044-SLLR-SLLR-2003-V-3-ABDUL-MAJEED-v.-GUNASEKERA-SECRETARY-MINISTRY-OF-JUSTICE-AND-OTHERS.pdf
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Abdul Majeed v Gunasekera, Secretary, Ministry of Justice and
others (Shiranee Tilakawardena, J. (P/CA))
237
ABDUL MAJEEDvGUNASEKERA,SECRETARYMINISTRY OF JUSTICE AND OTHERSCOURT OF APPEAL
TILAKAWARDENA, J. (P/CA),
WIJEYARATNE, J.
C.A 836/2001
MARCH 10, 2003
JUNE 20, 2003
Writ of Mandamus – Judicial Officer on compulsory leave ~ Is he entitled to fuel
and driver's allowance? – Recommended by J.S.C. – Does writ lie.
Held:
The use of a vehicle is primarily for the performance of official duties eventhough as an appendage privilege the judicial officers are permitted to usethe vehicle on the payment of certain charges, even for personal use.
Fuel, the vehicle and driver’s allowances are not personal expenses andare not reimbursable, under circumstances, especially where the vehiclewas not in use, during the period under review for official functions.
Though the J.S.C. could make a recommendation, it is ultimately the 1strespondent who would be accountable for payments and such decisionmust in the end accord with the financial regulations.
APPLICATION for a Writ of Mandamus.
Romesh de Silva PC., with M.S.M.Suhaidfor petitioner.
Y.T.W.Wijeyatilake D.S.G., for respondents.
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Agusut 8, 2003
SHIRANEE TILAKAWARDENA, J.(P/CA)The petitioner has preferred this application seeking a Writ ofCertiorari to quash the decision of the 1st respondent contained inthe letters dated 26/02/1999 and 25/05/2001 which state that theJudicial Officers who are on compulsory leave are not entitled tothe allowances which had been referred to in P3 and P12. Theyhave also sought a Writ of Mandamus to direct the 1st respondentto pay the fuel allowance and the driver’s allowance for the periodfrom 01/04/1997 to 31/03/2000 and the vehicle allowance from01/06/1997 to 31/03/2000.
The only matter that was argued in this case was whether fuelallowance and the driver’s allowance should be paid to the peti-tioner who had been on compulsory leave with effect from 14thMarch 1997 to April 2000. It is admitted that the petitioner’s officialvehicle was withdrawn on the 24th of May 1997 and that the peti-tioner’s fuel allowance, driver’s allowance and the vehicleallowance were not paid during this period. It is also admitted thatthe petitioner’s personal allowances and housing allowances whichhad been withheld were subsequently paid from April 1997. Thepetitioner has stated that in consequent to a letter sent by theMinister of Justice to the Secretary of the Judicial SewiceCommission seeking observations and recommendations of theJudicial Service Commission in respect of non payment of fuel, dri-ver’s and vehicle allowances to the petitioner that the Secretary tothe Judicial Service Commission has replied by P11 that theJudicial Service Commission had recommended the payment ofthe fuel, driver’s and vehicle allowances to the petitioner in thiscase. The position of the petitioner was that in view of this recom-mendation that such allowances had to be treated in compliancewith the decision of the Judicial Service Commission.
It is not in dispute that the petitioner did not have the need to usehis official vehicle bearing No.19-9329 during the period that hewas on compulsory leave from 14/03/1997 to 03/04/2000. In con-sidering this payment the first distinction that has to be made is thatreimbursable expenses are not personal expenses. The use of avehicle is primarily for the performance of official duties, even
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Abdul Majeed v Gunasekera, Secretary, Ministry of Justice and
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though as an appending privilege the Judicial Officers are permit-ted to use the vehicle, on the payment of certain charges, even forpersonal use. But clearly, such use of the vehicle would be uponthe contingency that the vehicle was used concurrently by theJudicial Officer in the performance of his official duties. In this con- 40text, the primary use of the official vehicle is for the purpose of per-formance of official functions and duties. Personal travel upon thepayment of the allowance by the user of the vehicle is merely inci-dental to the official use of the vehicle.
In interpreting the distinction between personal emoluments andreimbursable expenses the Establishments Code clearly makes adistinction between these two payments and payments such astravelling expenses, transport allowances or consolidatedallowances do not come under the category of personal emolu-ments. In these circumstances, the fuel, the vehicle and driver’s 50allowances are not personal expenses and therefore are not reim-bursable under circumstances especially where the vehicle was notin use during the period under review for official functions.
A specific Circular on this matter was issued by the Ministry ofJustice Circular No.9 of 2001 dated 21.05.2001. This Circular hadbeen issued by the Secretary to the Ministry of Justice having takeninto account several of the instructions of the Ministry of PublicAdministration given through their several Circulars clarifying thatwhen an officer was deemed to be absent from duty situation whichincludes the period of compulsory leave, no payments should be 60made in respect of fuel, driver’s, official vehicles etc.
This Circular was perused and examined by this Court in termsof Article 140 of the Constitution as being part of the record and rel-evant in the decision of this case. An examination of other Circularstoo has shown that the policy of the Ministry of Justice has been notto pay fuel, driver’s and vehicle allowances to Judicial Officers whoare on compulsory leave. It is also important that this Circular hasalso taken into account the several earlier Circulars that had beenissued. The decision therefore taken not to pay the aforesaidallowances claimed by the petitioner would accord with the policy 70decision taken by the Ministry of Justice. Indeed the petitioner hassought to make reference to another Judicial Officer who had beengranted such allowances during the period that he was on compul-
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sory leave. But on this matter being drawn to the attention of theSecretary to the Ministry of Justice, (in their affidavit) they havestated that such payments are unauthorized and that early actionwould be taken to recover the same.
Though it may be argued that the Establishments Code definespublic officers in a manner that excludes Judicial Officers it hasbeen the convention and policy followed by the Ministry of Justice soand others involved in the implementation of payment and determi-nation of allowances and such payments, to be guided by theEstablishments Code, by adopting certain provisions which appearto be relevant even for allowances that have to be paid to Judges.
It also appears that in this context the Director General of theEstablishment has also stated that in terms of a Ruling that the peti-tioner was ineligible to receive the allowances. Therefore even interms of Establishments Code the payments of the allowancesclaimed by the petitioner could not be supported and he wouldtherefore be disentitled to be paid the allowances he has claimed. 90
In any event, the petitioner has not set out the grounds on whichhe is seeking to quash the letters marked P3 and P12, as in anyevent there does not appear to be any decision that has been madewhich is either ultra vires, unreasonable or where which has notbeen in accordance with the principles of natural justice.
It also has to be observed that a mere recommendation by theJudicial Service Commission does not create an obligation or man-date regarding the payment of allowances. Though recommenda-tions could be made, it is ultimately the Secretary, Ministry ofJustice who would be acountable for payments that are made and 1ooaccordingly as such decision must in the end accord with the finan-cial regulations. In any event, the Judicial Service Commissionwould not be the authority to determine or make such payments.
Therefore the application of the petitioner is dismissed withcosts in a sum of Rs.2000/-.
WIJEYARATNE, J.Application dismissed.
I agree.