G. M. C. PERERA and THREE OTHERS, Petitioners and R. ABEYRATNE, Respondent

014-NLR-NLR-V-79-2-G.-M.-C.-PERERA-and-THREE-OTHERS-Petitioners-and-R.-ABEYRATNE-Respondent.pdf


PereraAbeyrairte
r-J
1978Present : Wimalaratr.e, J., Wijesundera J. and
Skarvar.anc’a, J.
M. C. PERERA and THREE OTHERS.. Petitioners
and
R.ABEYRATNE, Respondent
S.C. Application 543/77
Writs of Certiorari and Mandamus—Application to quash order of refusalto pay pension to loidova—Mandamus sought to direct paymentto her in terms of Regulations-—Whether judicial or quasi-judicialorder—Failure of deceased to contribute to Pension Fund—Whether duty fell on respondent to pay pension—Local Govern-ment Service Widows' and Orphans’ Pension Fund Regulations,1952, Rules 4, 7. 10, 11, 12 and 15—Local Government Service Law,No. 16 of 1974, section 24(2)—Do the Writs lie ?
The husband of the petitioner was an employee of the ColomboMunicipal Council and held a post which was declared pensionableby the Pension Rules. The Local Government Service Widows’ andOrphans’ Pension Fund Regulations. 1952. which were kept in forceby section 24 (2) (a) of Law No. 16 of 1974, provided that such
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SHARVaNANDA, J.—Perera v. Abeyratne
persons shall become contributors to the Pension Fund from thedale on which they commenced to hold such office. Rule 12 (11required that every such person should give certain particularsregarding his name, date of birth, etc., to the Local GovernmentService Commission and thereafter the Commissioner, MunicipalCouncil was required to check these particulars and certify thatthe officer was entitled to join the Fund (Regulation 10 (1) ). Sincethe deceased husband of the petitioner had not made such notifica-tion, the Commissioner had not certified that he was entitled tojoin the Pension Fund and no contribution was deducted monthlyfrom his salary as provided for by Regulation 15.
After his death his widow, the petitioner, applied to the Director,Local Government Service Department (the respondent) to be paidher pension but the respondent refused. The petitioner thereaftermade the present application for the issue of a Writ of Certiorarito quash the said order of refusal and a Writ of Mandamus to directthe respondent to pay her pension in terms of the Regulationsabove referred to.
Held ; (1) That the order of refusal made by the respondent wasnot a judicial or quasi-jud'icial order but only an administrativeorder and no Writ of Certiorari lies.
(2) That the statutory duty falling on the respondent to paypensions to the widows of deceased employees out of the LocalGovernment Service Widows’ and Orphans’ Pension Fund did notextend to the payment of such pension to the widows of thosewho did not come within the category of contributor to the saidfund. No Writ of Mandamus can issue to compel the respondentto pay a pension which is not authorised in law.
PPLICATION for Writs of Mandamus and/or Certiorari.
Q
Prins Gunasekera, for the petitioners.
K.M. M. B. Kulatunga, Acting Solicitor-General, with S.Ratnapala, State Counsel, for the State.
Cur. adv. vult.
March 3, 1978. Sharvananba, J.
The applicant is the widow of the late Sylvester Perera, whowas a Grade I Fitter attached to the Workshop Department ofthe Colombo Municipal Council. The applicant’s husband hadcommenced in 1944 to serve the Colombo Municipality as aWelder. On 1.4.55, he was promoted to Grade II, Labour Class.On 7.7.68, he was promoted as Grade I Fitter, the holder of whichpost was declared pensionable by the Local GovernmentService Pesion Rules. He died on or about 7th July, 1975, whilein that service.
Rule 10 1 (a) of the Local Government Service Widows’ andOrphans’ Pension Fund Regulations, 1952, provides that everyperson who, having entered service after the appointed date,viz. 1.8.51, holds a pensionable office shall become a contributorto the Local Government Service Widows’ and Orphans’ Pension
SHARYANANDA, J.—Perera v. Abeyratne
101
Fund from the date on which he commenced to hold such officeand thus it became obligatory on the said Sylvester Perera tobecome a contributor to the said Fund from 7.7.63.
Rule 11 of the Regulations required the Local GovernmentService Commission tc keep and maintain registers in whichshould ’be entered the date of birth of every contributor andevery wife and child who may become entitled to a pensionunder this Rule and the particulars of all contributions paid tothe Fund by a contributor and the Commission and the pensionfor the time being payable under the Regulations in respect ofeach contributor in the event o'f his death and/or other dates andparticulars relating to the contributor and his family as maybe required for the purpose of the Regulations.
Section 12(1) of the Regulations provides as follows: —
“ Every contributor shall, within three months of the date
on which he becomes a contributor, notify to the Commission
on a form approved by it the following particulars :
The name in full.
The date of his birth.
The date from which he is liable to contribute to the
:Fund.
If he is married, the date of his marriage and the
maiden name of his wife in full and the date of her. .birth ; and
If he has any child or children, the sex, names in full
and the date of birth of such child or children.”
The late Sylvester Perera failed to notify the Commission theparticulars required by the aforesaid Regulation 12 (1). Counselfor the applicant submitted that it was part of the administrativeduty cast on the Municipal Council to have got the necessarydeclaration from the deceased employee and that the Councilhad failed in its duty to call upon the deceased to make thedeclaration. The language of Regulation 12 (1) however casts theresponsibility for making the required notification on thecontributor within three months of his becoming a contributor,whether called upon by the Council or not.
The form referred to in Regulation 12(1) provides for theCommissioner, Municipal Council, to certify to the Accountant,Local Government Service Comission. “ that the date of birthof the officer has been checked with his certificate of birth/
I A 4-ICSO (79/09)
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SHARVANANDA, J.—Perera v. Abeyratne
affidavit and found to be correct. The officer is entitled to jointhe Local Government Service Widows’ and Orphans’ Pension
Fund under Regulation 10(1) (a) with effect from-” To
enable the Commissioner, Municipal Council, to issue the afore-said certificate, the officer concerned should have supplied thenecessary particulars. It was only after the Commissioner hadchecked and found correct the date of birth of the officer thathe could certify that the officer was entitled to join the LocalGovernment Service Widows’ and Orphans’ Pension Fund underRegulation 10(1). Since the deceased employee had failed tomake the necessary notification in terms of Regulation 12(1),the Commissioner, Municipal Council, did not certify to theAccountant, Local Government Service Commission, that thedeceased was entitled to join the Local Government ServiceWidows’ and Orphans’ Pension Fund, and hence the contributionpayable under Regulation 15 was not deducted monthly fromthe salary of the contributor ; and the unfortunate consequencewas that the deceased employee failed to make any contribution,as required by the Regulation, to the Local Government ServiceWidows’ and Orphans’ Pension Fund during his life time. Thus,the deceased, though he was entitled to be a contributor tothe Local Government Service Widows’ and Orphans’ PensionFund, did not, in fact, exercise the privilege of becoming acontributor to the Fund, as he did not make any contributionto the Fund.
Regulation 4 provides that all contributions made under theRegulation by the contributors and by the Commission and allinterests and investments shall be paid into the Fund ; andRegulation 7 states : “ All pensions, repayments of contribution,
etcshall be paid out of the Fund Regulation 28 specifies
who the beneficiaries of a contributor are ; and Regulation 29states: “ On the death of a contributor, the beneficiary of thecontributor shall receive a pension in accordance with the provi-sions of the Regulation ”. The widow of a contributor is, in termsof the Regulations, a beneficiary who is entitled to receive apension in in accordance with the Pensions Scheme provided inthe Regulations.
On the death of the afpresaid deceased employee SylvesterPerera, the applicant, who is his widow, applied to the respon-dent, the Director, Local Government Service Department, tobe paid her pension from the Local Government Service Widows’and Orphans’ Pension Fund as widow of the deceased employeeSylvester Perera. Since the respondent refused to accede to theapplicant’s request, the applicant has fil*'1. this application for
SHARv'ANAIsDA, J.—Perera v. Abeyratne
103
the issue of a Writ of Certiorari and/or Mandamus quashing■the order or refusal made by the respondent and to direct himto pay her pension in terms of the Local Government ServiceWidows’ and Orphans’ Pension Fund Regulations.
Since the order of refusal made by the respondent, which,is sought to be quashed by a Writ of Certiorari, is not a judicialor a quasi-judicial order but is only an administrative order,no Writ of Certiorari lies, in law, to quash such administrativeorders.
The Local Government Service Widows’ and Orphans’ PensionFund for the payment of pensions to the widows and childrenof the pensionable members of the Local Government Servicewhich was established in terms of the Local Government ServiceWidows’ and Orphans’ Pension Fund Regulations, 1952 (vide Vol.V, Subsidiary Enactments at page 468) is now administered bythe respondent, the Director, Local Government Service Depart-ment (sections 15, 17 and 18 of the Local Government Service LawNo. 16 of 1974), and notwithstanding the repeal of the LocalGovernment Service Ordinance (Chap. 264) and the. LocalGovernment Service Act, No. 18 of 1969, the aforesaid Regula-tions of 1952 have been kept alive in terms of section 24(2) (a)of the Law No. 16 of 1974 and the said Regulations continue togovern the administration of the Pensions Scheme providedby the said Regulations.
Under the aforesaid Pensions Scheme, the quantum of pensionpayable to the beneficiary of a contributor is computed on thebasis of the contribution made by the deceased. To becomeentitled to the benefits of the Scheme by a widow, it is funda-mental that the deceased should, in fact, have been a contributorto the Fund, in the sense that he, in fact, made contributionsto the Fund. In this case, it is admitted that the applicant’shusband had overlooked making and never made any contri-butions. He drew his full salary without any deduction, madeon account of contributions to the Local Government ServiceWidows’ and Orphans’ Pension Fund, from his monthly salary..Since the deceased has thus failed to be a contributor, theapplicant cannot claim the status and benefits of being the widowof a contributor. The statutory duty falling on the respondentto pay pensions to the widows of the deceased employees cutof the Local Government Service Widows’ and Orphans’ Pension.Fund does not extend to the payment of such pension to thewidows of deceased employees who, for whatever reason, didnot come within the category of contributor to the said Fund
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Seevaratnam v. Asst. Commissioner of Cooperative Development
£nd hence no Writ of Mandamus can issue from this Court to-compel the respondent to pay a pension which is not authorised,in law.
The application, therefore, fails and is dismissed, in thecircumstances, without costs.
Wimalaratne, J.—I agree.
Wijesundera, J.—I agree.
Application dismissed.