffunlawfully and without just and reasonable cause on 20.9.00 ?That issue was answered in the negative by the learned DistrictJudge who held that the plaintiff was not entitled to be reinstated inservice as he had been rightly dismissed, and further that the plaintiffdid not come under the category of persons who had a right to emp oy-ment under tne Government of Ceylon. The action of the plaintiff wasdismissed with costs by the learned District Judge. The plaintiff hasappealed from the judgment and decree.
P6 dated 20th September, I960, is a letter by which the Director ofLand Development informed the plaintiff that his services were terminatedwith immediate effect, and the reason for such termination appears fromthe letter P6 to be that the plaintiff was not authorised to stay inCeylon because his final visa had expired on 4. 12. 56. The PublicService Commission has, by order made under section 61 of the Ceylon(Constitution) Order in Council, 1940, published in Gazette No. 10,847. of_October 7, 1955, delegated to the head of the department “ the power todismiss or to otherwise punish for misconduct, on any ground other thanon the ground of conviction, a public officer (other than an officer ofany of the Combined Services or of the Quasi Clerical Service) who isworking in a Department assigned to a Minister and—
(а)who is the holder of a pensionable post and who is paid a salary notexceeding Rs. 2,700/- per annum, or
(б)who is the holder of a non-pcnsionable post and who is paid asalary not exceeding Rs. 3,180/- per annum ”.
It is clear from the terms of the delegation that the head of the departmentcannot dismiss an officer otherwise than on the ground of misconduct.In the case before us the Director of Land Development has terminatedthe services of the plaintiff, not on the ground of misconduct, but on theground that the plaintiff’s visa had expired and that therefore he was notauthorised to stay in Ceylon. The termination of the services of theplaintiff is therefore void and inoperative. Accordingly we hold that thelearned District Judge was wrong in holding that the defendant did notterminate the services of the plaintiff unlawfully.
Crown Counsel appearing for the Attorney-Genera! submitted thataccording to the law now in force in Ceylon an officer in the service of theCrown cannot sue the Crown for a breach of contract of employment:He did not, however, submit that it was not open to a public servant, whois aggrieved by the unlawful terminat on of liis services, to institute anaction seeking the relief of a declaration that the termination of hisservices was void and inoperative. In fact this Court has held in the case ofSilva v. Tke Attorney-General1 that it is open to a servant of the Crown,who has been unlawfully dismissed from the Public Service by the Public
* (1958) 60 N. L. R, US.
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Subramaniam v. Inspector of Police, Kankesanturai
Service Commission, to seek to obtain from a competent Court a declara*tion that he has not been dismissed by the Public Service Commissionaccording to law. The breach of contract of employment allegedby the plaintiff in his plaint is the unlawful termination of his services bythe Director of Land Development. The trial Court examined thequestion whether the termination of the plaintiff’s services was accordingto law or not! We notice that the learned District Judge has alsoexamined the question whether, as held in the case of Silva v. Attorney-General, it was open to the District Judge to declare that the terminationof the plaintiff’s services was void and inoperative. The learned DistrictJudge acknowledged that he was bound by the decision in the case ofSilva v. Attorney-General. He has not made the declaration that thetermination of the plaintiff’sservices was void and inoperative because hehas taken the view that the Director of Land Development had thepower to terminate the plaintiff’s services and that such power waslawfully exercised.
For the aforesaid reasons we are of the view that, having regard to theprayer of the plaintiff for such other and further relief as to the Court mayseem meet, it is open to this Court to make a declaration that the termina-tion of the plaintiff’s services by the. Director of Land Development wasvoid and inoperative. Accordingly we make that declaration and setaside the judgment and decree of the learned District Judge.
The plaintiff-appellant is entitled to the costs of appeal and also to thecosts of the trial in the District Court.
Samerawickrame, J.—I agree.
Appeal allowed.