Legal Services and Laws of Sri Lanka


SLR-1985 Vol.1-P156

SLR - 1985 Vol.1, Page No - 156

PERERA

v.

ATTORNEY - GENERAL
COURT OF APPEAL

G.P.S DE SILVA, J AND JAMEEL, J

C.A.415/76 (DC) COLOMBO A/54/Z

JANUARY 24, 1895

Army Act, Section 10 - Withdrawal of Commission as Lieutenant in Sri Lanka Army Volunteer Force - Regulations 72and73of
the Sri Lanka Volunteer Force Regulations - Holding office during pleasure - Application of principles of natural justicein
cases of dismissal from office held during pleasure.

The plaintiff a commissioned Lieutenant in the Sri Lanka Volunteer Forcewasplacedoncompulsoryleaveandlaterhis
commission was withdrawn in terms of Regulation 73 of the Sri Lanka Volunteer Force. He wasgivennoopportunitytoshow
cause.

Held-
The plaintiff held office during pleasure and hence his contract of service with the State wasterminableatwillwithout
any right to a prior hearing. There is no enforceable contract between the officers in the Army and the State'.Norcanan
action in delict lie because plaintiff must show infringement of a legal right. But here he has no such right. Hencehehas
no right of action.
Cases referred to :
1. Ridge v. Baldwin [1963] 2 All ER 66.
2. Mitchell v. The Queen [1890] [1896] 1QB 121.
3. Leaman v. The King (1920) 3KB 663.
4. The Attorney-General v. Chanmugam (1967) 71 NLR 78, 82.
5. Kodeeswaran v. Attorney-General (1969) 72 NLR 337, 345.
APPEAL from the District Court of Colombo.
D. R. P. Goonetilleke for appellant.
Sarath Silva, D. S. G. for respondent.
March 8, 1985.
G. P. S. DE SILVA, J.
The plaintiff was commissioned as Lieutenant in the Sri Lanka Army Volunteer Force on 6thMay,1971.On24.10:72hewas
placed Son compulsory leave without'' pay. Thereafter his Commission was withdrawnwitheffectfrom13thMarch1973by
gazette No. 53 of 30th March 1973. The Commander of the army by letter dated 29.5.73 informed himthathisCommissionwas
withdrawn in terms of regulation 73 of the Sri Lanka Volunteer, Force Regulations. On t2-th December 1974 he institutedthis
action against the Attorney-General complaining that the withdrawal of the Commissionwascontrarytotheprinciplesof
natural justice that it was wrongful, without reasonable grounds, mala fide and for extraneous reasons.thathesuffered
damages which he estimates at Rs. 50,0 He sought a declaration (a) that the withdrawal ofhisCommissionwasillegaland
wrongful (b) that he is entitled to the restoration of -the Commission with effect from 13.3.73(c) thatheisentitled
to his salary from 24.10.72 and to damages in a sum of Rs. 50,000.

At the trial the District Judge tried issue Nos. 17, '18, 19, 20, 21, 22 and, 23 as preliminary issues of law.
(17) Was the dismissal from office by gazette notification referred to in issue No. 5 ? (i.e. gazette No. 53 of 30.3.73).
(18) Did the plaintiff hold office at the pleasure of the President of Sri Lanka ?
(19)Can the plaintiff institute an action to recover salary and other allowances ?
(20) If issues 17 and/or 18 and/or 19 are answered in favour of the defendant
(a) can the plaintiff maintain this action ?
(b) is the plaintiff entitled to the relief prayed for in the plaint'?
(21) Is the dismissal by the President a matter justiciable in this court ?
(22) Is the placing of the plaintiff on compulsory leave without salary a matter justiciable in this Court ?
(23) If the answer to issues 21 and/or 22 is in the negative has the Court jurisdiction to hear and determine this action`?
The District Judge, having heard :the submissions of. counsel answered the issues in favour of thedefendantanddismissed
the plaintiff's action. The plaintiff has now preferred an appeal.
Mr. D. R. P. Goonetilleke, counsel for the plaintiff-appellant `referred ustoregulation72and73oftheSriLanka
Volunteer Force Regulations. Regulation 73 was relied on by the Army Commander in his letter of29.5.73totheplaintiff.
The regulations read thus :
'72. For any reason other than misconduct, an officer may at any time be called upon to resign hiscommissionshould,the,
circumstances of the case in... he opinion of the. Governor General require it.
73. An officer may at any time be called upontoresignhiscommissionorberemovedfromtheVolunteerForcefor
misconduct".

It was counsel's submission that there was no charge of misconduct against the plaintiff nor was aninquiryheldIntoany
alleged misconduct. Counsel further urged that' in- these 'circumstances' the officer must be called upon to, resign,before
the commission is withdrawn. The plaintiff, however"was not" called upon to resign before hiscommission'waswithdrawn.
Mr Goonetilleke maintained that an imperative requirement as to procedure was not complied with and hence` the withdrawalof
the `Commission was wrongful.
Relying on the decision of the House of Lords in Ridgev.Baldwin,(1)Mr.Goonetillekefurthercontendedthatthe..
withdrawal of the Commission by the President had no legal effect whatsoever since the plaintiff was deniedan,opportunity
of showing cause against the withdrawal of his Commission. In short, the submission was that there was a clearviolationof
the audi alteram partem rule.

On a consideration of the averments in the plaint read as a whole, it seems to me that Mr. SarathSilva,DeputySolicitor-
General, is right in his submission that the action is framed on the basis of a breach ofthecontractofemploymentand
that the damages claimed is for the wrongful withdrawal of the Commission - vide in particular paragraphs 10 and 1 1ofthe
plaint. The preliminary issues raised on behalf of the defendant related to two objections. The first was thatnocauseof
action has accrued to the- plaintiff to sue the defendant and the second was that the court ad no jurisdictiontohearand
determine the action.
On the first point it is very relevant to note that the plaintiff held his appointment "at pleasure". Section 10 of theArmy
Act (Chap. 357) enacts that 'Every officer shall hold his appointment during the Governor-General'spleasure'.Section107
(1) of the Constitution of 1972 (which was in operation on the date of 'the withdrawal of the Commission and at thetimeof
the institution of the action) provides that "save as otherwise expressly provided by the Constitution, everystateofficer
shall hold. office during the' pleasure of the President". 1twasnotcontendedthattheplaintiffwasnota"State
officer". His contract of service with the State was terminable at will without assigning reasons. The principle is thatthe
public interest requires that the State should be in- a position to terminate the services of its employeesatanymoment.
The D.S.G. relied on the well known case of Mitchell v. The Queen (2) wherein Lord Esherintheopeningsentenceofhis
judgment states:
"I agree with Matthew, J. that the law is as clear as it can be, and that it has-been laid down over and overagainasthe
rule on this subject that all engagements between those in the military service of the Crown and,theCrownarevoluntary
only on, the part of the Crown and give no occasion for an action in respect of any alleged contract".
And Lord Esher concludes his judgment with these words.
"It has been decided over and over again that, whatever means of redress anofficermayhaveinrespect-ofasupposed'
grievance, he cannot as between himself and-the Crown take proceedings in the Court of Law in respect of anythingwhichhas
happened between him and the Crown in consequence of his being a soldier. The Courts of law have nothing whatever to dowith
such a matter".

A similar view was expressed in Leaman v. The King (3). Both. these cases were cited -with approval by Sirimane,J.inThe
Attorney-General v. Chanmugam (4). It may not be irrelevant to note that Lord Diplock in Kodeeswaran v: Attorney-General(5)
observed :
"As already pointed out the current of authority for a.-hundred years before 1926, thoughsparse,wastotheeffect-that
arrears of salary of a civil servant of the Crown, as distinguished from a ,member of the armed servicesconstituted adebt
recoverable by Petiton of Right". (The emphasis is mine)

The: fact that there is no enforceable' contract between officers in the Army and theStateisdiscussedbyWoeinhis
"Administrative Law", 5th Edition, page 65
'In the armed services thelack of any legal remedy for wrongful dismissal- has been madeclearin.aparallellineof
decisions-:which are if anything more categorical than those dealing with civilservants.Itwasinfactthedecisions
about military service which provided persuasive precedents` for thedecisionsaboutcivilservice........Themilitary
cases tend more to the conclusion that this type of Crown service is not Contractual at all. This was flatly statedbyLord
Esher, M. R. in 1890................"

Having regard to the principles set out in these decision and the "pleasure priniciple" enacted in the Army Actandinthe
Constitution, I am of the view that Mr. Goonetilleke' s submission based n regulations 72 and 73 cannot succeed.
I turn next to the of the denial of the principles. of. natural justice. Admittedly the, plaintiff was, not heard beforehis
Commission was withdrawn. Does this fact give rise to a cause of action ? The answer is emphatically inthenegative.Lord
Reid in Ridge v. Baldwin (supra) in considering the application of the principles of natural justice tocasesofdismissal
stated.
"These appear to fall into three classes, dismissal of a servantbyhismaster,dismissalfromanofficeheldduring
pleasure, and dismissal from an office where there must be something against a man to .warrant his dismissal . . . . .there
are many cases where a man holds office at pleasure. Apart from judges and others whosetenureofofficeisgovernedby
statute, all servants and officers of the Crown hold office, at pleasure..... It ha always been held, I thinkrightly,that
such an officer has no right to be heard before he is dismissed and the reason is clear. As the person having the,powerof
dismissal, need not have anything against the officer, he need not :give .any reason I fully accept-that where anofficeis
simply held at pleasure-the-person having power of dismissal cannot be bound to disclose his reasons. No doubthewouldin
many cases tell the officer and hear his explanation before deciding to dismiss him. But if' he is not bound to disclosehis
reason and does not do so, then, if the court cannot" require him to do so, it cannot determine whether itwouldbe-fair,
to hear the officer's case before taking action". -
Finally, it was contended on-behalf of the plaintiff that the action is based on delictual liability. As stated earlier,the
averments in the plaint do not. support such a contention and the claim .forRs.50,000asdamages.appearstobefor
wrongful dismissal. In ,an action in delict the, act complained of should be legally wrongful as regards: the: plaintiffand
the plaintiff must show that a legal right of his has been' infringed. Plainly, thewithdrawaloftheCommissionbythe
President: does not constitute an infringement of a right of the plaintiff. In, any event, the breach of a contact by oneof
the parties to it is not a delict - Principles of South African Law by. Wille, 5th Editionpage 501.

On a consideration of the matters set out above, it seems clear that the plaint does not disclose a cause. Inthisviewof
the of action, matter, it is unnecessary to consider the jurisdictional issue based ontheimmunityofthePresidentin
respect of civil proceedings-: section 23 (1) and the ouster clause embodied in section 106 (5) of the 1972 Constitution.In
the result, the appeal fails and must e order as to appeal.
JAMEEL, J.

Appeal dismissed.


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