SILVA, Appellant, and THE ATTORNEYGENERAL, Respondent

041-NLR-NLR-V-60-SILVA-Appellant-and-THE-ATTORNEYGENERAL-Respondent.pdf


Silva v. The Attorney-General
145
1958Present: Basnayake, C.J., and Pulle, J.
SILVA, Appellant, and THE ATTORNEY-GENERAL, Respondent8. C. 785—D. G. Colombo, 89,746{M
Public Service—Person holding office under the Crown—Liability to dismissal byPublic Service Commission—Power of Public Service Commission to delegateits powers—Effect of stick delegation—,Revocation of delegation—InterpretationOrdinance, s. 15—Wrongful disndssal of public servant—Right to obtain redressfrom the Courts—Maintainability of action for declaration of status—Ceylon(Constitution and Independence) Orders in Council, 1946 and 1947, s». 67, 63,60, 61.
The implied term of service of a person holding office under the Crownthat his tenure of office is at the pleasure of the Crown oan be impaired bystatute or by express agreement.
Rules as to procedure concerning dismissal, notice, term of office and the likeare legally binding if they have the force of law or are expressly incorporated inthe contract of service.
It is open to a servant of the Crown, who has been unlawfully dismissed fromthe Publio Service by the Public Servioe Commission, to seek to obtain froma competent Court a declaration (a) that he has not been dismissed from thePublic Service according to law, and (ft) that notwithstanding the purporteddismissal of him by the Publio Service Commission, he is still a publio servantand entitled to hiB emoluments and pension rights as a servant under the Crown.
By section 61 of the Ceylon (Constitution and Independence) Orders inCouncil, 1946 and 1947:—
“ The Public Service may, by Order published in the Government Gazette,delegate to any public officer, subject to such conditions as may be specifiedin the Order, any of the powers (of appointment, transfer, dismissal, 4c. ofpublic officers) vested in the Commission by subsection (I) of section 60.Any person dissatisfied with any decision made by any public officer underany power delegated as aforesaid may appeal therefrom to the Commissionand the decision of the Commission on such appeal shall be final. ”
Held, that where the Public Service Commission delegates its power to dismissa public officer, the delegation denudes the Public Service Commission of thepower delegated and such power caiinot be exercised thereafter unless thedelegation is formally revoked by a second Order published in the Gazette inaccordance with the provisions of section 15 of the Interpretation Ordinance.Accordingly, where the power of dismissing a public officer is delegated to Abut is exercised without any legal authority by a different person B, the PublioServioe Commission has no power to dismiss the public officer when he appealsto it from the unauthorised and illegal decision of B.
Held further, that a publio officer to whom the powers of the Public ServioeCommission are delegated must exeroise them himself and not redelegate thedelegated power.
AlPPEAL from a judgment of the District Court, Colombo.
The plaintiff was a village cultivation officer in the IrrigationDepartment. He was working in the District of Anuradhapura underthe supervision of the Government Agent. He was receiving a salary of
7LX
2—J. N. B 27532-1,593 (12/58)
146
BASNAYAKE, C. J.—Silva v. The Attorney-General
Rs. 2,520 per annum. In October 1953 the Government Agent framedcertain charges against him and subsequently direoted the Office Assistantof the Anuradhapura Kachcheri to inquire into the charges. The inquirywas accordingly held and in February 1954 the Government Agent wrotea letter to the plaintiff dismissing him from the Public Service. Theplaintiff thereupon appealed to the Public Service Commission on theground that the Government Agent had no authority to dismiss him andthat it was the Director of Irrigation alone who could do so. The decisionof the Public Service Commission on the plaintiff’s appeal was conveyedby the following letter dated August 27, 1954:—
“ I am directed to inform you that the Public Service Commissionhas considered the charges against you and the evidence led in supportof these charges and your defence. The Public Service Commission hasdecided that you should be dismissed from 27th February, 1954. Anysalary withheld during the period of interdiction should be forfeited. ”
The plaintiff thereupon instituted the present action against theAttorney-General asking for a declaration (a) that he had not beendismissed from the Public Service according to law, and (b) that notwith-standing the purported dismissal of him by the Public Service Commission,he was still a public servant and entitled to his emoluments and pensionrights as a servant under the Crown.
Admittedly (1) the Government Agent, Anuradhapura, was not theperson to whom the Public Service Commission had delegated its powerof dismissal in respect of officers of the Irrigation Department, (2) theorder of the Government Agent dismissing the plaintiff was made withoutany legal authority in that behalf, and (3) the Director of Irrigation, towhom the powers of dismissal had been delegated, had made no order
Walter Jayawardene, with Felix Bhareti and Neville Wijeratne, forPlaintiff-Appellant,
A. O. AUes, Deputy Solicitor-General, with H. L. de Silva, CrownCounsel, and P. Nagvlesvoaram, Crown Counsel, for Defendant-Respondent.
Our. adv. vult.
November 14,1958. Basnayake, C.J.—
This is an notion against the Attorney-General by a servant of theCrown who has been dismissed from the Public Service by the PublicService Commission. He asks for a declaration—
that he has not been dismissed from the Public Service according
to law, and
that notwithstanding the purported dismissal of him by the Public
Service Commission, he is still a public servant and entitledto his emoluments and pension rights as a servant under theCrown.
BASNAYAKE, C.J.—Silva v. The A ttomey-Chneral
147
The following facts are not in dispute. The plaintiff held anappointment in the public service in the capacity of a village cultivationofficer in the Irrigation Department. At the time of his dismissal hereceived a salary of Rs. 2,520 per annum. From about 1st April 1951 theplaintiff worked in his capacity of a village cultivation officer in theDistrict of Anuradhapura under the supervision of the GovernmentAgent of the North-Central Province.
On or about 30th September 1953 the Government Agent interdictedthe plaintiff from the discharge of his duties as a village cultivation officer,and on 1st October 1953 framed charges against him. On 9th December1953 the Government Agent directed the Office Assistant of the Anuradha-pura Kachcheri to inquire into the charges. The inquiry was accordinglyheld by the Office Assistant on 9th and 10th December 1953. On 27thFebruary 1954 the Government Agent wrote the following letter to theplaintiff dismissing him from the Public Service:—
" With reference to the inquiry held on 9.12.53 and 10.12.53 onthe charges framed against you in my letter No. I. C. of 1.10.53 andamended by my letter No. PA/RWS/61 /HP of 21.11.53, the followingis the verdict of the Inquiring Officer on the charges framed againstyou:—
Charge (a) Guilty.
„(b)Technically guilty with a recommendation that it be
oondoned in view of the circumstances.
„(c)Guilty.
„(d)Guilty.
„(e)Guilty.
You are dismissed from the Public Service with effect from thedate of interdiction namely 30th September, 1953. ”
The plaintiff thereupon appealed to the Public Service Commissionby his petition dated 27th April 1954 (P2). In that petition he took upthe ground that the Government Agent had no authority either tointerdict him or to dismiss him and that it was the Director of Irrigationalone who could do so. He submitted that the dismissal was null andvoid and asked that he be reinstated in the public service with effect from30th September 1953.
The decision of the Public Service Commission on the plaintiff’s appealwas conveyed by the following letter (P3) dated 27th August 1954:—
“ I am directed to inform you that the Public Service Commissionhas considered the charges against yon and the evidence led in supportof these charges and your defence. The Public Service Commissionhas decided that yon should be dismissed from 27th February, 1954.Any salary withheld during the period of interdiction should beforfeited. ”
148
BASNAYAKE, O.J.—Silva v. The Attorney-General
The defendant resists the plaintiff’s action on a number of grounds.He maintains—
that the dismissal by the Government Agent was lawful,
that the dismissal by the Public Service Commission was lawful,
that the plaintiff had no cause of action to sue him,
that the Court has no jurisdiction to grant the declarations sought
by the plaintiff,
that the Court has no jurisdiction to inquire into or hear or determine
the legality or the propriety of the acts or orders or decisionsof the Government Agent or Office Assistant or the Public ServiceCommission,
(/) that the plaintiff cannot maintain this action because he held officeat the pleasure of the Crown.
At the trial no oral evidence was produced by either side. Thedocuments PI, P2 and P3 were tendered in evidence by the plaintiffand the documents D1 and D2 — the Gazelles of 5th February 1948and 4th October 1949—by the defendant.
The following issues were agreed on by the parties*
Were the charges framed against the plaintiff by the GovernmentAgent N. C. P. on or about 1.10.53 framed without authority and werethey for that reason without effect in law ?
Were the dismissal of the plaintiff by the Government Agent N.C.P,
made without authority, and for that reason without effect inlaw 1
Did the Public Service Commission in dismissing the plaintiff on orabout 27.8.54 act—
in appeal upon the inquiry and order of dismissalof the G. A. ?
or (b) by virtue of its original power ?
If issues 1, 2 and 3 are answered in favour of the plaintiff, is thedecision of the Public Service Commission to dismiss the plaintiff nulland void ?
If issue 3 is answered in favour of the Crown is the order of dismissalbad in law for the reason that no charges were framed against the plaintiffby the Public Service Commission and that no opportunity was given tothe plaintiff to be heard by the Public Service Commission ?
Does the plaint disclose any cause of action against the Grown ?
Is it competent to the Court to entertain an action for a declarationcontained in prayer (a) or in (6) of the plaint ?
If issue 7 is answered in favour of the plaintiff should the Court inthe exercise of its discretion grant either or both of the declarationsreferred to in issue 7 ?
BASNAYAKE, C.J.—Silva v. The Attorney-General
149
The learned District Judge dismissed the plaintiff’s action holding
that—
(а)the charges framed against the plaintiff hy the Government Agent
were framed without authority and were for that reason withouteffect in law,
(б)the dismissal of the plaintiff by the Government Agent was made
without authority, and for that reason was without effect inlaw,
the dismissal of the plaintiff by the Public Service Commission
should be regarded as having been made under section 60 (1) ofthe Ceylon (Constitution) Order in Council 1946,
the decision of the Public Service Commission to dismiss the plaintiff
was not null and void,
the order of dismissal was not bad in law for the reason that no
charges were framed against the plaintiff by the Public ServiceCommission and that no opportunity was given to the plaintiff1to be heard by the Public Service Commission,
the plaint does not disclose a cause of action against the Crown,
in the circumstances of this case it is not competent to the Court to
entertain an action for a declaration contained in prayer (a) or
(6) of the plaint.
This is a convenient point at which to examine the provisions of ourlaw governing the appointment of servants of the executive departmentsof the Government. By section 60 of the Ceylon (Constitution andIndependence) Orders in Council, 1946 and 1947 (hereinafter referredto as the Order in Council), the appointment, transfer, dismissal anddisciplinary control of public officers are vested in the Public ServiceCommission constituted under section 58. Section 61 of the Order inCouncil empowers the Commission by Order published in the Gazette todelegate to any public officer, subject to such conditions as may bespecified in the Order, any of the powers vested in the Public ServiceCommission by section 60. That section also confers on any persondissatisfied with any decision made by any public officer under anypower delegated by the Commission a right of appeal to it. In theinstant case admittedly the Government Agent, Anuradhapura, was notthe person to whom the Commission had delegated its power of dismissalin respect of the officers of the Irrigation Department to which the accusedbelonged. The delegation in respect of them was to the Director ofIrrigation. Admittedly the order of the Government Agent dismissingthe appellant was made without any legal authority in that behalf and istherefore of no effect in law. It is also admitted that the Director ofIrrigation, the officer to whom the power had been delegated, has madeno order dismissing the appellant.
The order of dismissal against which the appellant complains is theorder made by the Public Service Commission when he appealed to it fromthe unauthorised and illegal decision of the Government Agent. In thatappeal he urged that the Government Agent had no power to dismiss him
2*J. N. B 27532 (12/58)„
150
BASNAYAKK, C.J.—Silva v. The Attorney-General
and that the order of dismissal was null and void and invited the PublicService Commission to set aside the order and to reinstate him with effectfrom 30th September 1953. The order made on 27th August 1954 onthis appeal was as follows :—
“. the Public Service Commission has considered the charges
against you and the evidence led in support of these charges and yourdefence. The Public Service Commission has decided that you shouldbe dismissed from 27th February 1954. Any salary withheld during theperiod of interdiction should be forfeited. ”
The Public Service Commission made this order while the delegationof its power in respect of the appellant to the Director of Irrigation wasstill in force. The Public Service Commission having delegated undersection 61 its power to dismiss had no power in law while the delegationwas in force to dismiss the appellant. When a delegation is made undersection 61 of the power of appointment, dismissal and disciplinary controlof public officers to any public officer the Public Service Commissionby operation of that section automatically becomes an appellate bodywhose decision in appeal is declared to be final. It is unthinkable thata tribunal or body should in the same matter be both an original and anappellate tribunal or body. It is clear from the enactment that whenthe Order in Council gave the Public Service Commission power todelegate its functions and constituted it the body to which appeals fromthe person exercising the delegated authority may be taken it did notintend that the appellate body should, by usurping the functions of thedelegate, be able to deprive the public officer of the benefit of the rightof appeal given to him by the Order in Council. It is idle to seek todefine the word delegate apart from the context in which it occurs. Inthis context especially in view of the fact that an appeal is allowed to thedelegating authority from the decision of the delegated authoritydelegation of its functions by the Public Service Commission to a publicofficer results in the substitution of the public officer for the PublicService Commission. The delegation denudes the Public ServiceCommission of the powers delegated and they cannot be exercised by thePublic Service Commission without a formal revocation of the delegationand resumption of the powers delegated. As the Order in Council requiresthat the delegation should be by Order published in the GovernmentGazette the revocation of that Order should also be by Order publishedin the Government Gazelle. Hath v. Clarke1 was cited by learned counselfor . the Crown in support of the general proposition that an authorityempowered by a statute to delegate its functions may notwithstandingthe delegation continue without revoking the delegation to exercise thefunctions which it has delegated. I do not think that that case laysdown such a broad proposition. That it does not is evident from thefollowing words in the judgment of Lord Coleridge: “ Unless, therefore,it is controlled by statute, the delegating power can at any time resumeits authority
Whether the delegation denudes the delegating authority of its powersor not and whether the delegating authority may resume its powers1 (1890) 25 L. if., Q. B. D. 391.
BASNAYAKE, C.J.—Silva v. The Attorney-General
151
and if so the time at which and the manner in which it may resume thedelegated powers depend on the terms of the legislative instrument underthe authority of which the delegation is made. In the case of BlackpoolCorporation v. Locker1 it was held that having regard to the provisions ofthe legislative instrument under which a delegation had been made it wasnot open to the delegating authority to exercise the delegated powers.Scott L. J. observed at page 377 :
“ In any area of local government, where the Minister had by hislegislation transferred such powers to the local authority, he, for thetime being, divested himself of those powers, and, out of the extremelywide executive powers, which the primary delegated legislationcontained in reg. 51, para. 1, had conferred on him to be exercised at hisdiscretion, retained only those powers, which in his subdelegatedlegislation he had expressly or impliedly reserved for himself. ”
In the instant case, as stated above, the Publio Service Commissionwas free to revoke its delegation by Order published in the GovernmentGazette by virtue of section 15 of the Interpretation Ordinance althoughthe empowering section itself, as in the case of the English Statute referredto in the case of Buth v. Clarke {supra), does not confer a power to revokea delegation once made. The expression delegated legislation which isfamiliar in the field of subsidiary legislation is apt to mislead one in theconsideration of the topic oi delegated powers. What is called delegatedlegislation is really not delegated legislation, for Parliament cannot anddoes not delegate its powers to anyone else. What is called the power ofdelegated legislation is the authority conferred by the Legislature ona statutory body to make subordinate laws on certain specified matters.In some cases these laws are given the effect of the statute itself, in othersthey are not. No analogy can therefore be drawn from the meaning thatthat expression has acquired in the field of law making. The order ofthe Public Service Commission dismissing the appellant is therefore ofno effect in law as it had no power to make that order at the time itmade it.
Before I leave this part of the judgment I wish to point out that a publicofficer to whom the powers of the Public Service Commission are delegatedmust exercise them himself and not redelegate the delegated power.Deleg ata potestas non potest deleg ari and delegatus non potest delegare arewell established maxims. It would appear from the document PI thatthe Government Agent when he made the unauthorised order of dismissalwas unaware not only oi the fact that he had no power to make the orderdismissing the appellant but also of the fact that he was not free toredelegate any delegated powers to anyone. For, according to his letterto the appellant quoted above, that is what he purported to do.
What I have said above disposes of the above grounds (a) and (b) raisedby the defendant. It is clear that the dismissal by the Government Agentwas of no effect in law and that the dismissal by the Publio ServiceCommission was also oi no legal effect.
1 (1948) 1 K. B. 349.
152
BASNAYAKE, C.J.—Silva v. The Attorney-General
In regard to grounds (c), (d), and (e), it is sufficient to say that underour lav it is open to a person to seek to obtain from a competent courta declaration such as the one sought by the appellant in this case. It hasbeen so laid down in a number of decisions of this Court. It is sufficientto refer to the case of JadatnuUu PiUai v. The Attorney-General It istoo late in the day to re-agitate the question of the power of the Courts todeclare in a suitably framed action a right or status or the right of thesubject to have access to the Courts for the purpose of obtaining sucha judgment. Such actions for declaration are not unknown in otherparts of the Commonwealth.
Even in the case of a Patent Office tenable during good behaviour ithas been held in the case of GrenviUe~Murray v. Bari of Clarendon 2 thatit was for the Courts and not the Crown to decide whether or not theoffice holder had been guilty of a breach of “ good behaviour LordRomilly M. R. observed in that case—
“ Unquestionably if he (the plaintiff) had been appointed to an officeby Act of Parliament or by patent from the Crown, which was to beheld as long as he behaved himself properly, then I might have to gointo the fact of whether the removal of the gentleman was justified—whether the acts proved to have been done by this gentleman weresuch as warranted his removal. ”
In regard to ground (/), the appellant does not contend that the Crownhas no right to dismiss a public officer except for cause. His contentionis that the authority who is empowered by law to exorcise the power ofdismissal has not dismissed him and that he is in law still a member of thepublic service. I have already held that this contention is sound andthat the appellant is entitled to succeed. Even where the tenure of officeof a public officer is declared to be a tenure subject to the pleasure of theCrown it has been held that statutory provisions or express terms of con-tract governing the tenure of office and the right to dismiss cannot be ignor-ed but must be given their effeot. Since the case of Shenton v. Smith 3 therehas been no serious attempt to get back to the old theory that the rightto dismiss at pleasure is a prerogative of the Crown. It is now settledthat the right where it is not declared by statute is an implied term of theengagement. The basis of this implied term appears to be the interestsof public policy or public good. The right to remove a public officer fromoffice and the procedure for his removal must not be confused. The rightto remove depends on the terms of the appointment. If it is subject toremoval for cause, the cause for which the removal can be effected mustexist. The right to remove at pleasure must be exercised by the personauthorised by law to exercise that power and the procedure for removalwhere such procedure is prescribed by legislative instrument must bestrictly observed. Similarly the right to remove for cause must, wherethe procedure is prescribed by legislative instrument, be exercised instrict accordance with the prescribed procedure. When the act ofdismissal is challenged by appropriate proceedings in a court of law the
* (1957) 59 N. L. B. 313.* (1869) L. B. 9 Eq. 11,19.
3 (1895) A. O. 229.
BASNAYAKE, O.J.—Silva v. The Attomey-Qeneral
153
Crown cannot succeed unless it is established that the removal iswarranted by law and it has been done in accordance with the procedureprescribed by law. It is sufficient to refer in this connexion to the casesof Gould v. Stuart1; Williamson v. The Commonwealth2; Lucy v. TheCommonwealth8; and Rangachari v. Secretary of State for India inCouncil4.
In Gould’s case the plaintiff who was a clerk in the Civil 8ervice wasdismissed by the Government without following the procedure prescribedin the Civil Service Act 1884. It was contended for the Crown that theAct did not create any exception to the rule that Civil Servants of theCrown held office only during pleasure and that the Act did not eitherexpressly or by implication change the Civil Servant’s tenure of office.It was further contended that final dismissal under the Act could co-existwith dismissal at pleasure and that an express authority to indict the onedid not imply that the other was abolished. These contentions wererejected by the Privy Council which held that provisions which weremanifestly intended for the protection and benefit of the officer must begiven their effect even though they are inconsistent with the term thatthe Crown may put an end to the contract of service at its pleasure.
In Williamson’s case it was held that the power of dismissal under theCommonwealth Public Service Act 1902 must be exercised strictly andthat an officer who had been dismissed without being first suspended asrequired by the Act had been wrongfully dismissed and damages wereawarded to the officer. Higgins J. after examining the provisions of theCommonwealth Public Service Act, 1902, stated ;
“ In short, if there be no suspension for the charges, the officer cannotbe furnished with a copy of the charges ‘ on which he is suspended *;and unless he be furnished with such a copy, there is no power to appointa Board of Inquiry; and if there be no valid Board of Inquiry, thepower of the Governor-General to dismiss does not arise. It may bethought that the officer suffers no harm in not being suspended. I amnot sure that he is not prejudiced, especially if—as the parties assume—a suspended officer is entitled to pay during suspension, in the eventof his not being dismissed. But, prejudiced or not, suspension on thecharges for which he is dismissed is made a condition precedent todismissal. Powers of dismissal under this Act, like powers of expulsionunder partnership and other agreements, must be exercised strictlyas prescribed. ”
Lucy’s case was an action for damages for wrongful dismissal by anofficer of the Postal Department of South Australia. It was held byKnox C.J., and Isaacs, Higgins, and Starke JJ., that his dismissal wascontrary to the Statute governing his employment and that he was entitledto damages, the measure of damages being the same as that in an actionfor wrongful dismissal. In the course of his judgment Starke J. observed :
“ The relation between the Crown and its officers is contractual inits nature. Service under the Crown involves, in the case of civilofficers, a contract of service—peculiar in its conditions, no doubt, and
»(m3) 33 O. L. B. 229.
‘ (1937) A. 1. B. (P. O.) 27.,
1 (1896) A. C. 575.
* (1907) 5 O. L. B. 174.
164
BASNAYAKJE, C.J.—Silva v. The Attorney-General
in many cases subject to statutory provisions and qualifications—butstill a contract (Gould v. Stuart (supra)). And, if this be so, there isno difficulty in applying the general law in relation to servants who arewrongfully discharged from their service. ”
In Rangackari's case the plaintiff was dismissed contrary to the provisionof a statute which reads—
“ But no person in that service (the Civil Service of the Crown) maybe dismissed by any authority subordinate to that by which he wasappointed. ”
The Privy Council held that the dismissal was bad. Lord Roche whodelivered the judgment of the Board observed—
“ The purported dismissal of the appellant on 28th February 1928emanated from an official lower in rank than the Inspector-General whoappointed the appellant to his office. The Courts below held that thepower of dismissal was in fact delegated and was lawfully delegated tothe person who purported to exercise it. Counsel for the respondentoandidly expressed a doubt as to the possibility of maintaining thisview and indeed it is manifest that if power to delegate this power couldbe taken under the rules, it would wipe out a proviso and destroya protection contained not in the rules but in the section itself. TheirLordships are clearly of opinion that the dismissal purporting to be thusordered in February was by reason of its origin bad and inoperative.Their Lordships have most anxiously considered whether some relief byway of declaration to this effect should not be granted. It is manifestthat the stipulation or proviso as to dismissal is itself of statutory forceand stands on a footing quite other than any matters of rule which areof infinite variety and can be changed from time to time. It is plainlynecessary that this statutory safeguard should be observed with theutmost care and that a deprivation of pension based upon a dismissalpurporting to be made by an official who is prohibited by statutefrom making it rests upon an illegal and improper foundation. ”
Learned counsel for the Crown placed great reliance on the case ofR. Venkata Rao v. Secretary of State for India 1. In my view it is of noavail to the Crown in the instant case. Venkata Rao sought to recoverfrom the Secretary of State for India Rs. 15,000 as damages for wrong-ful dismissal. The Privy Council while refusing to order the Secretaryof State to pay damages stated in no uncertain terms that the rulesgoverning dismissal must be scrupulously observed. Although damageswere refused the Board’s criticism of the wrongful action of the Govern-ment was severe. It stated :
" They regard the terms of the section as containing a statutory andsolemn assurance that the tenure of office, though at pleasure, will notbe subject to capricious or arbitrary action, but will be regulated byrule. The provisions for appeal in the rules are made pursuant to theprinciple so laid down. It is obvious, therefore, that supreme careshould be taken that this assurance should be carried out in the letter,1 (1937) A. O. 248.
BASNAYAKE, C.J.—Silva v. The Attorney-General
155
and in the spirit, and the very fact that government in the end is thesupreme determining body makes it the more important both thatthe rules should be strictly adhered to and that the rights of appealshould be real rights involving consideration by another authorityprepared to admit error, if error there be, and to make proper redress,if wrong has been done. Their Lordships cannot and do not doubtthat these considerations are and will be ever borne in mind by thegovernments concerned and the fact that there happen to have arisenfor their Lordships’ consideration two cases where there has been aserious and complete failure to adhere to important and indeed funda-mental rules, does not alter this opinion. In these individual casesmistakes of a serious kind have been made and wrongs have beendone which call for redress.”
Without a knowledge of the entire background of the Indian lawagainst which the above decision was given I find great difficulty inreconciling the refusal to grant redress with the severe strictures passedon the Government. Under our law a person who has been so grievouslywronged as Venkata Rao appears to have been can undoubtedly obtainredress from the Courts. In this respect our law seems to be morein accord with that of Australia than with that of England andIndia.
The above cases and others too numerous to cite here 1 includingthe case of R. Venkata Rao v. Secretary of State for India (supra) readwith Reilly v. The King 8 lay down the following principles:—
that the implied term of service of civil servants of the Crown that
their tenure of office is at pleasure can be impaired only bystatute or by express agreement;
that rules as to procedure on dismissal, notice, term of office and
the like, have no legal effect unless they have the force of lawor are expressly incorporated in the contract of service. Wherethey are expressly incorporated in the contract of service orhave the force of law they prevail.
1 (1) Smyth v. Latham, (1833) 9 Bing. 692, 131 E. R. 773.
De Dohse v. The Queen, (1886) 3 T. L. B, 114.
Shenton v. Smith, (189S) A. 0. 229.
Dunn v. The Queen, (1896) 1 Q. B. 116,
Young v. Adame, (1898) A. C. 469.
Young v. Waller, (1898) A. 0. 661.
Re Bales, (1918) 34 T. L. B. 341 affd. 589.
Denning v. Secretary of State for India in Council, (1920) 37 T. L. B. 138.
Venkata Boo v. Secretary of State for India, (1937) A. 0. 248.
Lucas v. Lucas dk High Commissioner for India, (1943) 2 A. E. B. 110.
Rodwell v. Thomas, (1944) 1 K. B. 596.
Terrell v. Secretary of State for Colonies (1953) 2 Q. B. 482.
Inland Revenue Commissioners v. Hambrooh, (1956) 1 Att E. R. 807.
• (1934) A. C. 176 at 179.
156
BASNAYAKE, C.J.—•Silva v. The Attorney-General
In this connexion it will not be out of place to quote here the wordsof Lord Atkin in Reilly's case:
“ Orde J.’s judgment in the Supreme Court seems to admit that therelation might be at any rate partly contractual; but he holds that anysuch contract must be subject to the necessary term that the Crowncould dismiss at pleasure. If so, there could have been no breach.
“ Their Lordships are not prepared to accede to this view of theoontract, if contract there be. If the terms of the appointmentdefinitely prescribe a term and expressly provide for a power todetermine ‘ for cause ’ it appears necessarily to follow that anyimplication of a power to dismiss at pleasure is excluded. ”
That the Courts in England are now definitely getting away from theold view that the implied term of termination at pleasure in contractsof service under the Crown can only be impaired by statute or regulationhaving statutory force is evident from the following observa-tions of Denning J. (now Lord Denning) in Robertson v. Minister ofPensions1:
“ But those cases must now all be read in the light of the judgmentof Lord Atkin in Reilly v. The King (supra). The judgment shows that,in regard to contracts of service, the Crown is bound by its expresspromises as much as any subject. The cases where it has been heldentitled to dismiss at pleasure are based on an implied term whichcannot, of course, exist where there is an express term dealing withthe matter."
In this country tenure of office during the pleasure of the Crown was till1946 an implied term of the contract of service. In that year the follow-ing clause was introduced into the Ceylon (Constitution) Order inCouncil 1946:
“ Save as otherwise provided in this Order, every person holdingoffice under the Crown in respect of the Government of the Islandshall hold office during His Majesty’s pleasure". (s. 67).
Since then the condition that a public officer holds office during HerMajesty’s pleasure is a matter of written law. The same paramountlegislative instrument prescribes the conditions of tenure and providefor the appointment and dismissal of public officers. like any otherlegislative instrument effect must be given to it as a whole and it is notpermissible to ignore any part of it In the instant case the body autho-rised by law to dismiss the appellant has not done so. The provisionsof the legislative instrument governing dismissal not having been followedthe appellant has not been legally dismissed by the authority empoweredin law to do so.
1 (1949) J K- B. SZ7 at SSI-
SANSONI, J.—The Municipal Council of Negombo v. Benedict Fernando 157
For the above reasons the appeal Is allowed with costs both here andbelow and the appellant is declared entitled to the declaration heseeks.
PciXE, J.—I agree.
Appeal allowed.