THE ATTORNEY-GENERAL, Appellant, and M. CHANMUGAM, Respondent

017-NLR-NLR-V-71-THE-ATTORNEY-GENERAL-Appellant-and-M.-CHANMUGAM-Respondent.pdf


Attorney-General v. Chanmugam
V8
Present: Slrimane, J., and Siva Supramanlam, J.
THE ATTORNEY-GENERAL, Appellant, and M. CHANMUGAM,RespondentS. C. 182 of 1965—D. 0. Colombo, 12091Z
Commission of Inquiry—Procedure for proceedings before ruck Commission—Naturaljustice—Features thereof—Commissions of Inquiry Act {Cap. 393), s. 7 (d)—Action to declare null and void findings of Commission—Jurisdiction of DistrictCourt—Certiorari—Courts Ordinance [Cap. tf), s. 7—Civil Procedure Code,s. 2170.
Naval Officer—Suit by him against Crown for salary and allowances—Non-liabilityof Crown—Navy Pay Code—Navy Act (Cap. 359), os. 10, 161—Regulation 43.
Plaintiff, who was a naval officer, had been found by a Commission of Inquiryto have participated in smuggling liquor. His commission was consequentlywithdrawn by the Governor-General and he was informed that he would not beentitled to any pension or gratuity under the “ Navy Pay Code ”, which con-sisted of oertain Regulations made under section 161 of the Navy Act. In thepresent action he sued the Attorney-General, as representing the Crown, andprayed for a declaration that the findings of the Commission of Inquiry werenull and void and that he was entitled to certain emoluments. It was submittedon his behalf that the findings of the Commission of Inquiry were null and voidbecause the Commission had violated the principles of natural justioe by notgiving the plaintiff a fair and impartial hearing. It was complained that theCommissioner should have called the plaintiff after the other witnesses and notbefore.
Held, (i) that a Commission appointed under the Commissions of InquiryAct is master of its own procedure, and as long as the procedure adopted by itdoes not offend against one's sense of justice and fair play, it cannot besaid that there has been a violation of the principles of natural justioe. Nor isthe Commission bound to adhere strictly to the provisions of the EvidenceOrdinanoe.
(ii) that an officer in the Royal Ceylon Navy has no legal right to make aclaim against the Crown for salary, allowances, pension or gratuity.
Quaere, whether a District Court has jurisdiction to declare null and void,on any ground, the findings of a Commission of Inquiry.
A.PPEAL from judgment of the District Court, Colombo.
11. L. tie Silva, Crown Counsel, for the Defendant-Appellant.
H. W. Jayetoardene, Q.C., with L. C. Seneviratne and Ben Eliyatamby,for the Plaintiff-Respondent.
Our. ctdv. tmil.
8XRIMANE, J.—Attorney-General v. Chanmvgam
79
Deoember 21, 1067. Shumans, J.—
The plaintiff was a commissioned officer in the Royal Ceylon Navy, andat the times material to this action held the rank of First Lieutenant onboard the ship H. M. Cy. S. Mahasena. This ship and another sailedon a far Eastern cruise in August, 1960, and returned to Colombo inOctober that year. There was a widespread belief that officers on theseships had brought into the island a large quantity of liquor withoutpayment of duty, and after an inquiry by the Criminal Investigations. Department, His Excellency the Governor-General acting under theCommissions of Inquiry Act (Chapter 393) issued, in August, 1961, aCommission to Mr. K. D. de Silva, a retired Judge of this Court toinquire and report whether any naval officer on these ships had violated theprovisions of the Exchange Control Act or the Customs Ordinance.
The findings of the Commissioner in his report, in April 1963, wereagainst certain officers including the plaintiff who was found to haveparticipated in smuggling liquor into the island.
The plaintiff received his emoluments in accordance with regulationsmade under Section 161 of the Navy Act, Chapter 358, referred to as“ The Navy Pay Code”.
* .
When the Commission was sitting (i.e. on 30.3.62) this Code wasamended so that an officer suspended from his office would receive onlyhalf of the total emoluments payable to him during the period of hissuspension, and would not be paid the amount withheld from himif he was found, by the commission, to have committed any act whichamounted to an offence naval or civil.
The plaintiff was suspended on 30.3.62. His commission waswithdrawn by the Governor-General on 12.6.63, and on 28.6.63 hewas informed that he would not be entitled to any pension or gratuity.
In this action the plaintiff sued the Attorney-General, as representingthe Crown, and prayed for a declaration that the findings of the Com-mission are null and void and that he is entitled to his full emolumentsduring the period of his suspension and also pension or gratuity in sumsof Rs. 7,484/23 and Re. 14,875 respectively.
The learned District Judge entered judgment in his favour as prayedfor and the Attorney-General has appealed. The learned Crown Counselsubmitted that the District Judge’s finding, that the Commissioner hadacted contrary to the principles of natural justice was wrong, that theNavy Pay Code and the general principles of law applicable to the Crownand the Armed Forces did not permit the plaintiff to make a claim forpay and pension, and that in any event the District Court had nojurisdiction to grant a decree declaring the findings of the Commissionnull and void.
80
8IR1MANE, J.—Attorney-General v. Ghanmugam
It is neoeesary to understand the exact nature and scope of the plaintiff’sclaim ; and this was explained by learned Counsel who appeared for himin appeal. His position was that the Commissioner had violated theprinciples of natural justice and thereby deprived the plaintiff of his rightto a fair and impartial hearing to which he was entitled. For that reason(so it was submitted) the plaintiff was entitled to a declaration that thefindings against him were null and void.
The plaintiff’s claim for those emoluments which were withheld fromhis suspension is almost inextricably interwoven with the allegation thatthe Commissioner’s findings against him are tainted,—for,—if they arenot, it is not disputed that the deductions had been properly made. Theplaintiff’s olaim for a pension or gratuity was not supported in appealfor reasons which will presently appear.
So that, even assuming that the District Court has jurisdiction to grant adeclaratory decree in the terms prayed for, the plaintiff’s claim is foundedentirely on the allegation that there has been a violation of the principlesof natural justice in the conduct of the inquiry held by the Commissioner.
I shall, therefore, examine this allegation first, because it formsthe basis of the plaintiff’s claim. The document D2 shows that theCommissioner’s request published in the newspapers, for writtenrepresentations, met with little response. He had before him thestatements made by various persons to the Criminal InvestigationsDepartment. These statements contained some incriminating evidenceagainst 30 officers of whom the plaintiff was one. They were summonedas persons concerned in the inquiry. The terms of the Commission wereexplained to them. The Commissioner also had before him somedocumentary evidence which showed that a fairly large quantityof liquor and cigarettes had been issued to the plaintiff.
The plaintiff was then invited to give evidence:—he protested—butdid so. He was represented by Counsel at the time. He was always giventhe right to appear by his Counsel. He was afforded every opportunityof cross-examining every witness called by the Crown Counsel who hadassisted the Commissioner at the inquiry. It is incorrect to say (asalleged in the plaint) that the Commissioner refused to permit cross-examination of witnesses. His refusal was of an application for thetender of witnesses not called, for cross-examination. Nor was thereany refusal to permit the plaintiff or any of the other officers to callwitnesses. Here again it was an application made to the Commissionerthat he himself should call witnesses (whom he apparently considered to beunnecessary ); that was refused ;—and that application was made notby the plaintiff but by a Counsel appearing for another officer. TheCommissioner was always prepared to hear any evidence which theplaintiff or any other officer wished to place before him. At the end ofthe evidence the Commissioner had explained to the officers concerned(including the plaintiff) the points in the evidence against them, and afforded
SntlMANE, J.—Attorney-General v. Ohemmugam
81
them every opportunity of giving evidence themselves or calling anywitnesses in order to meet those points. The plaintiff who hadsummoned two witnesses chose not to call them or give any furtherevidence. The complaint now made is, that the Commissioner should havecalled the plaintiff after the other witnesses and not before. The primaryconcern of the Commission was to ascertain the facts. It is notincumbent on a Commissioner appointed for this purpose to follow aprocedure appropriate to a Criminal Court. No charges need be framedand there can be no legal objection to the plaintiff being called as awitness at an early stage, if the plaintiff was made aware of theallegations made against him and given an opportunity of meeting them.
A Commission such as this is master of its own procedure, and as longas the procedure adopted by it does not offend against one's sense ofjustice and fair play, it cannot be said that there has been a violation ofthe principles of natural justice.
The next point urged in support of this contention was that a statement.made to the police by one Lieutenant Brian Perera had been improperlyused. He was one of the officers " concerned ” in this inquiry, and hadmade a statement in the course of the investigations by the police, partsof whioh were unfavourable to the plaintiff. Brian Perera was calledby the Commissioner to give evidence, but refused to do so. The state-ment was then proved by calling the police officer who recorded it, andthe plaintiff was furnished with a copy of those parts of the statementwhioh affected him. It was submitted that the use of the statementwithout the evidence of Brian Perera himself was improper. As statedearlier, Brian Perera was, in fact, called by the Commissioner but refusedto testify. The statement would, of course, have been inadmissible in aCourt of law under the provisions of the Evidence Ordinance. But, afact finding Commission is not bound to adhere strictly to the provisionsof the Evidenoe Ordinance. In fact, Section 7 (d) of the Commissionsof Inquiry Act, Chapter 393, provides that a Commission appointed underthe Act shall have power—
“ (d) Notwithstanding any of the provisions of the Evidence. Ordinance to admit any evidence, whether written ororal, which might be inadmissible in civil or criminalproceedings; ”
The learned District Judge appears to have attached too muchimportance to a remark made by the Commissioner in the course of adiscussion with Counsel that the principles of natural justice affect a Courtof Justice and not a Court of inquiry,—and then asked the questionperhaps rhetorically, “ What constitutes natural justice 1 But despitethese remarks, an examination of the facts show that the Commissionerhas acted fairly and impartially according to the rules of reason andjustice. In Ridge v. Baldwin1 Lord Hodson referred (at page 114)
11*963) 2 A. E. B. 66.
12 – PP 006137 (98/08)
82
fcjlRDiANE, J.—Attorney-General v. Ghanmugam
to the three features of natural justice which stand out—(1) the right tobe heard by an unbiassed tribunal, (2) the right to have notice of chargesof misconduct, (3) the right to be heard in answer to those charges.
None of these rights were denied to the plaintiff at this inquiry.
The plaintiff’s claim for a declaration that the findings of theCommission are null and void (assuming again that the District Courthas power to grant it) must fail. Consequently, his claim for thoseemoluments withheld from him during the period of his suspension mustalso fail.
The next ground urged for the appellant constitutes a further bar tothat claim, viz., that an officer in the Royal Ceylon Navy has no legalright to make a claim for salary and allowances against the Crown.
As stated earlier, payments to Naval Officers are granted in accordancewith regulations made under section 161 of the Navy Act. Theseregulations provide a scale of salary and allowances payable to those holdingdifferent ranks in the Navy. There is no legal right conferred on thoseto whom the payments may be made. It is true that regulation 43, forexample, provides that “ the pay and allowances to which an officer orseaman is entitled shall be issued to him monthly ”, but this regulationis really directed to specify the period of time at which payments shouldbe made. The words are, in my opinion, insufficient to create a legalobligation to pay. One notices here the presence of section 24 in theArmy Act (Chapter 357) and in the Air Force Act (Chapter 359). Thosesections enact that officers of those Forces “ shall be entitled to such payand allowances and to be quartered in such manner as may be prescribedI must not be understood to say that soldiers and airmen are entitled tomake claims for pay and allowances against the Crown, I only wish tomake it clear that an argument which may be available to them cannotbe advanced by those to whom the Navy Act applies. I do not thinkthat the latter are in any better position than Naval Officers in Englandwho receive their pay and allowances on the authority of a Royal Warrant.There are a number of cases in England whero it has been held that noengagement made by the Crown with any of its military or naval officersin respect of services, can be enforced in any Court of Law (seeNitcheU v. The Queen1 and Leaman v. The King l). Nor indeed do civilofficers employed by the Crown enjoy such a right (see Nixon v. TheAttorney-General3 and the local case of The Attorney-General v.Kodesuxxran*). Anson (Law and Custom of the Constitution, 4th Edition,Volume II, Part II) dealing with claims against the Crown says atpage 335:
“ A farther limitation of the liability of the Crown, and a vital one^inpractice, is the fact that no servant of the Crown, military, naval, airor civil, has any rights enforceable against the Crown in reape ct^of a
1 {1890) 1 Q. B. D. 121.* (1930) 1 Chancery Division 666.
* (1920) 3 K. B. D. 663.* (^7) 70 N. L. R. 121.
8IRIMANE, J.—Attorney-General v. Ohanmugam
89
contract of servioe, e.g., as regards salary or pension. It is an essentia!character of all Crown Service that, apart from statutory provision,the Crown has cm absolute right to dispense with any officer’s servicesand that it lies with it to pay its servants at its pleasure.”
Section 10 of the Navy act provides that “ Every commissioned officershall hold his appointment during the Govemor-QeneraTs pleasure ”.It is an incidence of holding office at pleasure that the holder has nolegally enforceable right against his employer.
The plaintiff’s claim against the Crown for a pension or gratuity mustalso foil on this same ground. Counsel for the respondent, however,said that he was not supporting that claim on the terms of the regulationsthemselves which have been produced in the case marked D 44.According to those regulations an officer may be paid a pension or agratuity if he either retires or is invalided. Sinoe neither of theseconditions apply to the plaintiff this claim was not supported.
In view of the findings above it is unnecessary to decide the questionof jurisdiction. Learned Grown Counsel argued, with much force, thatthe jurisdiction of the District Court was statutory and conferred on itby the Courts Ordinance (Chapter 6),—that it was an inferior Court (theonly superior Court being the Supreme Court under section 7 of the CourtsOrdinance)—and that a District Court had no supervisory jurisdiction.He contended that a District Court had no jurisdiction to declare nulland void the findings of a Commission, on any ground whatsoever. Heconceded that the plaintiff may have applied to this Court to quash theproceedings by way of Certiorari if there had been a violation of theprinciples of natural justice, but he strongly argued against a DistrictCourt granting a declaratory decree. In England it has been held thatCertiorari does not exclude the declaratory action (see Cooper v. Wilson1);but there, it is the High Court which has jurisdiction to grant bothremedies. In regard to the scope of the declaratory action Lord Denningsaid in Barnard v. National Dock Labour Board2;
“ I know of no limit to the power of the Court, to grant a declarationexcept such limit as it may in its discretion impose on itself, and theCourt should not, I think, tie its hands in this matter of statutorytribunals.”
Here, the Supreme Court does not exercise original jurisdiction in grantingdeclaratory decrees which are granted only by the District Court. Section217 of the Civil Procedure Code which classifies decrees for purposes ofexecution recognizes (section 2176) decrees which declare a right or
status.
* (J937) 2 A. E. B. 126.
• (1953) 1 A. E. B. 1113 at 1119.
84
8LRIMANE, J.—Attorney-General v. Chanmugam
What are the limits within which a District Court in Ceylon can grantsuch a decree ?
There are certain decisions of this Court which favour the view thatthe jurisdiction of the District Court in this matter should not berestricted.
In Attorney-General v. Sabaratnam1 Gratiaen J. (with Swan J.agreeing) affirmed a declaratory decree granted by a District Court toan overseer in the Public Works Department, that no debt wasdue from him to the Crown (he complained that the Government waswithholding his pension on the ground that an overpayment had beenmade to him). In LadamuitwpiUai v. the Attorney-Generala, where thelegality of the decision of a Land Commissioner to acquire a land wasquestioned, Basnayake, C.J. (with Pulle, J. agreeing) was of the viewthat a declaratory decree should be granted and that certiorari didnot exclude a regular action when both remedies are available.
In Thiagarajah v. Karthigesu*, H. N. G. Fernando, C.J. (who wasassociated with G. P. A. Silva, J.) took the view that jurisdiction hadbeen conferred on the District Courts to grant declaratory decrees,
before the Courts Ordinance came into operation, and said, “in
conferring that jurisdiction, the Legislature of Ceylon intended to adoptthe English law contained in Order XXV, Rule 5 of the English Buies ofthe Supreme Court, 1883, to the following effect: ‘ No action or pro-ceeding shall be open to objection, on the ground that a merely declaratoryjudgment or order is sought thereby, and the Court may make bindingdeclarations of right whether any consequential relief is or could beclaimed or not.’ ” It is under this Order that the English Courts grantdeclaratory decrees. It was submitted for the respondent that theDistrict Courts in Ceylon had the same jurisdiction as the High Court inEngland to grant declaratory decrees. Learned Crown Counsel, however,sought to canvass the finding in Thiagarajah'8 case in so far as it relatedto “ jurisdiction ” of the District Courts.
I do not propose to examine this question and express an opinion asit is unnecessary to do so in this case, because the appellant must sucoeedon the other two grounds discussed above.
The appeal is allowed and the plaintiff’s action dismissed with costs inboth Courts.
.Siva Sutramaniam, J.—I agree.
Appeal allowed.
» (1955) 57 N. L. R. 481.1 (1957) 59 N. L. R. 323.
• (1966) 69 N. L. R. 73.