022-NLR-NLR-V-50-I.-H.-WIJESINGHE-Petitioner-and-THE-MAYOR-OF-COLOMBO-et-al.-Respondents.pdf
!.B. W’jesitufhe v. The Ma jor oj Colombo.
87
1948Present : Gratiaen J.
H. WIJESINGHE, Petitioner, and THE MAYOR OECOLOMBO, et al., Respondents
S. C. 250—In' the Mattie of ah Apfltcatton foe a Whit of Manda-mus oh the Mayor ahx> the Secketaby of th e Colombo MunicipalCouncil.
"Writ of mandamus—Charity Commissioner—Appointment by Local Govern-ment Service Commission—Refusal of work by Municipal Council—Temporary suppression, of post—Private or public right—Nature ofremedy—Municipal Councils Ordinance, No. 29 of 1947, section 41 (e).
Petitioner was appointed to the post of Charity Commissioner by theLocal Government Service Commission. The Municipal Council declinedto recognize his appointment and refused to let him attend to his work.They subsequently passed a resolution that, in view of the deadlockcreated, as a temporary measure, the post of Charity Commissioner besuppressed. On application for a writ of mandamus—-
3eld, (i) that the petitioner had been properly appointed to the post.
that the functions of the office of Charity Commissioner were of apublic character and that a writ of mandamus would lie to restore himto office.
that the temporary suppression of the post did not amount to
its abolition within the meaning of section 41(e) of the Municipal
Councils Ordinance, jSTo. 29 of 1947. 1
1 (1933) A. I. R. Rangoon 138. (Full Bench).
88GBATIAHN J.—J. H. Wije&inghe v. The Mayor of Colombo.
T-C'HIS was an application for a writ of mandarmis on the Mayor andthe Secretary of the Municipal Council, Colombo.
A. Hayley, K.C., with G. E. Chitty, L. G. Weeramantry, and
G. Niles, for the petitioner.
V. Perera, K.C., with D. S. Jayawickreme, for the respondents.
Cur. adv. vult-.
September 16, 1948. Gbattabn J.—
The petitioner who was the principal of the Government TrainingCollege, Mirigama, resigned from his post in order to assume duties asCharity Commissioner of the Colombo Municipal Council on appointmentto that office by the Local Government Service Commission with effectfrom April 10, 1948. He complains that he has been and is beingprevented by the respondents, who are the Mayor and Secretary respect-ively of the Council, from performing his functions in this new office.On the first day on which he reported for work he was forbidden by theMayor to assume duties. He nevertheless attended his office regularlyuntil May 4, 1948, but throughout this period his presence was completelyignored not only by the Mayor and the Secretary but also by thesubordinate officers of his own department, acting apparently on theinstructions of the Mayor and the Secretary. On May 4 the plotthickened. He arrived to find the doors of the Charity Commissioner’soffice locked against him. Up to date he has not been paid any salary orallowances pertaining to his office.
This remarkable behaviour was not part of any strange ritualhabitually performed by city fathers in welcoming new employees of theCouncil. On the contrary, it was intended to manifest a determinedrefusal to recognize in any way the petitioner’s appointment. Whenthere seemed to be little likelihood of a change of attitude, the petitionercame to this Court and asked “ for a mandate in the nature of a writ ofmandamus to order the respondents to permit him to perform his dutiesin the exercise of his lawful, functions as Charity Commissioner of theColombo Municipal Council without let or hindrance ”—in other words,he seeks the intervention of this Court to compel the respondents to admithim to his office and to recognize him in that office.
The respondents have made no serious attempt to claim that theirconduct was justified by law. It is contended, however, on their behalfthat on various legal grounds a remedy by way of mandamus is notavailable to the petitioner.
It transpired in the course of the argument and it is quite apparentfrom the affidavits and documents filed in these proceedings that theunhappy position in which the petitioner finds himself had been broughtabout by a situation which approximated very closely to “ a state of war ”between the Colombo Municipal Council and the Local Government.Service Commission. Neither the history nor the merits of that disputehave any relevancy to the present proceedings. I am strictly concerned
GBAHAEN J.—I. H. TVijestnghe iv The M.ayor of Colombo.
S9
with only two questions ; the legality or otherwise of the respondents ’actions, and in the latter event the appropriateness of the remedy whichthe petitioner seeks. But before I proceed to consider these questions,I feel constrained to express my disapproval of the tactics employedin the course of the dispute by the Council in so far as they have victimisedthe petitioner. He was never a party to the dispute between the “ belli-gerents ” concerned. He had given up the security of a lucrative appoint-ment in the Government Service to take up an important executiveoffice in the Municipality for which post candidates were publicly invitedto apply. He has done nothing to deserve the calculated insults ofwhich he complains.
It is clear that the petitioner was duly appointed to the office ofCharity Commissioner by the Local Government Service Commission.The office was originally created by the Council in terms of section 3 ofthe Municipal Councils (Amendment) Ordinance, No. 23 of 1928, and wasat the relevant date preserved by the present Municipal CouncilsOrdinance, No. 29 of 1947. Under the earlier Ordinance the powers ofappointment and dismissal in respect of this office were vested in theCouncil itself, but have now been superseded. The Local GovernmentService Commission (to whom I shall hereafter refer as “ the Commission ”Jwas created by Ordinance No. 43 of 1945, section 11 (c) of which veststhe Commission alone with power to appoint or dismiss any member ofthe Local Government Service. The office of Charity Commissioner ofthe Colomho Municipal Council was admittedly an office in the LocalGovernment Service within the meaning of the Ordinance. The legalposition then is that the Commission alone has the power of appointmentand dismissal in respect of an office which the Council alone has thepower to create and abolish. It is not difficult to understand how, in theabsence of the closest and most cordial co-operation between the Counciland the Commission, the situation can lead to much unpleasantness andirritation.
The office of the Charity Commissioner fell vacant on the retirement ofthe Rev. C. E. V. Nathanielsz after very nearly 20 years of service.The Council thereupon requested the Commission to make an appoint-ment to fill the vacancy, and after the necessary formalities had beencomplied with, the petitioner was appointed to succeed the Rev. Natha-nielsz. I hold that the petitioner was, during the period of the acts whichhe complains of and at the date of the present application, the dulyappointed Charity Commissioner of the Colombo Municipal Council.
What then was the legal relationship between the Commission, theCouncil and the petitioner as from the date of the latter’s appointmentto his new office ? An examination of section 15 (1) of the LocalGovernment Service Ordinance supplies the answer. The petitionerentered the “ service of the Commission ” and he became at the sametime an “ employee ” of the Council. It is not necessary for the purposeof these proceedings to seek to ascertain the distinction which theLegislature intended to draw between “service” and “employment”.All that is relevant is that, so long as the Local Government ServiceOrdinance of 1945 and the Municipal Councils Ordinance of 1947 exist
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GRATIAJ5N T.—I. fl. Wijesinghe v. The Mayor of Colombo.
side by side in their present form, the Council and all who are entrustedwith the administration of its business are under a statutory obligationto recognise and implement appointments duly made by the Commission.
In wilfully refusing to admit the petitioner to his office as CharityCommissioner the Council and the respondents, who are its Mayor andSecretary, have committed a breach of this statutory obligation. Theonly serious question which arises in this case is whether a writ ofmandamus lies to compel its performance.
“A mandamus”, says Lord Hansfield in Rex. v. Barker1 “will begranted whenever a man is entitled to an office or function and there is noother adequate remedy for it”. The issue of a writ of mandamus isdiscretionary, and the Courts in England and in this country have grantedwrits admitting or restoring a man to his office only upon satisfactoryproof of a “ legal right on the part of the petitioner to the performanceby the respondent of some duty of a public and not merely privatecharacter ”.{Shortt on Mandamus, page 228). In such cases a writ is
granted “for public purposes and to compel the performance of a publicduty, but not where there is a dispute merely about private rights.”(Rex v. Bank of England, 106 English Reports 492). In accordance withthis principle this Court has issued a writ of mandamus to restore theSecretary of an Urban Council to his office (Perera v. SockalingamChettiar 2) but has refused writs in the case of Municipal doctors (Pererav. Municipal Council of Colombo3 and Suriyawansa v. Local Govern-ment Service Commission4) and of a municipal clerk (Rodrigo v.Municipal Council, Galle 6).
I have already held that the Council and the respondents were under astatutory obligation to recognise the petitioner’s appointment. This isa duty of a public character. It would be quite intolerable and verymuch against the public interest if local authorities and their seniorexecutive officers deliberately and as part of an organised campaign floutthe law merely because they did not like it in its present form.
Another aspect of the matter which occurs to me is that the LocalGovernment Service Ordinance of 1945 is a comparatively recent enact-ment creating new rights and new obligations. Where as has happenedin this case new statutory rights and obligations are wilfully ignored by apublic body and its officers, I think that on the analogy of Simpson v.Scottish Union Insurance Company6 a writ of mandamus is the mostappropriate remedy. In the words of My Lord the Chief Justice inPerera v. Sockalingam Chettiar (ibid) “the application for a writ isthe only means of testing the legality of the respondent’s actions, andif such actions are contrary to law, mandamus would seem in principlea convenient and in fact the only way of obtaining a judicial opinionto that effect.”
I do not agree that the petitioner’s right to the office of CharityCommissioner was only of a private nature which could adequately beenforced in a civil suit. The petitioner is an executive officer of theCouncil by virtue of section 176 of the Municipal Councils Ordinance of
1 96 English Reports 196.» (1946) 47 N. £. R. 265.3 (1947) 48 N L. R. 66.
(1947) 48 N. L. R. 433.6 (1947) 49 N. L. R. 89.
71 English Reports 270.
GJRATIAEN' J.—I. B. Wijesinghe v. The Mayor of Colombo.
91
1947. Under section 3 of the earlier Ordinance of 1928 and under section175 of the present Ordinance the Council was empowered to define theduties of the Charity Commissioner, and many, if not all, of the powersand functions contemplated are clearly powers and functions of a publicnature. The second respondent has, however, sworn ah affidavit to theeffect that to the best of his “ knowledge, information and belief ” theduties of the Charity Commissioner have never been defined by theCouncil. The second respondent has not indicated the extent of hisresearches into the countless resolutions passed by the Council since theoffice of Charity Commissioner was created in 1928 and occupied eversince. I can only hope that his information is incorrect and his beliefnot justified. It seems monstrous to suggest that the Rev. Nathanielszwho functioned as Charity Commissioner from December 15, 1928, tillMay 25, 1947, merely functioned in a decorative sense. I also refuse tobelieve that when the Council wrote to the Commission in June, 1947,that an appointment to the office vacated by the Rev. Nathanielsz had“ become necessary ”, the true position was that the new CharityCommissioner would really have no lawful functions or duties to dis-charge, and would be expected to occupy a meaningless office at the rate-payers’ expense. It is in evidence that the Charity Commissioner’sdepartment, which is presumably still functioning, includes a Registrarand a number of other officers. The petitioner is entitled to supervisethe work of his department. I am satisfied that the legal right which thepetitioner is seeking to enforce in these proceedings is of a public character.
It was also submitted on behalf of the respondents that a mandamusdid not lie because the petitioner was already in “ legal ” though not“ actual ” possession of his office and that he therefore did not require awrit of mandamus to assist him to obtain legal redress against those whointerfered with his rights. Mr. Perera argues that a man enjoying thecold comfort of “ legal possession ” of an office would not be granted awrit unless he had been wrongfully dispossessed after commencing tofunction in his office. It is correct that some such distinction was drawnby two of the distinguished Judges in Rex v. D. et C. Dublin1 but Ifind that Eyre J. expressly dissented from that view and said “ I thinkthat a mandamus is very proper to admit a man to the exercise of hisoffice ”. Moreover the Court was only considering this particular questionincidentally. The main matter for consideration in those proceedingswas whether a writ of error lay when a person complained that a writof mandamus had wrongfully issued from the Court. I have not beenreferred to any later case where the same distinction between “ legalpossession ” and “ actual possession ” was drawn. On the contrary,in Rex v. Barker2 Lord Mansfield stated four years later that “theCourt would assist by a writ of mandamus where there is a right to executean office or perform a service and …. where a person is eitherkept out of possession of or dispossessed of such rights ”. With respect,I do not think that this Court should be swayed by any refined distinctionswhen dealing with cases such as the present case. As Lord Mansfieldsaid in the judgment to which I have just referred “ the writ wasintroduced to prevent disorder from a failure of justice. Therefore it
x 93 English Reports 685.
1 97 English Reports 823.
92
GRATIAEN J.—I. H. Wijeainghe v. The itayor of Colombo.
ought to be used upon all occasions where the law has established no-specific remedy and where in justice and good government there oughtto be one. It has been liberally interposed for the benefit of the public andthe advancement of justice.” These words seem to me to be very appro-priate to the present case. When the petitioner came to this Court forrelief he had no other specific or adequate remedy by which he couldenforce his right to perform the functions of his office against personswho kept him out of this right without any serious pretence that theywere entitled in law to act as they did. For the reasons which I havegiven I hold that at the time this application was filed in this Court,the petitioner was entitled to a writ of mandanvus compelling therespondents to admit him to his office.
The only question which remains is whether the writ should now berefused on the ground that since these proceedings commenced the office-of Charity Commissioner has been duly abolished by the Council in theexercise of a right which is clearly vested in it under section 41 (e) of theMunicipal Councils Ordinance, No. 29 of 1947. It has been proved thaton June 9 a few days after the petitioner had filed this application theCouncil passed a resolution in the following terms :—
“ In view of the deadlock now created between this Council and the
L. G. S. C., this Council resolves that as a temporary measure the post
of Charity Commissioner be suppressed.”
Does this purported temporary “ suppression ” of the office of CharityCommissioner amount to its “ abolition ” within the meaning of section 41
? If that was the intention of the members of the Council it would havebeen a very simple matter for them to have passed a resolution to thateffect in clear and precise language. But this, for some reason which hasnot been explained to me, is just what they refrained from doing. Am Ijustified in assuming that an important executive office which, in theCouncil’s opinion had become “ necessary to fill ” in June, 1947, has nowbeen abolished although it has not been stated to have since become un-necessary ? No single member of the Council has sworn an affidavitto the effect that it was his intention to abolish the office concerned.I feel that it would not be fair to the petitioner or to the Council or to themany persons for whose benefit the office was first created, to decide that-the resolution of June 9 has had the effect of abolishing the post ofCharity Commissioner. I am not satisfied that “ suppression ” and“abolition” are necessarily synonymous terms. When something isabolished it no longer exists. There seem to be something less finalabout a “ suppression ”. A man can suppress his true name, but histrue name still exists. A witness giving evidence in a Court of Law cansuppress the truth but this only means that the truth is kept secret and isnot revealed. If the members of the Council desired and still desire toabolish the petitioner’s office, they are free to pass a resolution to thateffect in unambiguous language, although I express no opinion as to thevalidity of such a resolution which is not passed bona fide but from someextraneous motive. In the meantime the petitioner is entitled to hiswrit against the respondents. I hold that the Council’s resolution ofJune 9, 194S, has in no way defeated the petitioner’s right to function
NAGALINGAM J.—Cader v. Nicholas Appuh&'my.
93
in his office. The Conneil does not appear to be vested with any statutorypower to suppress his office. I allow the petitioner’s application withcosts. A writ of mandamus will issue from this Court requiring theMayor and the Secretary of the Colombo Municipal Council to admitMr. I. H. Wijesinghe to the office of the Charity Commissioner of theColombo Municipal Council to which office he has been duly appointedby the Local Government Service Commission. The respondents areordered and directed to permit the petitioner to perform his duties forthe exercise of his lawful functions as Charity Commissioner of theCouncil without let or hindrance.
Application allowed.