Legal Services and Laws of Sri Lanka


SLR - 1978-79-80 Vol.1-P60

SLR - 1978-79-80 Vol.1, Page No - 60

ADIAPATHAN
v.
ATTORNEY-GENERAL & ANOTHER
SUPREME COURT.
SAMERAWICKRAME, J., THAMOTHERAM, J. AND ISMAIL, J.
S.C. APPLICATION NO. 17/79
JUNE 13, 15, 1979.

Constitution of Sri Lanka (1978), Articles 22 (2) (a) and 126-Cheque in payment of Provident FundBenefits-Whetherpartof
communication received from department administering fund-Cheque written in Sinhala-Right of petitioner tohaveitwritten
in Tamil-Whether drawing of cheque in Sinhala denial of petitioner's rights under Article 22 (2) (a) of the Constitution
The petitioner made this application under Article 126 of the Constitution of Sri Lanka (1978) praying for an order thatthe
cheque in payment of a sum due to him as Employee's Provident Fund Benefits should be written in Tamil. He relied onArticle
22 (2) (a) and it was submitted on his behalf thatthechequeformedpartofthecommunicationsenttohimbythe
Superintendent of the Provident Fund (the 2nd Respondent) in his official capacity. Itwasalsosubmittedonhisbehalf
that, in any event, this provision entitled him to obtain a cheque written in The Tamil language.

Held :
The cheque was not part of the communication made by the Superintendent of the Provident Fund to the petitioneranditwas
nothing more than an enclosure. The petitioner was accordingly not entitled to relief underArticle126whichprovideda
remedy only in respect of a denial of fundamental or language rights granted by the Constitution.
Per SAMERAWICKRAME, J.
"it appears to us, however, that it is possible that in terms of theordinarylawoftheland,thepetitionermaybe
entitled to receive, a cheque written in the language in which he wished it to be written.Thepetitionerisentitledto
receive payment and ordinarily payment should be made by way of legal tender in the absence of anylegalprovisionorany
express or implied agreement for the payment to be made by cheque. If there is an absenceofsuchprovisionoragreement
applicable in this
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case, the petitioner will strictly be entitled to have payment made by legal. tender and paymentbychequecouldonlybe
made to him by agreement. If the petitioner wished the cheque to be written in the Tamil language, thenthe2ndrespondent
will have to send him a cheque written in that language or make payment by way of legal tender. But if such be thecasethe
petitioner would be entitled to a cheque written in the Tamil language by reason of the civil law of the country andnotby
reason of any provision of the Constitution."
APPLICATION under section 126 of the Constitution
V.S.A. Pullenayagam, with S.C. Chandrahasan, G. Kumaralingam and Mrs. S. Gnanakaran, for the petitioner.
K.M.M.B. Kulatunga, Additional Solicitor-General, with D. Premaratne, Senior State Counsel, andC.Sithamparapillai,State
Counsel, for the respondents.
Cur adv. vult
June 19, 1979.
SAMERAWICKRAME, J.
The petitioner was entitled to payment of a sum of Rs. 5,585.77 in respect of Employees' Provident Fund benefits duetohim
and on or about the 6th November, 1978, he received a cheque for that amount written in- Sinhala. The petitioner statesthat
he cannot read or understand Sinhala and he returned the cheque and requested the 2nd respondent, who istheSuperintendent
of the Employees' Provident Fund of the Central Bank, to send him a cheque drawninTamil.Thereafter,hesentthe2nd
respondent several reminders. In or about March 1979- ,he received a communication from the 2nd respondent inwhichitwas
stated that the procedure to be adopted in regard to payments was being taken up with the appropriateauthoritiesandthat
once a decision has been reached, action will be taken to make payment to the petitioner in accordancewithsuchdecision,
but in the meanwhile, if the petitioner wished to have his E.P.F. benefits paidbycheque,itcouldbepaidbycheque
written in the official language. He wished to know if the petitioner wished payment to bemadeimmediatelyinthatway.
Petitioner states that he informed the 2nd respondent that he is not prepared to accept achequewrittenintheofficial
language. On or about the 20th April,1979,petitionerhasfiledthisapplicationintermsofArticle126ofthe
Constitution of the Democratic Socialist Republic of Sri Lanka praying for an order directing the 2nd respondent to issueto
him a cheque written in Tamil for the amount due to him.
2nd respondent has filed affidavit in which he sets out the steps taken by him in obtaining directions fromtheappropriate
authorities, in respect of the demand made by the petitioner and he states that on the adviceoftheAttorney-General,he
sent the
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petitioner a -cheque written in Sinhala with a Tamil translation. This has beendone,however,afterthepetitionerhad
filed the present application in this Court.
There was some discussion whether an envelope containing a communication within the meaning ofArticle22(2)(a)should
itself be written in the national language. This question has not been raised in thepetitionbythepetitionerandwe,
therefore, did not deal with it.
Though the petitioner relied in his petition on Article 22 (2) (a) and (c) and setthoseprovisionsout,learnedCounsel
appearing for the petitioner stated that he was not relying on Article 22 (2) (c) which provides that apersonisentitled
"where a document is executed by any official for the purpose of being issued to him to obtain such documentortranslation
thereof, in either of the national languages." We do not think that we should express any viewinrespectofaprovision
that is not relied upon by Counsel and accordingly we leave the questions whether the drawing ofachequeamountstothe
execution of a document within the meaning of 22 (2) (c) and, if so, whether a person is entitled to obtain achequeitself
in the national language of his choice to be decided on an appropriate occasion, when it arises.

Article 22 (2) (a) provides that a person shall be entitled "to receive communication from, and to communicateandtransact
business with, any official in his official capacity,ineitherofthenationallanguages."Learnedcounselforthe
petitioner submitted that the cheque formed part of the communication received from the 2nd respondent madebyhiminhis
official capacity. He further submitted that in any event the provision that a person, shallbeentitledtocommunication
and to transact business with any official in either of the official languages entitled the petitionertoobtainacheque
written in the Tamil language. Learned counsel for the respondent referred ustosection22(1)whichprovidesthatthe
official language shall be the language of administration throughout Sri Lanka and he stressed the proviso to thatprovision
which states that the Tamil language shall also be used as thelanguageofadministrationforcertainpurposesinthe
Northern and Eastern provinces. Learned counsel for the respondent submitted that if the chequewasdrawninColombo,it
would ordinarily be drawn in the official language just as if it had been drawn in the Northern and Eastern provinces itmay
well have been drawn in the Tamil language.He further submittedthatinanyeventthechequewasnotpartofthe
communication made by the 2nd respondent and that the latter part of the provision entitling the
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petitioner to transact business with the 2nd respondent in either of the national languages did not entitle him to receivea
cheque written in the Tamil language.
It appears to us that the cheque is not part of the communicationmade by the 2nd respondent to the petitioner. Anaddendum
or appendix may be added to a letter or other writing which is to be read as part and parcel of it. The cheque,however,is
not of this nature and is nothing more than an enclosure. The latter part of the section entitled aperson"tocommunicate
and transact business". It appears to us that these words refer tothenegotiations,discussions,offerandacceptances
which result in business. In the case of a sale, they have no application to the thing bought. The receipt of a cheque ison
a par with the receipt of currency whether by way of coins or notes of foreign currency. We are, therefore, of the viewthat
the provisions in Article 22(2) (al does not entitle the petitioner tohaveachequewritteninaparticularnational
language.
The position might have been different had it been shown that the chequewouldrequiretobeendorsedintheofficial
language but there is no material before us which shows that that is the position.

It appears to us, however, that it is possible that in terms of the ordinary law of the land, the petitioner may beentitled
to receive a cheque written in the language in which he wished it to bewritten.Thepetitionerisentitledtoreceive
payment and ordinarily payment should be made by way of legal tender in the absence of any legal provision or any expressor
implied agreement for payment to be made by cheque. If there is an absence of such provision or agreement applicable inthis
case, the petitioner will strictly be entitled to have payment made by legal tender and payment by cheque could only bemade
to him by agreement. If the petitioner wished the cheque to be written in the Tamil Language, then the2ndrespondentwill
have to send him a cheque written in that language or make payment by way of legal tender.Butifsuchbethecasethe
petitioner would be entitled to a cheque written in the Tamil language by reason of the. civil law of the country and notby
reason of any provision of the Constitution. Consequently, on thedenialofhisright,thepetitionercannotmakean
application for relief under Article 126 of the Constitutionwhich providesaremedyonlyinrespectofadenialof
fundamental or language rights granted by the Constitution.
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The petitioner's application, therefore, fails and is dismissed. It appeared tous,however,thatthoughtheparticular
complaint the petitioner made in his application cannot be sustained, there can benodoubtthathehadsomesenseof
grievance in regard to the manner in which communication was made to him in regard to the payment of moneyduetohim.In
the circumstances, we do not make any order for payment of costs by him.
THAMOTHERAM, J. - I agree.
ISMAIL, J. - I agree.
Application dismissed.

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