109-NLR-NLR-V-66-A.-P.-K.-PATHIRANA-Petitioner-and-A.-S.-GOONESEKERA-Chairman-Village-Commit.pdf
464
Path’rana v, Goonesekera
1962Present: Weerasooriya, S.P.J.
A. P. K. PATHIRANA, Petitioner, and A. S. GOONESEKERA(Chairman, Village Committee, Otara Palata) et alRespondents
S. G. 176—Application for a Writ of Mandamus on tie Claiiman,
V. G., Otara Palata
Local Government Service—Member thereof employed under a local authority—Inter-diction by the Local Government Service Commission—Liability of the localauthority to pay emoluments during the period of in ter diction—Right of inter-dicted person to apply for a writ of mandamus—Local Government ServiceOrdinance {Cap. 264), ss. 1 i (V) (c), 14 (i), J5, 23 (/), 27, 67 (7)—Local Govern-ment Service Regulations, 1947, Regulation 51—Scope of Mandamus.
Where a member of the Local Government Service who has been appointedto a post in the service of a local authority is interdicted by the LocalGovernment Service Commission while in the service of that local authority,paragraph (iv) of Regulation 51 of the Local Government Service Regulationsof 1947, road with section 23 (l) of the Local Govomrnent Service Ordinance,renders the local authority liable to pay out of its funds one hall’ (at least) of hisemoluments during his interdiction. In such a case, tne duties imposod onthe local authority, which is a public body, are of a public character and,therefore, liable to be enforced by Mandamus, although the interdicted personcould have filed a regular action for the recovery of the emoluments.
The Court would not, in the exercise of its discretion, refuse a writ ofMandamus on the sole ground that another remedy is op.m to thi applicant,unless such remedy is shown to bo equally effectual as well as convenient.
Where officials having a public duty to perform, refuse to perform it,Mandamus will lie, on the application of a person interested, to compel themto dc so. The rule would also apply where a public body fails to perform apublic duty with which it is charged.
WEERASOORIYA, S. P. J.—Pathirana v. Ooonesekera
465
Application for a writ of Mandamus on the Chairman of aVillage Committee, and on the Village Committee.
M. S. M. Nazeem, with M. T. M. Sivardeen, for the petitioner.
H. A. Koattegoda, with M. L. de Silva, for the 1st respondent.
M. L. de Silva, with K. JD. U. Jayasekera, for the 2nd respondent.
G. J. Mervyn Fernando, Crown Counsel, for the Attorney-General.
Gur. adv. vult.
December 21, 1962. Weerasooriya, S.P.J.—
Tae petitioner is a member of the Loeal Government Service consti-tuted under section 15 of the Local Government Service Ordinance(Cap. 264), and at the times materia] to this application he was the Secre-tary of the Village Committee, Otara Palata, the 2nd respondent, towhich post he had been appointed by the Local Government ServiceCommission. Prior to this appointment he was the Secretary of theDeniyaya Village Committee. While serving in that post certain alle-gations against him of misappropriation of funds, and falsification ofaccounts, of the Deniyuya Village Committee came to be investigated,and pending the investigation the Local Government Service Commissiontransferred him as Secretary of the 2nd respondent. Subsequently,as a result of the petitioner being charged in the Magistrate’s Court ofMatara with the offences of misappropriation and falsification ofaccounts, the Commission made an order interdicting him, and directedthe 1st respondent, as Caairman, to give effect to this order, which hedid as from the 30th April, 1960, but under protest.
The Commission also informed the 1st respondent that during the periodof interdiction the petitioner should be paid one-half his emoluments.Both the 1st and 2nd respondents, however, disclaim liability to payone-half the emoluments of the petitioner, or any sum at all, fiom thedate of the interdiction, and have accordingly not paid him any partof his emoluments since that date. Hence this application.
Section 23(1) of the Local Government Service Ordinance
(hereafter referred to as “ the Ordinance ”) is as follows:—
“ Every local authority shall cause and permit each member of theservice who is appointed by the Commission to any post in the serviceof that authority to perform and discharge the functions and dutiesof that po3t, a id shall, out of its funds, pay the salary and allowancesof each such member.”
Tt is com non ground that, since at the time of the petitioner’s inter-diction he was holding the post of Secretary of the 2nd respondent,up to that time, at least, the latter was liable to pay out of its funds the
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WEERASOORIYA, S. P. J.—Pathirana v. Oooneselcera
salary and allowances of the petitioner. But counsel for the 2nd res-pondent contended that such liability exists only so long as the officerconcerned is able to perform and discharge the functions and duties ofhis po3t, and that as the order of interdiction necessarily meant that thepetitioner was debared from functioning in his post for the duration ofthe interdiction, the liability of the 2nd respondent to pay the petitioner’ssalary and allowances ceased forthwith from the date of the order.
Section 23 (1), it will be noted, does not specifically provide for a casewhere a member of the Local Government Service who has been appointedto a post in the service of a local authority is interdicted while in the serviceof that lo:al authority. Tne power of the Local Government ServiceCommission to interdict a member of the Service is derived from section11 (1) (c) of the Ordinance. Section 27, read with section 67 (1), empowersthe Commission to make regulations, inter alia, for the dismissal, inter-diction or punishment of members of the Service. The only regulationrelating to interdiction which counsel for the petitioner referred me tcis Regulation 51 of the Local Government Service Regulations, 1947,published in the Ceylon Government Gazette No. 9,729 of the 4th July,1947. This regulation consists of five paragraphs. Paragraphs (i)to (iii) deal with interdictions by the Mayor of a Municipal Council,or Chairman of an Urban Council or other local authority. Paragraph
deals with the emoluments payable to a member of the Service whohas been interdicted, and the material part of it reads—“ A memberwho has been interdicted shall receive from the date of interdiction onehalf of his emoluments unless the Commission orders that a greater portionof his emoluments than one half shall be paid. ” Although paragraph (iv)does not state who is liable to pay the prescribed portion of an interdictedofficer’s emoluments, one must look to section 23 (1) to determine thatquestion. Where a member of the Local Government Service is appointedto a post in the service of a local authority the obligation to pay hissalary and allowances is cast by section 23 (1) on that local authority.It is clear that such obligation continues as long as the appointment isin force. I do not think that the interdiction had the effect of termi-nating the petitioner’s appointment. The argument of learned counselfor the 2nd respondent that the payment of the petitioner’s emolumentswhile he is under interdiction is the liability of the Commission and notof the 2nd respondent does not appear to be tenable in view of section14 (1) of the Ordinance which in effect provides that no part of any fundsmade available to tho Commission by Parliament shall be utilised towardspayment, inter alia, of salaries and allowances of members of the LocalGovernment Service as distinct from the officers and servants ofthe Commission.
Mr. Koattegoda for the 1st respondent was prepared to concede thatif paragraph (iv) of Regulation 51 applies to interdictions by the LocalGovernment Service Commission the 2nd respondent would be liable topay one half of the petitioner’s emoluments while he is under interdiction.But he contended that since paragraph (iv) does not refer to interdictions
WEERASOORIYA, S. P. J.—PcUhirana v. Qoonesekera
467
by the Commission, and comirg as it does immediately after paragraphs(i) to (iii) which deal with interdictions by the Mayor of a MunicipalCouncil or Chairman of an Urban Council or other local authority, theprovisior s of paragraph (iv) should be construed as applicable only tothe cases in paragraph (i) to (iii). I am unable to agree with thiscontention. Regulation 51 occurs at the end of a group of regulations(Regulations 41-50) dealirg with the procedure to be followed wherediscipline ly action is taken by the Commission or by a local authorityagainst a member of the Service. Regulation 51 deals with interdiction,which is generally a step incidental to dis( ip linary action. In my opinion,Regulation 51 is applicable to all orders of interdiction which may lawfullybe made urder the Ordinance, subject to express words of limitation.Paragraph (iv), which is not expressly limited to interdictions underparagraphs (i) to (iii), is, therefore to be construed as applicable tointerdictio: s by the Commission as woll. In my opinion, paragraph (iv)of Regulation 51, read with section 23 (1), renders the 2nd respondentliable to pay out of its funds one half of the emoluments of the petitionerduring his interdiction.
The only other question is whether mandamus lies to compel the res-pondents to make the payment. It was submitted for the respondentsthat whatever statutoiy duty, if any, owed by them to the petitionerif. of a pure ly private character and, therefore, r o mandamuslies to compelthe perfoimar.ee of such a duty. The case of Perera v. Municipal Councilof Colombo 1 relied on for this submission is clearly distinguishable fromthe present case. In my opinion the dutios imposed on a local authority,which is a public body, under section 23 (1) of the Ordinance and Regula-tion 51 (iv) of the Local Goverrment Service Regulations, 1947, are ofa public character. Another objection taken for the respondents againstthe issue of the writ was that the petitioner could have filed a regularaction for the recovery of the emoluments claimed by him. But theCourt would not, in the exercise of its discretion, refuse a writ on the soleground that another remedy is open to an applicant unless such remedyis shown to be equally effectual as well as convenient—Local GovernmentService Commission v. Urban Council, Panadura a. I am not preparedto say that the remedy which was open to the petitioner by way of aregular action can be so regarded. Moreover, the present case appearsto fall within the rule stated by Lord Esher, M.P., in The Queen v. Com-missioners for Special Purposes of the Income Tax3 that where officialshaving a public duty to perform, refuse to perform it, mandamus willlie on the application of a person interested to compel them to do so.The rule would also apply where a public body fails to perform a publicduty with which it is charged.
At the hearing of this matter I was informed by counsel that the inter-diction of the petitioner was withdrawn by the Local GovernmentService Commission on the 4th April, 1961, and he was subsequently
1 (1947) 48 N. L. R. 66.
8 (1888) 21 Q. B. D. 313.
* (1952) 55 N. L. R. 429.
468
Peter v. Gotelingam
transferred as the Secretary of the Vi 11?.go Committee, Puttalam Pattu,with effoct from the 1st June, 1961. The ordor nisi issued on the respon-dents is made absolute with costs fixed at Rs. 210 p?.y?.ble by the2nd respondent. The poriod in rospect of which the petitioner is entitledto half his emoluments will be from the 30th April, 1960, to the 3rd April,1961. This ordor will, of course, be without prejudice to ary lawfulclaim Which the petitioner may have to be paid the other half of hisemoluments in respect of the same poriod.
I wish to place on record my thanks to Crown Counsel who appearedas amicus curiae for the assistance rendered by him in this case.
Order made absolute.