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SANTIAPILLAI M. v. ATTORNEY GENERAL
NLR55V83
1953 Present: Gratiaen
J. and Gunasekara J.
M. SANTIA PILLAI, Appellant, and THE ATTORNEY-GENERAL,
Respondent
S. C. 258-D. C. Colombo, 19055/M
Public servant-Liability to
dismissal at pleasure of Crown-Ceylon (State Council) Order in Council, 1931,
Art. 86-Effect of Royal Instructions.
By Article 86 of the Ceylon (State Council) Order in Council, 1931, " (1) The
appointment, promotion, transfer, dismissal, and disciplinary control of public
officers shall be vested in the Governor, subject to any Instructions given
under His Majesty's Sign Manual and Signet and, in so far as concerns the
Auditor-General, to the provisions of Article 83.
(2) The Governor may, subject to such Instructions and provisions as aforesaid,
and with the approval of the Secretary of State, delegate to such public
officers having authority in or over Government departments as he shall think
fit, subject to such conditions as he may prescribe, the appointment, promotion,
transfer, dismissal and disciplinary control of officers who are not in receipt
of annual pensionable emoluments exceeding such sum as may be specified in such
Instructions. "
Held, that there is nothing in Article 86 that is inconsistent with the
condition that is ordinarily implied in the terms of employment of a public
servant other than the Auditor-General, that he holds office only during the
pleasure of the Crown. Consequently a public servant who is aggrieved by any
failure to comply with the procedure for dismissal prescribed by the Royal
Instructions must seek his remedy by administrative process and has no remedy by
action in a court of law.
APPEAL
from a judgment of the District Court, Colombo.
S. J. V. Chelvanayakam, Q .C., with V. A. Kandiah and A. Nagendra, for the
plaintiff appellant.
B. C. F. Jayaratne, Crown Counsel, for the Attorney-General, respondent.
Cur. adv. vult.
June 5, 1953. GUNASEKARA
J.-
This is an appeal from a judgment of the District Court of Colombo dismissing an
action brought by the appellant, Mr. Santia Pillai, against the Attorney-General
for the recovery of a sum of Rs. 11,458.24 which he claims as arrears of salary
and allowances due to him as a servant of the Government. He was appointed to
the Government Railway Clerical Service in 1920. On the 23rd February, 1945, the
Governor ordered that he should be retired for inefficiency. This order was
officially communicated to him on the 4th March, 1945, and he ceased to work as
a public servant from the following day. It is contended for him that the order
was not made in accordance with the procedure prescribed by law and is therefore
void and inoperative, and that he is entitled to a declaration that he continues
to be a member of the Public Service or should be treated as continuing to be
one.
The procedure that is said to
have been contravened is laid down in certain Royal Instructions to the Governor
in these terms :-
" the grounds of intended dismissal shall be definitely stated in writing and
communicated to the officer in order that he may have full opportunity of
exculpating himself, and the Governor shall investigate the case with the aid of
the head of the department in which the officer shall then be serving."
The circumstances in which the order in question was made were. these. As a
result of an audit report there was a departmental investigation of alleged
irregularities in the work of the Jaffna railway station staff. In December,
1943, the Governor appointed a retired member of the Ceylon Civil Service, Mr.
T. W. Roberts, " to act temporarily as Investigating Officer, Jaffna Railway
Station Inquiry, to complete the inquiries in connection with the irregularities
discovered at the Jaffna railway station and to hold a face to face inquiry and
furnish a report ". Mr. Roberts had had considerable experience as a magistrate
and district judge and had been the District Judge of Galle at the
