Legal Services and Laws of Sri Lanka

SLR-1989 Vol.1-P115

SLR - 1989 Vol.1, Page No - 115





S.C. APPEAL NO. 80 of 1986

S C. (S.L.A.) APPLICATION NO. 1 65 of 1 986

CA. NO. 647 of 1 982 (F)

D.C. GALLE NO 4279/M

JUNE 28 AND OCTOBER 20, 1988

Constitution 1978, Article 55 (5) and Constitution 1972, Article 106(5)-Dismissal-Ouster-Pleasureprinciple-
Jurisdiction of Court - Date of appeal.

(1) While the provisions of the Constitution should be broadly and liberally interpreted so as to conserve ratherthattake
away the rights of the citizen, including his right to invokethejurisdictionoftheCourts,neverthelessfundamental
principles andtheexpressprovisionsoftheConstitutioncannotbedepartedfrominthecourseof"liberal"
interpretation. In considering the scope of" ouster" of the jurisdiction of the Courts effected by Section106(5)ofthe
Constitution of 1972 it must necessarily be borne in mind that one fundamental principle of service under the Slateisthat
public office is held at pleasure. unless expressly provided otherwise. The ouster clause was intended to give effect tothe
" pleasure principle ". It prevents the ground of dismissal being questioned the ouster clause complementsthatprinciple
by taking away the jurisdiction of the Courts to inquire into dismissals.
2. But an order or decision made by an official having no legal authority to do so. is in law null and void and Article
55(5) and Article 106(5) is no bar to the Court declaring it a nullity.
3. !n the case before Court (dismissal of a Grama Sevaka appointed after 1.1.1977 in terms of a circular) there is no such
want of authority or mala fide as would suffice to render the termination ultraviresorotherwiseanullity.The
expression "dismissal" in Article 106 must include everymodeofseveranceoftheemployer-employeerelationship
effected by or on behalf of the employer.
The termination in question was not ultra vires or a nullity, the ouster clauseapplied,andtheDistrictCourthadno
jurisdiction to inquire into, pronounce or otherwise call in question the dismissal of the Appellant.

(4) Unless there are circumstances indicating that the date set out in thedatestampisincorrect,thatdatemustbe
assumed to be the date on which the petition of appeal was filed in preference to the date of the journal entry which isnot
necessarily the date of lodging the papers. The date of the date stamp shows
the appeal was filed in time.

Cases referred to:
1. Abeywickrama v. Pathirana - [1 986] 1 SRI LR 120. 136, 139.
2. Elmore Perera v. Jayawickrema - [1985], 1 SRI LR 285. 301
3. Bandaranaike v. Weeraratne - [1981] 1 SRI LR 10, 16,
4. Abeywickrama v. Pathirana -. [19861 1 SRI LR 120, 155-7(also

[1984] 1 SRI LR 21 5, 217).
5. Wijesiri v. Siriwardene - [1982] 1 SRI LR 171,178.

APPEAL from judgment of the Court of Appeal.
Prins Gunasekera with R. K. Sureshchandra and K. Abhayapala for the Plaintiff-Respondent-Appellant.
Shibly Aziz, Deputy Solicitor-General, with N. Kariapper, S.C., for the Defendant-Appellant-Respondent.
November 11, 1988
The Appellant was selected for appointment as a Grama Sevaka with effect from 1.2.1977, and was informedthathewouldbe
trained for a period not exceeding three months. Thereafter, the Government Agent, Galle, by letter dated 29.4.77,appointed
his as a Grama Sevaka in the Galle District with effect from 2.5.77 and set out the terms andconditionsofappointment
the appointment was permanent and pensionable,andwassubjecttoathree-yearprobationaryperiod.Itwasfurther
stipulated that his services could be terminated either during or at the end that period, if his services during thatperiod
were unsatisfactory and that if his services were satisfactory, he would be confirmed at the end of thatperiodinterms
of the establishments Code.

Soon after the General Election of 1977,newlyelectedMembersofParliamenthadexpressedtheirobjectionstothe
appointment of Grama Sevakas made after 18.5.77 (the made of dissolution of theNationalStateAssembly.)AMinistryof
Public Agents them to revoke all appointments of Grama Sevakas made after 18.5.77. The Appellant's appointment didnotfall
within the scope of that Circular, his application for that post having been made in response to aGazettenotificationin
October 1975. Another Circular dated 30.8.77 was sent, conveying a decision of the Minister directing the revocationofall
appointments of Grama Sevakas made after 1.1.77. The Government Agent, Galle, by letter dated 5.9.77 informedtheAppellant
that his services were " terminated " with immediate effect, and referred to the aforesaid Circular dated 30.8.77.

It is admitted that at the relevant time the appointing authority had thepowertoterminatetheservicesofapublic
officer, without assigning any reason, during the probationary period : this condition of employment was(andcontinuesto
be) recognised by the. Establishments Code, and was expressly mentioned in the aforesaid Gazette notification.

The Appellant instituted action in the District Court, praying for a declaration that the terminationofhisserviceswas
unlawful, ultra vires, unjust and null and void, and/or for damages in a sum of Rs. 60,000.
The question for determination by us relates to the defence pleaded in the answer thattheCourthadnojurisdictionby
reason of the provisions of Section 106 (5) of the Constitution of 1972 :

No institution administering justice shall have the power or jurisdiction to inquire into, pronounce upon orinanymanner
call in question, any recommendation, order or decisionoftheCabinetofMinisters,aMinister,theStateServices
Disciplinary Board, or a state officer, regarding any matter concerning appointments, transfers, dismissalsordisciplinary
matters of state officers. "
By an amended answer. Article 55 (5) of the 1978 Constitution was also pleaded, and the issue was raised atthetrialthat
the Court had no jurisdiction to hear and determine the action by reason ofthatArticle noreferencebeingmadeto
section 106 (5).
It had thus to be determined whether the "termination " of the services of the Appellant wasa"dismissal"withinthe
meaning of section 106 (5) if so, no Court had jurisdiction to inquireinto,pronounceuponorinanymannercallin
question such dismissal. The Appellant contended that " dismissal " did not include " termination " that"dismissal"
implied that the severance of the.employer-employeerelationshipwasonaccountofmisconductorfault,whereas"
termination " did not.

The learned District Judge determined the matter by reference only to Article 55 (5) of the 1 978 Constitution heheldthat
the " termination " of the Appellant'sservicesdidnotconstitutea"dismissal",andheldthattheCourthad
jurisdiction. Having answered other issues in favour of the Appellant he entered judgment in favour of the Appellant.
In the Court of Appeal, Counsel for both parties agreed that the relevant constitutional provisions thatwereoperativeat
the time of the appointment and termination of the Appellant were those of the 1972 Constitution, and invitedtheCourtto
act on the basis that the learned District Judge had interpreted section 106 (5) of the 1972 Constitutioninhisjudgment,
and to hear the appeal as though it were an appeal from a decision pertaining toaninterpretationofthatsection.The
Court of Appeal held that although the two provisions were similar, thelearnedDistrictJudgehadinfactinterpreted
Article 55 (5), and that in view of his failure to act in terms of Article 125, the judgment would have to besetasideon
that ground alone.

The Court of. Appeal further held, following Abeywickrama v. Pathirana (1), that, undersection106(5),itisonlyin
origin that Government service is contractual that once appointed .a state officer acquires a status to which the rightsand
duties imposed by public law attach and that all state officers held office during the pleasure of the President :
The general principle in public service is that a public officer holds office at pleasure. The constitutionaldoctrinethat
public officers hold office during pleasure has two important consequences :
1. The Government has a right to regulate or determine the tenure of its employees at pleasure notwithstanding.

anything in their contract to the contrary
2. Secondly the Government has no power to restrict or fetter its prerogative power of terminating the services

of the employee at pleasure, by any contract made with the employee. "

Thus the express terms of the contract cannot override the fundamental basis of the tenure ofofficeofpublicofficers..
Although that decision related to Article 55 (1) of the 1978 Constitution,theseobservationsareequallyapplicableto
section 107 (1). Indeed, the only difference is that Article-55 (5) introduced a significantexceptionthatthoughpublic
office is held " at pleasure ", powers of appointment, transfer, dismissal and disciplinary control must not be exercisedin
violation of fundamental and language rights, and that in respect of any such violationapublicofficermayinvokethe
jurisdiction of this Court, under Article 126 (1 ): Elmore Perera v. Jayawickrema (2).
Accordingly, it was rightly held that not only had the judgment of the learned District Judge to be set aside, butthatthe
Appellant's action had also to be dismissed.
Having held that' the Appellant was liable to be dismissed, " at pleasure ", from the public service,theCourtofAppeal
did not decide whether the "termination " of the Appellant's services amounted to a "dismissal"withinthemeaningof
section 106 (5), and if so whether section 106 (5) ousted the jurisdiction of the District Court.

Counsel for the Appellant contended that- section 106 (5) being a provision ousting the jurisdiction of the Courtsoughtto
be strictly construed, so as to limit the extent of the ouster that ".dismissal "shouldbeconfinedtothosemodesof
severance of the employer-employee relationship arising from the alleged misconduct or fault of theofficer andthat"
dismissal " should not be held to include " termination "of services without any such allegation of misconduct orfault.He
relied heavily upon the Sinhala words used in the letter of termination and in the Constitution, and upon certainprovisions
of the Establishments Code he referred to Chapter V of the Establishments Code now in force which, we wereassured,wasin
these respects the same as the provisions in force at the relevant time for his submission that therewerethreemodesin
which the employer could bring the employer-employee relationship to an end :" termination " of the appointmentorservices
of an officer holding a temporary or probationary appointment (section 6), " vacationofpost"byofficerswhoabsent
themselves fromdutywithoutleave(section7),anddismissal"of.officersformisconduct(section8).Different
consequences flowed from each of these : for instance, a " dismissed " officer could notbere-employed,whileonewhose
services were terminated while on probation could be re-employed.

The Deputy Solicitor-General submitted that the rules set out in the Establishments Code regardingthedelegationandthe
exercise of the powers of dismissal and disciplinary control had been formulated under the provisions of section106(3)
that these provisions referred to were thus within the ambit of " dismissal and disciplinary control" andtherefore"
termination " by the employer was one mode of" dismissal ".

While the provisions of the Constitution should be broadly and liberally interpreted, so astoconserveratherthantake
away the rights of the citizen, including his right-to invokethejurisdictionoftheCourts,neverthelessfundamental
principles and express provisions of the Constitution cannot be* departed from in the course of " liberal"interpretation,
in considering the scope of the " ouster " effected by section 106 (5),wehavenecessarilytobearinmindthatone
fundamental principle of service under the State is that publicofficeisheldatpleasure,unlessexpresslyprovided
otherwise. The ouster clause was intended to give effect to the " pleasure principle ", andnottowhittleitdown.The
application of the " pleasure principle " prevents the ground of dismissal being questioned theoustercausecomplements
that principle by taking away the jurisdiction of the Courts to inquire into dismissals - onothergrounds,suchasthat
rules and procedures had not been complied with. Further, " appointment, transfer, dismissal and disciplinarycontrol"in
section 106 (5) cannot be considered in isolation those words occur in subsections(1),(2),(3)and(4)aswell,and
similar words have been used in the corresponding Constitutional provisions in the Orders-in-Council of 1 931 and 1946.If
" dismissal " in section 106 (1) is restrictively interpreted, so as not cover every kind of termination ofservicesbyor
on behalf of the employer, serious anomalies and omissions would result. On that view, who should belegallyauthorisedto
"terminate" the services of a probationary officer ? Dr to issue a " vacation of post " notice ? Is "compulsoryretirement
" something other than " dismissal ", and if 50 who can make such an order ? if" dismissal" is given a limitedmeaning,how
could the Cabinet, under section 106 (3),makerulesregarding"termination"vacationofpost"and"compulsory
retirement"7 Of course, termination by the employee would not in any event be included and can be the subject of .inquiryby
a Court, as- held in Abeywickrama v. Pathirana (1). .
The scope of such ouster clauses has been considered inpreviousdecisionsofthisCourt.Thusthepreclusiveclause
contained in Article 81 (3) has been given a wide interpretation (3), possiblybecausethatclauseconcernedlegislative
action as well. In regard to section 106 (5). Wanasundera, J., observed.inhisdissentingjudgmentinAbeywickramav.
Pathirana (1) :

Every person acquainted with the post-independence period of our history, especiallytheconstitutionalandlegalissues
that cropped up during that period, would know how the actions of the Government and the PublicServiceCommissiondealing
with practically every aspect of their control over public officers were challenged and taken to thecourts.Astagecame
when the Government found itself practically hamstrung by injunctions and court orders and not given a free hand torunthe
public service and thereby the administration as efficiently as it would wish. The1972reformscameundoubtedlyasa
reaction to this. The thinking behind the framers of the Constitution was that the public service must be made theexclusive
domain of the Executive without interference from the courts. "

While these observations may correctly pinpoint the object of section 106, it is clear fromthemajoritydecisioninthe
same case that the scope of section 106 (5) was too widely stated. Anecessaryqualificationtotheoustereffectedby
Article 55 (5) was recognised, in terms equally applicable to section 106 (5) : an order or decisionmadebyanofficial,
having no legal authority to do so, is in law null and void, and Article 55 (5) is no bar to a court declaringittobea
nullity. (4)
The ouster clause applies only to a " recommendation, order or decision ", of certain specified persons and authorities, in
regard to " appointment, transfer, dismissal and disciplinary control ", and not to any' other matters, and certainly not to
all matters connected with the public service. In the present case, there was an order or decision by a state officer - the
Government Agent Galle - in regard to a matter concerning dismissal. Although the learned District Judge answered in the
affirmative the following issue - .
" Was the said notification dated 5.9.77 by the Government Agent Galle (a) malicious, (b) invalid, (c) unlawful?"
neither the documents produced nor the oral evidence established or suggested any such want of authorityormalafidesas
would suffice to render the termination ultra vires or otherwise a nullity.

Consistently with the legislative history of this phrase, and the long-established " pleasure principle ", andtheneedto
interpret section 1 06 self-consistently, I am of the view " dismissal"mustincludeeverymodeofseveranceofthe
employer-employee relationship, effected by or on behalf of the employer. The termination in question was not ultra viresor
a nullity, the ouster clause applied, and the DistrictCourthadnojurisdictiontoinquireinto,pronounceuponor
otherwise call in question the-dismissal of the Appellant.
Counsel for the Appellant finally submitted that the petition of appeal of the Respondent (in the DistrictCourt)hadbeen
filed out of time. It had been filed in time if the date of filing was taken to be that set out in thedate-stampappearing
on the petition of appeal, but not if, as contended for the Appellant, the date of the journalentrywasregardedasthe
date on which the petition of appeal was filed. This submission, which is in effect a preliminaryobjectiontotheappeal
being entertained by the Court of Appeal, was not made in limine in the Court of Appeal, but onlyafterjudgmenthadbeen
reserved. In any event, unless there are circumstances indicating that the date set out in the date stamp is incorrect,that
date must be assumed to be the date on which the petition of appeal was filed the party tendering the petition ot appealhas
no control over the process whereby the petition of appeal reaches the relevant record andthemakingoftheappropriate
entry therein. There is ho reason to assume that in the normal course such entry would have been made the very same day,and
the date of the journal entry thus cannot be presumed to be the date on which the petition of appeal was in fact filed.This
submission must fail.
The appeal is dismissed, but - as the Appellant's dismissal was without fault, and as an important question of law was
involved - without costs.

TAMBIAH. J., - I agree.

H. A. G. DE SILVA, J., - I agree.

Appeal dismissed.

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