027-SLLR-1984-V1-WELIGAMA-MULTI-PURPOSE-CO-OPERATIVE-SOCIETY-LTD-v.-CHANDRADASA-DALUWATTA.pdf
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Wehgama Multi-Purpose Co-operative Society Ltd. v. Daluwatta
195
WELIGAMA MULTI PURPOSE CO-OPERATIVE SOCIETY LTD.
"v.
CHANDRADASA DALUWATTA
SUPREME COURT
SAMARAKOON. C. J.r SHARVANANDA, J., WANASUNDERA, J., WIMALARATNE.J AND COUN-THOME . J.
S C.No 38/82-C.A.No. 2038/80FEBRUARY 2. 1984.
Writ of Mandamus to compel co-operative society to pay hall month's salary from7th month after interdiction pending conclusion of inquiry- Co-operative SocietiesAct. No. 5 of 1972 – Co-operative Employees Commission Act. No. 12 of1972, Sections 11. 14. 25 and 32-Clause 7 (1) of Circular No. 18/75 of 23.7.1975issued by the Secretary of the Co-operative Employees Commission.
The petitioner-respondent was employed as the Manager of the appellantCo-operative Society until his interdiction on 9.10.1972. On 30.8 1980 he wasserved with a charge sheet. He filed this application seeking a Writ of Mandamuscompelling the appellant Society to pay him half month's salary from the seventhmonth of interdiction in.terms of clause 7 (1) of Circular No. 18/75 of 23.7.1975issued by the Secretary of the Co-operative Employees Commission which statedthat an interdicted employee was entitled to such payment pending conclusion ofthe inquiry against him. The appellant Society resisted the application on theground, inter alia, that it owed no public or statutory duty to thepetitioner-respondent to pay the half month s salary from the seventh month ofinterdiction as claimed. The Court of Appeal rejected this defence and issued a Writof Mandamus compelling payment. '
Held-
The language of clause 7(1) does not permit reading into it the power to impose anobligation to pay a salary during the period of interdiction^' such a mandate cannotbe related to procedure respecting disciplinary inquiries. In any event suchdirections cannot be elevated to a regulation having statutory efficacy
Mandamus lies to secure the performance of a public duty, -in the performance ofwhich an applicant has sufficient legal interest. To be enforceable by Mandamus theduty to be performed must be of a public nature and not of a merely privatecharacter. A public duty may be imposed by statute, charter or the common law orcustom.
The duty prescribed by clause 7 of the Circular No. 18 of 1975 is not in the natureof a public duty such as to attract the grant of a Writ of Mandamus for itsenforcement.
Mendis'v. Hakmana Textile Weavers Co-operative Society Ltd. C.A.No. 378/78C.A. Minutes of 21.1.1979 was wrongly decided.
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11984) 1 SriL.R.
Cases referred to
Mendis v Hakmana Textile Weavers Co-operative Society Ltd.. C A.No.378/78 C.A Minutes of 21.1.1979.
Simpson v. Scottish Union Insurance Company. (1863) I Hemming & Miller618:71 E.R.270.
Ratnayake v. Perera. S.C. 32/81- No. 2332/80- S C. Minutes of 1.6.1982.(4| Perera v Municipal Council of Colombo. (1947) 48 N.L.R. 66.
APPEAL from a judgment of the Court of Appeal.
T. M S Nanayakkara for appellant.
Pans Gunasekera with S. K. S. Sureschandra and Miss Hewawasam forpetitioner-respondent
Cur. adv. vult.
February. 24, 1984.
SHARVANANDA, J.
The petitioner-respondent who was employed as Manager of therespondent-petitioner-society on a monthly salary of Rs. 225 wasinterdicted from service on 9.10.72. He was served with a chargesheet on 30th August, 1980, about eight years later. Thepetitioner has by his application dated 29th September, 1980,asked for the issue of a Writ of Mandamus from the Court of Appealdirecting the respondent-petitioner-society to pay his half month'ssalary commencing from the 7th month after his interdiction untilthe disciplinary inquiry against him was disposed of. Thepetitioner-respondent founds his application for relief on clause 7(1) of Circular No. 18/75 dated 23.7.1975 issued by the Secretaryof the Co-operative Employees Commission. Clause 7 (1) of thesaid Circular reads as follows :
'When the salary of an officer who is under interdiction has beenstopped and if the disciplinary inquiry is not concluded within sixmonths, the employee is entitled to receive half of his salaryfrom the seventh month till the inquiry is concluded. During thefirst six months the inquiry may be postponed twice on theapplication of the accused. Notwithstanding the period of timeinvolved on these two occasions, the employee is entitled toreceive half salary for the period exceeding the six months dueto the delay on the part of the employer. But after the expiry ofsix months the period of time granted on application of theemployee should not be taken into account for purposes of halfsalary.'
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WeUgama Mulii Purpose Co-operative Society v. Daluwatte (Sharvananda. J.)
197
The respondent-society objected to the petitioner-respondent'sapplication for the grant of a Writ of Mandamus on die ground interalia that it owed no public or statutory duty to the petitioner to paythe sum claimed by the latter; that the duty, if any. to pay the halfmonth's salary claimed by the petitioner was a duty of a privatenature and that hence the application for a Writ of Mandamuswas misconceived. The Court of Appeal disallowed the society'sobjection and following an earlier judgment of that court in Mendisv. Hakmana Textile Weavers Co-operative Society Ltd. (1) held thata Writ of Mandamus lay to compel a society such as therespondent-society to pay such half month's salary as prayed for bythe petitioner in this case. From the said judgment, the respondentsociety has preferred this appeal to this court.
The respondent-society is a society registered under theCo-ooerative Societies Law, No. 5 of 1972.
Section 14 of the Co-operative Employees Commission Act, No.12 of 1972, provides that-
Any Co-operatiye Society, and,any employee of such society, shallbe subject to such directions as may be given by the Commissionunder this Act, and all decisions of the Commission in the dischargeand excerci$e of its functions and powers under this Act, subject tcthe provisions of section 11 (2) shall be final and shall be binding on allsuch Co-operative Societies as are not exempted from the operationof this Act by Order made under section 2 by the Minister and on theemployees of such societies.
' Section 32 of the Co-operative Employees Commission Actprovides-
, 'Unless otherwise expressly provided, the Commission maymake all such regulations as may seem to the Commission to benecessary for carrying out the provisions of this Act orgiving effect to the principles thereof, including regulations for allmatters for or in respect of which regulations are authorised orrequired to be made under this Act, and all matters stated orrequired by this Act to be prescribed._
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[1984} 1 SriL. R.
No such regulation shall have effect until it has beenapproved by the Minister and notification of such approval hasbeen published in the Gazette.
Upon the publication in the Gazette of any notificationunder subsection (2) the regulation to which the notificationrelates shall be as valid and effectual as though it were hereinenacted.
Section 25 (1) authorises the making of regulations in respect ofrecruitment, appointment, termination of services of employees ofCo-operative Societies.
Section 25(2) provides that every regulation made in respect ofany matter referred to in subsection (1) shall be binding on allCo-operative Societies and their employees.
The circular No. 18 of 1973 does not purport to be a regulationand cannot have the status or attribute of a regulation, dulyapproved by the Minister and notice of which approval has beenpublished in the Gazette. Hence it cannot attract the statutory forcepostulated by section 32(3) of the Act. Its significance lies only in itsetting down guidelines for co-operative societies.
Counsel for the petitioner-respondent contended that therelevant section which endows the Co-operative EmployeesCommission with power to issue the Circular No. 18 of 1973 wassection 11(1) (e) of the Act which empowers the Commission-
'to determine the procedure or procedures to be followed byany co-operative society in exercising its rights of disciplinaryaction against its employees, to call upon any co-operativesociety to complete disciplinary inquiries against its employeeswithin a time stipulated by the Commission, and to hear appealsarising out. of any disciplinary orders made by any co-operativesociety.'
In my view the power to impose an obligation to pay any salaryduring the period of interdiction of an officer is not referable to thepowers of the Commission under this clause 11 (1) (e) of the Act.These powers relate to defining or denoting the procedure
SC ■ Weligama Mulit Purpose Co-operative Society v. Datuweite (Sbarvananda, J.)199
governing disciplinary inquiries and the. duration of such inquiriesand jurisdiction to hear appeals arising from any disciplinary order..The language of that clause does not permit reading into it thepower to impose an obligation to pay a salary during the period ofinterdiction; such a mandate cannot be related to procedurerespecting disciplinary inquiries. In any event such directionscannot be elevated to a regulation having statutory efficacy. .
Mandamus lies to secure the performance of a public duty, in theperformance of which an applicant has sufficient legal interest. Tobe enforceable by Mandamus the duty to be performed must be ofa public nature and not of merely private character. A public dutymay be imposed 'by either statute, charter or the common law orcustom.'-Short on Mandamus at page 228.
'It is settled that where an entirely new right is given by statute.Mandamus is the remedy, though it is otherwise where an oldright only is enforced'-Per Wood V.C. in Simpson v. Scottish UnionInsurance Company (2).
'Today the chief function of the Writ is to compel theperformance of a public duty prescribed by statute, though it liesas well for the enforcement of common law public duty." VideRatnayake v. Perera {3).
The Writ will not issue for private purpose, that is to say for theenforcement of a mere private duty stemming from a contract orotherwise. Contractual duties are enforceable by the ordinarycontractual'remedies such as damages, specific performance orinjunction. They are not enforceable by Mandamus which isconfined to public duties and is not granted where there are otheradequate remedies. Perera v. Municipal Council of Colombo (4).
In my view the duty prescribed by clause 7 of Circular No. 1‘8 of1973 relied on by the petitioner is not in the nature of a public dutysuch as io attract the grant of a Writ of Mandamus for itsenforcement. The instruction which the Co-operative EmployeesCommission has issued and on which the petitioner respondentbases his application, does not impose a public duty on therespondent-co-operative society to pay half month's salary to aninterdicted officer.
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Sri Lanka Law Reports
[1984} 1 Sri LR.
The Court of Appeal has overlooked the fact that the authorityrelied ony by the petitioner for the payment of salary to theinterdicted officer is only a circular and not a regulation. A circular isnot referable to the exercise of any delegated legislative power, itdoes not prescribe any duty having statutory potential. Thejudgment of that court in Mendis v. Hakmana Textile WeaversCo-operative Society Ltd. {supra) which it followed, discloses thesame error.
I set aside the judgment of the Court of Appeal and allow theappeal and dismiss the petitioner-respondent's application withcosts fixed at Rs. 750.
SAMARAKOON, C.J.-I agree.
WANASUNDERA, J.-l agree.
WIMALARATNE, J.-l agree.
COLIN-THOME', J.-l agree.
Appeal allowed.