T. S. FERNAXDO, J.—Herat v. Nugawela
1968Present: T. S. Fernando, J., and Tamblah, J.V. E. HERAT, Applicant, and E. A. NUGAWELA (Chairman of th©Public Service Commission) and 2 others, Respondents
S.C. 448167—Application for the issue of a mandate in the nature of aWrit of Certiorari on the Public Service Commission
Public officers—Public Service Commission—Power to require a public officer to retireafter the age of 55 years—1title fixing the age of optional retirement—Valid ly—Should the officer be given a hearing ?—Natural justice—Public ServiceCommission Pule 61—Ceylon (Constitution) Order in Council, 1046 (Cap. 379),88. US, 60—Public and Judicial Officers (Retirement) Ordinance (Cap. 355),8. 2—Ceylon Independence Order in Council, 1947 (Cap. 377), s. 8.
Section 60 of the Ceylon (Constitution) Order in Council, 1946, read with therules passed under section 2 of the Public and Judicial Officers (Retirement)Ordinance and with the Proclamation made under section 8 of the Ceylon(Independence) Order in Council, 1947, empowers the Public ServiceCommission to require a public officer to retire from the public service upon hiscompleting the ago of fifty-five years or at any time thereafter.
Quaere, whether the public officer should bo given a hearing before he isrequired to retire.
Application for a writ of certiorari on the Public ServiceCommission.
C. Thiagalingam, Q.C., with A. H. C. de Silva, Q.C., N. Sivagnana-sunderam, E. B. Vannitamby and T. Jothilingam, for the applicant.
H. L. de Silva, Crown Counsel, for th© respondent.
Cur. adv. vult.
March 18,1968. T. S. Fernajjdo, J.—
The applicant joined the Public Service on January 4, 1937 and servedin the Department of Public Works where at the date of the filing ofthis application ho was occupying the post of Deputy Director of PublicWorks. Ho reached the age of 55 years on September 3, 1967.
The Administrative Regulations of the Government require a publicservant who wishes to continue in service after the age of 55 years tomake an application for that purpose to the Head of his Department.In compliance with the relevant administrative regulation (187), theapplicant by letter A of ]larch 3, 1967 informed the Director that hewished to continue in service after September 3, 1967. In reply to thisletter the Director by letter B of June 23, 1967 informed the applicantthat he proposed to take steps to retire him from th# public service asfrom September 3, 1967, and called upon him to make any stafbmentlxx—23
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T. S. FERNAJJDO, J.—Herat v. Nugawela
he desired so that it may be forwarded to the Permanent Secretary ofthe Ministry of Public Works. By his letter C of June 30, 1967, theapplicant made representations to the Public Service Commission insupport of his request that he be allowed to remain in the public serviceeven after he has reached the age of 55 years. The Permanent Secretaryof the Ministry by letter E of September 5, 1967 intimated to the applicantthat the Public Service Commission had ordered that he be retired fromthe public service after three months’ notice and that, accordingly, hehas made order for retirement of the applicant as from December 6,1967.
On this application the applicant seeks a mandate in the nature of awrit of certiorari from this Court quashing the order of retirement madeby the Public Service Commission on two main grounds, (1) that theCommission had no legal power or authority to order his retirement and(2) that, if it did have such power or authority, the order has been madein excess of that authority and contrary to the principles of naturaljustice.
With the introduction of a new Constitution for Ceylon by the Ceylon(Constitution) Order in Council, 1946, the appointment, transfer, dismissaland disciplinary control of public officers became vested in the PublicService Commission (section 60) established in the manner described insection 58 of that Order in Council. The ordinary meaning of the word“ dismiss ” when used in relation to employment is wide enough toinclude a release or other termination ; but, even on an assumption thatpower to retire public officers is not vested in the Public ServiceCommission by the (Constitution) Order in Council as such, it isundeniable that such a power can bo granted to it by other law.The Public and Judicial Officers (Retirement) Ordinance (now Cap. 355)makes provision for the compulsory retirement of public and judicialofficers. Section 2 (1) of that Ordinance empowers the Governor-Generalto make rules regulating the ago at which, the reasons for which, and theconditions subject to which, public or judicial officers shall be required toretire from the public or judicial service. Section 2 (2) enacts that “ inparticular and without prejudice to the generality of the power conferredby the preceding sub-section, such rules may—
prescribe the age at which the retirement of publio or judicial
officers or of any particular class of public or judicial officersshall be compulsory ;
prescribe an age earlier than the age at which retirement from
the public or judicial service is compulsory at which the autho-rity competent to make the respective appointments may,subject to such conditions as to notice and otherwise as maybe prescribed, require public or judicial officers to retire fromthe publio or judicial service.”
• • •
An argument was addressed to us designed to show that themodification or adaptation of section 2 (2) (c) of this Ordinance to
T. S. FERNANDO, J.—Herat v. Nugawela
enable the authority competent to make the respective appointmentsto require retirement of public or judicial officers, as the case may be,was devoid of lawful authority ; but we think that this argument failedto take sufficient note of section 8 of the Ceylon (Independence) Orderin Council, 1947, which empowered the Governor-General to make byProclamation additions to and modifications or adaptations of anywritten law as he was satisfied was necessary to bring such written lawinto accord with that Order in Council and the (Constitution) Orderin Council. Whereas before the establishment of the Public ServiceCommission the Governor was the appointing authority, after theintroduction of the new Constitution, the Governor-General was requiredto take the action necessary to bring the written law into conformitywith the paramount law. The modification or adaptation that wasquestioned on behalf of the applicant was properly effected byProclamation published in Gazette 9,889 of July 28, 1948, and, in ouropinion, the written law is now correctly reproduced in the existingprovisions of Cap. 355.
Certain Rules published in Gazette 9,970 of April 29, 1949, have beenmade under section 2 of the Retirement Ordinance (Cap. 355), and thesehave been amended from time to time. Rule 1 (1) of the Rules of April1949 fixed the age of compulsory retirement at sixty years, while Rule2 (1) of the same Rules empowered the authority competent to make theappointment concerned also to require the officer in question to retireupon his completing the age of fifty-five years or at any time thereafter.This latter may, for convenience, be referred to as the rule fixing the ageof optional retirement. WTiile the April 1949 Rules specified in Ride2 (2) certain conditions which require to be specified before an officercould be called upon in terms of Rule 2 (1) to retire upon his reachingthe age of optional retirement, this Rule 2 (2) was deleted by the Rulepublished in Gazette 10,713 of September 17, 1954. It was submittedthat this deletion was capable of working injustice to officers who hadgiven of their best to the service concerned ; this submission was, in ouropinion, not devoid of merit, but, beyond making that observation,there is nothing that this Court can do in regard to the present state ofthe rules. We are bound to assume that the rule-making authority hadgood reason for the deletion of the sub-rule referred to above.
It was next submitted on behalf of the applicant that the rule inquestion (Rule 2 (1)) is ultra vires the powers of the Governor-Generalby reason of non-compliance with the conditions under which the rulecould have been made. More specifically, it was argued that, inasmuchas section 2 (1) of the Public and Judicial Officers (Retirement) Ordinanceempowers rules to bo made regulating the age at which, the reasons forwhich, and the conditions subjoct to which, officers shall be required toretire, the power has to be construed as one exercisable conjunctivelyand not disjunctively. For instance, the argument 4S that, if a rule•seeks to regulate an age of retirement, that rule should also regulatethe reasons for which and the conditions subject to which the retirement
T. S. FERNAMOO. J—Herat v. Nugawela
should take place. We did not find ourselves at all able to agree 'withthe argument that was put forward by counsel. For instance, Rule 1 (1)which fixes the age of compulsory retirement has been and obviouslycan be made by construing the rule-making power as one that can beexercised disjunctively. Even if it may be conceded, for the sake ofargument, that the reasons for requiring compulsory retirement at acertain age are obvious and may therefore be implied, such a rule doesnot need tc set out the conditions subject to which retirement shall takeplace. Then again, if the power conferred by section 2(1) has to be con-strued as one that has to be exercised conjunctively, such a constructioncannot easily be reconciled with section 2 (2) (c) which, while prescribingthe optional retiring age, soeks to empower the authority competent tomake the appointment to prescribe conditions as to notice or otherwise.The power to prescribe conditions granted by Rule 2 (2) (c) would clearlybe superfluous if the power granted by Rule 2 (1) is construed as oneexcercisable conjunctively. Examples of this nature could be multiplied.
It is not possible to place an interpretation on section 2 (1) of theOrdinance which reduces the Court to hold that in the case of certainrules the power is one that may be exercised disjunctively, while in thecase of others it must be exercised conjunctively. The contention thatRule 2 (1) is ultra vires is unsound and must be rejected. The first mainground relied on in support of the application therefore fails.
In regard to the other main ground upon which the intervention ofthis Court has been prayed for, viz. the denial of natural justice, learnedCrown Counsel brought to our notice a decision of the Supreme Court ofIndia in Dhingra v. Union of India 1 where that Court, in construingArticle 311(2) of the Constitution of India which is in the followingterms :
“ No such person as aforesaid shall be dismissed or removed orreduced in rank until he has been given a reasonable opportunity ofshowing cause against the action proposed to be taken in regard tohim.”
held that any and every termination of service is not a dismissal, removalor reduction in rank. In the words of Das, C.J., “ a termination ofservice brought about by the exercise of a contractual right is not per se
dismissal or removal Likewise, the termination of service by
compulsory retirement in terms of a specific rule regulating the conditionsof service is not tantamount to the infliction of a punishment and does
not attract Article 311 (2) It is true that misconduct, negligence,
inefficiency or other disqualification may be the motive or the inducingfactor which influences the Government to take action under the termsof the contract of employment or the specific service rule, nevertheless, ifa right exists, under the contract or the rules, to terminate theservice the motive operating on the mind of the <2overnme*it is ,
1 A. I. R. 1958, S. C. p. 37 at p. 49.
T. S. FERNANDO, J.—Herat v. Nugawela
wholly irrelevant The real test for determining whether the
reduction in such cases is or is not by way of punishment is to find outif the order for the reduction also visits the servant with any penalconsequences. ’ ’
The tests applied by the Supreme Court of India in the case referred toabove, it is interesting to note, were applied by the Privy Council in theMalaysian case of Munusamy v. Public Service Commission 1.
While I have referred to these two decisions of the Indian SupremeCourt and the Privy Council respectively, I must point out that in thecase of this applicant the Director of Public Works, the Head of theapplicant’s Department, at the time the applicant was informed byletter B that it is proposed to take steps to retire him from thePublic Service, called upon him to make any statement he desired sothat it may be forwarded to the Permanent Secretary. Public ServiceCommission Rule 61 requires the Permanent Secretary when making therecommendation to the Commission in respect of the proposal to retire «to forward the statement of the officer, if any. It is the Commission thatultimately decided that this officer should be retired. The applicationfiled in this Court itself recites that the procedure prescribed by thePublic Service Commission Rules has been followed and, indeed, theapplicant has appended to his application here a copy of his very fullstatement which we have no reason to think has not been considered bythe Commission before ordering his retirement. Therefore, even if thishad been a case where the applicant had to be given a hearing before theorder was made, the procedure of calling upon him to make a statement,a procedure of which he took advantage, would have rendered it difficultfor him to maintain his contention that there was here a denial of naturaljustice. Moreover, natural justice does not invariably require that apersonal hearing be granted.
For the reasons outlined above, we dismissed with costs the applicationfor intervention by this Court by way of certiorari, but we must herestate that learned Crown Counsel at the outset of his argument submittedthat, in any event, the order made by the Public Service Commission wasone that could not be questioned by way of an application for a writ ofcertiorari. There are certain decisions of this Court which support thiscontention of Crown Counsel, but we intimated to him at the time heraised the point that, having regard to the importance of deciding uponthe' validity of the Rules made under the (Retirement) Ordinance, weneed consider the point only if the question of the validity of the Rulesis decided in favour of the applicant. In the result it has been possiblefor us to dispose of this application without ourselves considering thequestion of the availability of the remedy sought for by the applicant.
Tam^iati, J.—J agree.•
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1 (1966) 3 W. L. R. 872.