081-NLR-NLR-V-64-J.-C.-W.-MUNASINGHE-Petitioner-and-THE-AUDITOR-GENERAL-and-another-Responde.pdf
474
Munasinghe v. The Audi tor-General
1961Present : Tambiah, J.
J.C. W. MUNASINGHE, Petitioner, and THE AUDITOit-GENERAL and another, Respondents
3. G. 31—Application for a Writ of Certiorari and/or a Writ ofProhibition under Section 42 of the Courts Ordinance
Certiorari—Executive officer entrusted with quasi-judicial functions—Procedure tobe followed by him when it is not specified by statute—Natural justice—Audialteram partem rule—Town Council Chairman—Surcharge by Auditor -General—Appeal therefrom—Procedure—Town Councils Ordinance, No. 3of 1946, ss. 195 {1), 196 (1) (2) (3).'•_
By section. 196 (3) of the Town Councils Ordinance (as amended by GazetteNo. 9,773 of 24th September 1947) :—‘
“ . . . any person aggrieved may … appeal to the Minister, and it shallbo lawful for the Minister, upon such appeal, to decide the question atissue according to the merits of the case, and if the Minister finds that anydisallowance or surcharge has been lawfully made, but that the subjectmatter thoreof was incurred under such circumstances as to make it fairand equitable that the disallowance or surcharge should- be remitted, the
Minister may direct that such disallowance or surcharge shall be' remitted»»
Held, that, when a person who has been surcharged by the Auditor-Generalunder the provisions of section 195 (1) of the Town Councils Ordinance appealsto the Minister under section 196 (3), the Minister has a duty to act judiciallyand to observo the rules of natural justice, particularly the rule audi alterampartem. Accordingly, if the Minister does not give the appellant an opportunityto be heard, writ of certiorari will lie.
Application for a Writ of Certiorari and/or a Writ of Prohibitionagainst the Auditor-General and the Minister of Local Government andHousing.
A. C. Nadarajah, with C. V. Munasinghe and Miss SuriyaWickramasinghe, for the petitioner.
Mervyn Fernando, Crown Counsel, for the respondents.
Cur. adv. vult.
TAMTilAH, J.—Munasinghe. v. The Auditor-General
475
May 15, 1961. Tambiah, J.—
Tliis is an application for a writ of certiorari to quash the order of theAuditor-General, surcharging the petitioner sums of money amounting toRs. 2S.9G2/48 cts. and the order of the Minister of Local Governmentand Housing confirming the said sum.
The petitioner, in his affidavit, set out the facts of the case.The petitioner was the Chairman of the Madampe Town Councilfrom 1947 to the end of 1958, except for a few months in 1953. In1950, the late Mr. S. W. R. D. Bandaranaikc, the then Minister of Healthand Local Government, requested the Madampe Town Council to start aHousing Scheme and agreed to reimburse 75% of the expenditure outof the Slum Clearance Vote for*l950-1951.
In pursuance of this agreement, a sum of Rs. 87,862 was given asGovernment grant for the scheme and the Town Council was requestedto get the balance as a loan from the Local Loans and DevelopmentsFund. Although the original scheme was to have the Housing Schemeon the land owned by the Council, another site was purchased for thispurpose for Rs. 18,000, on the advice of the Town Planner, with theapproval of the Commissioner of Local Government.
Tenders were called for by the Council and the contract was given tothe Globe Agency Ltd., Colombo, to complete this scheme at a cost ofRs. 138,914/23 cts. By a resolution dated 30.4.51, the Council vestedthe petitioner with the necessary authority and powers for the successfulconstruction work of the scheme. The Commissioner of. LocalGovernment offered to pay Rs. 70,000 and made an initial payment ofRs. 10,000, undertaking to pay the balance during the following year.According to the petitioner, however, as the sums promised w'ere paid insmall instalments, and as there was delay in the payment of such instal-ments, he was compelled on some occasions to authorise the advances formaterials supplied and the work already done, in terms of Rule 97, framedunder Section 206 of the Town Councils Ordinance No. 3 of 194G. Themonies so advanced were paid out of the funds of the Council as atemporary measure till the Government made good its promise.’
The Auditor-General, the 1st respondent, by his letter dated 8.12.58,marked A, called upon the petitioner to show cause why he should not besurcharged the sum of Rs. 28,962/48 cts., given by way of advancesin connection with the Housing Scheme. The reason given by theAuditor-General, in his letter marked A, was that there was- no provisionin the Town Councils Ordinance No. 3 of 1946, under which the advancescould have been properly made. It was not suggested that there had beenany misappropriation of the funds. The petitioner, in his affidavit,has stated that the Council had not suffered any less and that the 1strespondent has surcharged the said sum as the petitioner had failedto give the necessary explanation within the required time.
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TAMBIAH, J.—:Munasinghe v. The Auditor-General
The petitioner filed an appeal to the Minister of Local Government andHousing in 1959, and the' Permanent Secretary to the Minister of LocalGovernment and Housing sent a letter dated 10.12.60, marked D, statingthat the Minister, the 2nd respondent, had disallowed the petitioner’sappeal and has upheld the surcharge of the sum of Rs. 28,962/48 cte.made by the Auditor-General.
The petitioner’s averments, in his affidavit, that the 2nd respondenthas made this order without any inquiry at which he could have supportedhis appeal, is not traversed by the second respondent. The first inti-mation the petitioner had about his appeal was the letter, marked Dl,refusing his prayer. It was urged on behalf of the petitioner that thesecond respondent did not give any notice to the petitioner in respect,of the petitioner’s appeal.
The Crown Counsel, who appeared for the respondent, did not contestthe facts set out in the petition and affidavit. However, he contendedthat the writ of certiorari did not lie in the present case as there was noprocedure envisaged by section 196 (3) of the Town Councils Ordinance,No. 3 of 1946, requiring the Minister to notify the petitioner the date onwhich he would hear the appeal or even prescribing the manner in whichsuch appeal should be heard. The counsel for the respondent alsosubmitted that section 196 (3) of the Town Councils Ordinance vests theMinister with an absolute discretion to deal with such matters andhence no Certiorari would lie in the present case.
Section 195 (1) of the Town Councils Ordinance empowers the Auditor-General to surcharge any person who makes or authorises an illegalpayment of money of the Town Council. Section 196 (1) of the Act•gives any person aggrieved by such surcharge the right to appeal againstsuch a decision to the Supreme Court on a point of law and the SupremeCourt is given the power to. confirm or disallow such surcharge. UnderSection 196 (2) of the Ordinance, every appeal to the Supreme Court hasto be presented in the same manner as an appeal from ah interlocutoryorder of a’ District Court.
Section 196 (3) of the Town Councils Ordinance (as amended by GazetteNo. 9,773 of 24th September 1947) reads as follows :—
“ In lieu of an appeal under sub-section (1) any person aggrievedmay, within thirty days of the date of the decision of the auditor duly .communicated to him, appeal to the Minister, and it shall be lawfulfor the Minister, upon such appeal, to decide the question at issue'according to the merits of the case, and if the Minister finds that anydisallowance or surcharge has been lawfully made, but that the subjectmatter thereof was incurred under such circumstances as to make itfair and equitable that the disallowance or surcharge should be remitted;the Minister may direct that such disallowance or surcharge shall beremitted on payment of the costs, if any, which may have been incurredby the auditor in the enforcing of such disallowance or surcharge.Any amount directed to be recovered from any such person under any
TAMBIAH, J.—Munaninghc v. The Auditor-General477
order made by the Minister may forthwith be recovered by the Com-missioner or any person authorised in writing in that behalf by theCommissioner in the same manner as any sum certified to be due byan auditor is recoverable under the provisions of this section. ”
It is not denied by the Crown Counsel that the Auditor-General, actingunder section 195 of the Town Councils Ordinance, has a duty to actjudicially. Section 196 (3) gives a right of appeal from the decision of theAuditor-General to the Minister and the Minister, upon such appeal, isempowered to decide the question at issue according to the merits of thecase. This provision empowers the Minister to decide both questions oflaw and fact and there can be no doubt that when the Minister hears suchan appeal, he has a duty to act judicially and to observe rules of naturaljustice and, in particular, the audi alteram partem rule.
Section 196 (3) of the Ordinance further empowers the Minister toexercise his discretion and to remit any surcharge or to disallow it if theMinister finds that the subject-matter thereof was incurred under suchcircumstances as to make it “ fair and equitable ” that the disallowance orsurcharge should be remitted. The conferment of this power on theMinister does not dispense with his duty to act judicially, according tothe “ merits of the case ”, and docs not convert the power given to himinto one of unfettered and absolute discretion, as submitted by the CrownCounsel.
The Crown Counsel further stressed on the differences in the legalterminology used in sections 196 (2) and 196 (3). He contended thatwhereas special procedure is provided by section 196 (2) to hear appeals,no such procedure is provided by section 196 (3) and, therefore, he con-tended that the Minister need not have given any notice to the petitionerinforming him that his appeal would be heard on a particular day. Sucha contention, however, is untenable.
The point which arises is an important one in view of the modern trendof legislation to entrust executive officers with quasi-judicial functions.The Legislature often sets out the procedure to be followed by suchofficers in hearing appeals or provides for rules to be made by such officers,which are to have the force of law. Where such procedure is set out, thedictates of natural justice are observed by the executive officer adheringto such procedure. Where, however, no such procedure is set out, theprinciples to be followed, and the powers of the High Co rut to issue writsof certiorari, are set out in the opinion of Lord Parmoor in the House ofLords in the case of Local Government Board v. Arlidge 1 in the followingterms :—
•
“ The power of obtaining a writ of certiorari is not limited to judicialacts or orders in a striot sense, that is to say, aots or orders of a Courtof law sitting in a judicial capacity. It extends to the acts and ordersof a competent authority which has power to impose a liability or togive a deoision which determines the rights or property of the affected1 {1915) 84 L. J. K. B. 72 at 8G and 87.
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TAMBIAH, J.-—Munasinghe v. The Auditor-General
parties. Where, however, the question of the propriety of procedureis raised in a hearing before some tribunal other than a Court of law,there is ho obligation to adopt the regular forms of legal procedure.
■ It is sufficient that the case has been heard in accordance with theprinciples of substantial justice. ”
*
“ In determining whether the principles of substantial justice havebeen complied with in matters of procedure, regard must necessarilybe had to the nature of the issue to be determined and the constitutionof the tribunal.. ”
•
In Arlidge’s case (supra) the writ of certiorari was refused becausespecial procedure for hearing appeals were enacted and the Local Govern-ment Board against whom the writ was asked, gave the parties a fairopportunity of being heard before them and stating their case and views.In this case, the earlier case of Spademan v. Plumstead District Board ofWorks1 was cited with approval by Lord Parmoor. In Spackman’scase (supra), Lord Selbome, in the course of his opinion, stated :“ No
doubt, in the absence of special provisions as to how the person who isto decide is to proceed, the law will imply no more than that the substan-tial requirements of justice shall not be violated. He is not a Judgein the proper sense of the word: but he must give the parties an oppor-tunity of being heard before him and stating their case and their view. ”
In the instant case, however, although no procedure for hearing appealsby the Minister is set out, no opportunity was afforded to the petitionerto be heard and one of the fundamental rules of natural justice, namely,that a person must be heard before he is condemned has not beenobserved.
The Crown Counsel contende ’ that when the petitioner addressed hisappeal to the Minister, he waived all rights to be heard. As section196 (3) of the Town Councils Ordinance No. 3 of 1916 does not prescribeany particular form of appeal, the petitioner was at liberty to adopt thisparticular form of appeal. The letter to the Minister, a copy of whichwas given by the Crown Counsel, at the request of the Court, sets out thefacts and the relevant provisions of law, and contains a prayer in thefollowing terms :—
“ Under these circumstances, I appeal to you in terms of Section196 (3) of Town Councils Ordinance No. 3 of 1946 that the decision of theAuditor, Town Council, Madampe, to disallow the expenditure ofRs. 28,962/48 and surcharge such sum from me be set aside. ”
Nowhere in the letter has the petitioner stated that the appeal can bedecided by the Minister, in the petitioner’s absence. As observed byCharles J. in Stafford v. Minister of Health 2,
… The mere giving of the notice of objection, in accordance
with the statutory requirement, and setting out the grounds of objectionis not an adequate presentation of the appellant’s case. ”
54 L. J. M. C. SI ; 10 A. C. 229.2 (1940) 1 K. B. 621 at 625.
William v. Dharmamri
479
In the instant case, the Minister of Local Government and Housing,in not giving an opportunity to the petitioner to be heard in appeal, hasviolated principles of natural justice and has exceeded his jurisdiction.Accordingly, I quash the order of the Minister disallowing the appeal ofthe petitioner, dated 1.9.59 and upholding the surcharge of Rs. 28,962/48.
I do not propose to quash the order of the Auditor-General, the 1st
respondent, as the petitioner has chosen to appeal from the Auditor-
General’s order to the Minister. The writ of certiorari does not lie in• •
cases where there is another effective remedy open to the petitioner. Theresulting position in this case is that the appeal by the petitioner is stillpending before the Minister and I have no doubts that the Minister willgive an opportunity for both the petitioner and the 1st respondent to beheard. The failure to notice the petitioner is perhaps due to amisapprehension of legal principles.s
The application against the 2nd respondent is allowed but the applica-tion against the 1st respondent is dismissed. I award no costs in thisappeal.
Application against 2nd respondent alloived.Application against 1st respondent dismissed.