SWAN J.—Local Govt. Service Commission v. Urban Council, Panadura
1952Present: Swan J.
LOCAL GOVERNMENT SERVICE COMMISSION, Petitioner,and URBAN COUNCIL, PANADURA et al., Respondents
S. C. 487—Application for a Writ of Mandamus
Mandamus—Alternative remedy available—Circumstances when writ would neverthelesslie— Local Government Service Ordinance, No. 43 of 1945, s. 51 (a)—Pensionpayable thereunder—Remedy for collecting it from local authority.
Mandamus would lie where an alternative remedy by way of ordinary actionwould not be convenient or effective.
A writ of Mandamus is available to the Local Government Service Commissionin order to compel a local authority to pay money due to it under section 51 (a)of the Local Government Service Ordinance in respect of a pension granted to aretired member of the Local Government Service. The obligation imposed onthe local authority in such a case is in the nature of a public duty and can be en-forced by way of Mandamus because an ordinary action would not be a convenientor effective remedy.
PPLICATION for a writ of Mandamus.
H. V. Perera, Q.C., with E. R. S. R. Goomaraswamy, for the petitioner.
B. Wikramanayake, Q.C., with Sam. P. C. Fernando, for the 1strespondent.
Sam. P. C. Fernando, for the 2nd respondent.
Cur. adv. vult.
November 21, 1952. Swan J.—
This is an application for a writ of Mandamus on the Urban Council,Panadura, and its Chairman to command them to pay to the petitioner allsums of money that have fallen due and all sums that will in the futurefall due m respect of the pension granted to one B. P. Ranasinghe.
The petitioner’s case is that under the provisions of the Local GovernmentService Ordinance, No. 43 of 1945, as amended by Ordinances Nos. 56 of1946 and 37 of 1947 and Act No. 8 of 1949, all employees of Local Authori-ties including Urban Councils who hold scheduled posts are members ofthe Local Government Service and, as such, in the service of the petitioner;and that the power to grant pensions to such employees upon retirementis vested in the petitioner. Under section 51 of the main Ordinance asamended by section 19 of Act No. 8 of 1949 all pensions granted by thepetitioner to retired members of the Service are payable by the LocalAuthority concerned to the petitioner out of its funds before the 10th dayof each month. Under section 51 (a) the pension granted to a retiredmember is payable byjthe petitioner to such member. B. P. Ranasinghe
430SWAN J.—Local Govt. Service Commission v. Urban Council, Panadura
aforementioned who was Superintendent of Works of the Urban Council,Panadura, and who was a member of the Service of the petitioner retiredunder the provisions of section 46 of the Local Government ServiceOrdinance with effect from 15th March, 1950. On 14.12.1950 the peti-tioner duly approved the payment of a pension of Rs. 142-92 per mensemto the said B. P. Ranasinghe. The respondents were duly informed ofthis decision and requested to remit all sums due in respect of this pensionso that the petitioner could carry out its statutory obligation undersection 50 (1) of the Ordinance. For several months the respondentsfailed to compy with the petitioner’s requests. On 14.7.1950 the re-spondents remitted to the petitioner only a sum of Rs. 3,029-74 out of asum of Rs. 3,938-92 payable up to that date, and recommended that areduced pension of Rs. 95 ■ 28 per mensem be granted to the aforementioned
P. Ranasinghe. This recommendation was considered but rejected bythe members of the Commission and on 30.7.1951 the petitioner returnedthe cheque for Rs. 3029/74 to the respondents informing them that therecommendation to reduce the pension was rejected and requesting themto remit the full amount of Rs. 3,938-92. The respondents, however,failed, and neglected to do so.
This application was made on 22.9.1951. On 2ii.S). 1951 the 1st re-spondent remitted to the petitioner the full amount, namely, Rs. 3,938 • 92.That fact is referred to in the statement of objections of the 1st respondentfiled on 7.11.1951 and complaint is made that the petitioner’s Proctors de-manded a large sum by way of costs which sum was described as exorbitantand unreasonable. In this state of things one would have expected anadjustment of the matter but the 1st respondent’s Counsel at the inquirydid not concede the right of the petitioner to apply by way of mandamusfor the performance of the 1st respondent’s obligation. In fact, in the1st respondent’s objections it is stated that the petitioner’s remedy is byaction and that mandamus does not lie. The 2nd respondent filed anaffidavit in support of the objections of the 1st respondent.
At the inquiry, Mr. Sam. P. C. Fernando appearing for the 2ndrespond-ent submitted an affidavit to the effect that the 2nd respondent hadresigned from the office of Chairman on 1st October, 1^52. I suggestedthat he should be dismissed from the case without costs but as his Counselinsisted on an order for costs, the matter could not be settled even as faras the 2nd respondent was concerned.
The question I have to decide is1 whether the petitioner can ask for awrit of mandamus. Counsel for both respondents make common causein resisting the application. They concede that the petitioner has theright to demand, and the 1st respondent the liability to pay the pension inquestion. It is, however, contended that mandamus does not lie for thefollowing reasons :—
(а)it will not be granted except to compel the performance of a public
duty. The Ordinance only creates a liability on the part of the1st respondent to pay the pension ; it does not impose on the 1strespondent an obligation in the nature of a public duty butonly a civil liability.
(б)there is an alternative remedy, namely, recovery by ordinary action.
Hutchinson v. Wijesinghe
As regards (a) I would hold that the obligation imposed on the 1strespondent is in the nature of a public duty. As regards (b) undoubtedlythe petitioner can sue for the recovery of each month’s pension as it fallsdue ; but that would not be a convenient or effective remedy. Theinconvenience is self-evident. The ineffectiveness will be readily under-stood when one considers the steps that have to be taken in executionunder a decree obtained in a civil action. Allen on Law and Orders atpage 61 puts the matter thus :—
„ “ When any public authority or official is under an absolute (not adiscretionary) duty to perform a certain function and refuses to do so,any person who has a demonstrable interest in its performance maymove the High Court for a mandamus to compel the fulfilment of theduty, and the Court, if satisfied by the application, will make an orderaccordingly, provided that there is no other remedy equally convenient,beneficial and effectual open to the applicant. ”
The application of the petitioner against the 1st respondent is allowedwith costs. A writ of mandamus will issue against the 1st respondentas prayed for in the petition. As the 2nd respondent is no longer theChairman he is discharged from these proceedings, but I make no order inhis favour as to costs.
LOCAL GOVERNMENT SERVICE COMMISSION, Petitioner, and URBAN COUNCIL, PANADURA
SWAN J.—Local Govt. Service Commission v. Urban Council, Panadura