033-SLLR-SLLR-1985-V2-HAJMANA-MULTI-PURPOSE-CO-OPERATIVE-SOCIETY-LTD.-v.-FERNANDO.pdf
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Sri Lanka Law Reports
[ 198512 Sri LR.
HAKMANA MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD.
v.
FERDINANDO
SUPREME COURT.
WIMALARATNE. J.. COLIN-THOME. J. AND ATUKORALE, J.
S. C. APPEAL No. 17/84.
C. A. APPLICATION No. 215/81.
JUNE 3, 1985.
Mandamus – Co-operative Society – Disciplinary action againstemployees – Co-operative Employees Commission Act section 11 (1) (e) – Clause7(1) of Circular No. 18/73 dated 27.7.1973 issued py Co-operative EmployeesCommission – Payment of half salary from seventh month to interdicted employeewhere inquiry is not completed within six months.
Mandamus does not lie to compel a Co-operative Society to comply with Clause 7(1)of Circular No. 18/73 dated 27.7.1973 issued by the Co-operative EmployeesCommission directing payment of half salary from the seventh month to an interdictedemployee where the inquiry into the charges against him is not completed in sixmonths. The duty prescribed by Clause 7 of the Circular No. 18 of 1973 is not in thenature of a public duty such as could attract relief by way of mandamus.
Mendis v. Hakmana Textile Workers' Co-operative Society – C. A. No. 378/78 C. A.Minutes of 21.1.1979 not followed.
Cases referred to:
Weligama Multi-purpose Co-operative Society Ltd. v C. Daluwatte. [1984] 1SLR. 195.
Mendis v. Hakmana Textile Workers Co-operative Society C. A. No. 378/78 C. A.Minutes of 21.1.79.
APPEAL from judgment of the Court of Appeal.
D. Wickremanayake for respondent-appellant.
Pnns Gunasekera with K. Abeypala and O. M. S. Gunasekera for petitioner-respondent.
Cur. adv. vult.
CA
Hakmana MFCS Ltd. v. Ferdmando
273
June 27,1985.
W1MALARATNE, J.
The petitioner-respondent, who was an internal auditor under therespondent-appellant, had been interdicted on 24.1.71 inconsequence of allegations of fraud and defalcations amounting toabout Rs. 70,000 against him and eight other employees. A chargesheet dated 28.6.71 was served on the petitioner, which chargesheet was amended on 7.9.73. Inquiry into the charges commencedon 30.1.75 and by 1.7.75 there had been 7 dates of inquiry but theinquiry was not concluded for various reasons.
Section 11 (1) of the Co-operative Employees Commission Act,No. 12 of 1972 stipulates the powers of the Commission, and interms of paragraph (e) of that subsection the Commission has thepower to determine the procedure or procedures to be followed byany co-operative society in exercising its rights of disciplinary actionagainst its employees, to call upon any co-operative society tocomplete disciplinary inquiries against its employees within a timestipulated by the Commission, and to hear appeals arising out of anydisciplinary orders made by any co-operative society. By virtue ofthose powers the Commission issued to all co-operative Societies aCircular No. 18/73 dated 27.7.73 on the subject of 'DisciplinaryInquiries – Interdiction'. Clause 7(1 > of the 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 salary fromthe seventh month till the inquiry is concluded During the first sixmonths the inquiry may be postponed twice on the application ofthe accused. Notwithstanding the period of time involved on thesetwo occasions, the employee is entitled to receive half salary for theperiod exceeding the six months due to the delay on the part of theemployer. But after the expiry of six months the period of timegranted on application of the employee should not be taken intoaccount for purposes of half salary".
As the inquiry was not completed even by 1977 the Commissionwrote two letters, one dated 27.3.77 (P4) and the other dated
(P5) requesting the Society to forthwith pay the half salarywhich the petitioner was entitled to. In the absence of any responsefrom the Society the petitioner invoked the jurisdiction of the Court ofAppeal by his petition dated 24.2.81 and prayed for a Writ of
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Mandamus to compel the Society to pay him half his salary from theseventh month after the date of his interdiction. The Court of Appealgranted his prayer and the appellant has appealed to this Court.
The question as to whether a Co-operative Society could becompelled by Mandamus to pay half the salary due to an employeeafter the sixth month of interdiction came up for decision before fivejudges of this Court in the case of the Weligama Multi-purposeCo-operative Society Ltd. v. C. Daluwatte (1 > It was held that the dutyprescribed by clause 7 of Circular No. 18 of 1973 is not in the natureof a public duty such as to attract the grant of Mandamus for itsenforcement. On the same basis the petitioner’s application for reliefby way of Mandamus must fail. The decision in Mendis v. HakmanaTextile Workers' Co-operative Society Ltd. (2) relied upon by the Courtof Appeal in the instant case has been held in the Weligama case(supraj to have been wrongly decided.
Mr. Gunasekera for the respondent relied upon section 14 of theCo-operative Employees Commission Act for the proposition that adirective given by the Commission to a society imposes a duty in thenature of a public duty capable of being enforced by Mandamus.Section 14 is in the following terms :
'Any co-operative society, and any employee of such society,shall be subject to such directions as may be given by theCommission under this Act, and all decisions of the Commission inthe discharge and exercise of its functions and powers under thisAct, subject to the provisions of section 11 (2), shall be final, andshall be binding on all such co-operative societies as are notexempted from the operation of this Act by Order made undersection 2 by the Minister and on the employees of such societies'.
It seems to me that a direction used by a Commission, such asthose contained in P4 and P5 are even less effective than Clause 7 ofthe Circular for attracting the remedy of Mandamus.
I would therefore allow this appeal, and dismiss the petition withoutcosts. I would urge upon the Society the imperative need to completethe disciplinary inquiry against the petitioner with the least possibledelay, if it has not already been concluded.
COLIN-THOMg, J. – I agreeATUKORALE, J. – I agree.
Appeal allowed.