K. S. DE SILVA v. NATIONAL WATER SUPPLY AND DRAINAGE BOARD AND ANOTHER

001-SLLR-SLLR-1989-V-2-K.-S.-DE-SILVA-v.-NATIONAL-WATER-SUPPLY-AND-DRAINAGE-BOARD-AND-ANOTHER.pdf


SC K.S. De Silva v. National Water Supply and Drainage Board
K. S. DE SILVAv.
NATIONAL WATER SUPPLY AND DRAINAGE BOARD AND
ANOTHER
SUPREME COURT
A. G. DE SILVA, J., G. P. S. DE SILVA, J. AND JAMEEL, J.
S.C. APPEAL NO. 42/88;
C.A. APPLICATION NO. 386/88JUNE 01, 1989
Writ ol Mandamus – Failure by Court of Appeal to give reasons – Public duty
The post of Accountant in the National Water Supply and Drainage Board is not apublic office which attracts the remedy of mandamus. If the appointment is contractual,the writ does, not lie. A distinction must be drawn between duties enforceable bymandamus which are usually statutory and duties arising merely from contract.
It is neither possible nor desirable to lay down a hard and fast rule as to whetherreasons need be given when the court refuses to issue notice on respondents. Muchdepends on the nature of the application, the remedy sought, the pleadings, thesubmissions made to the Court and other matters germane to the maintainability of the
application.
In the case of the petitioner, there was no necessity to give reasons when 1he Courtof Appeal refused notice.
Cases referred to:
Ro'drigo v Municipal Council, Galle and another 49 MLR 89
Wijesinghe v. Mayor of Colombo 50 NLR 87
Perera v. Municipal Council of Colombo 48 NLR 66APPEAL from Order of Court of Appeal
F. C. Perera with Upali Ponnamperuma and A. W. Leelaratne for petitioner-appellant.
H. Soza for respondents-respondents.
Shibty Aziz, P.C. Addl. Solicitor General and S. Rajaratnam, State Counsel as amicus.
Cur. adv. vult.
July 05, 1989.
P. S. DE SILVA, J.
The petitioner who is an employee of the National Water Supply andDrainage Board (hereinafter referred to as the Board) filed an
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application before the Court of Appeal for a writ of Mandamus on theGeneral Manager of the Board. The first respondent was the Boardand the second respondent was the General Manager of the Board.In his petition he alleged, inter alia, that (i) he was appointed asBook-keeper (Grade III) of the Board by letter of appointment dated13.06.75; (ii) he was promoted as an Accounts Clerk, Grade I, byletter dated 20.05.86; (iii) by circular dated 29.08.86 the Board calledfor applications from its employees for the post of Accountant, GradeIV; (iv) the petitioner applied for the post, was called for an interview,and the Board approved his appointment to the post of Grade IVAccountant; (v) the 2nd respondent, the General Manager has failedto carry out the directions of the Board and has failed to issue to thepetitioner the letter of appointment. The petitioner accordingly prayedfor a writ of Mandamus directing the 2nd respondent to issue theletter of appointment.
When this application was supported by Counsel for the petitioneron 20.05.88, the Court of Appeal made the following order: “We haveheard counsel in support. Notice is refused". The petitioner has nowpreferred an appeal to this court against the order refusing notice.Special leave to appeal to this court was granted on two grounds: (1)whether the Court of Appeal was wrong in law in not giving reasonsfor its order made on 20.05.88, (2) Even so, would such failure entitlethe petitioner, in the circumstances of this case, to the relief he hasclaimed in the petition?
I shall first consider the ground of appeal (2) set out above. Theprincipal submission of Mr. Perera for the petitioner was that the writof Mandamus is available inasmuch as the 2nd respondent has failedto perform a public legal duty, namely, to issue a letter appointing thepetitioner to the post of Accountant, Grade IV, as directed by theBoard. On the other hand, both Mr. Aziz, Additional Solicitor-General,and Mr. Soza for the respondents maintained that the writ does notlie for the reason that the petition does not disclose a failure toperform a duty of a public nature which is an essential pre-requisitefor the issue of the writ. Mr. Soza further submitted that some of theaverments in the petition are not factually correct. This, however, isnot a matter which could properly be taken into account, since noticedid not issue on the respondents. The appeal before us has to beconsidered on the assumption that the averments in the petition arecorrect.
SC K.S. De Silva v. National Water Supply and Drainage Board'(G.P.S. De Silva, J.)3
On a scrutiny of the averments in the petition, it is clear that thepetitioner is applying for a writ of Mandamus on the 2nd respondentso that he may be admitted to the office of Accountant, Grade IV. Itseems to me that the precise question which arises for considerationis whether such office is a public office, for if it is an Appointmentwhich is essentially contractual in character, the writ does not lie. Theprinciple is succinctly stated by H. W. R. Wade: “A distinction whichneeds to be clarified is that between public duties enforceable byMandamus, which are usually statutory, and duties arising merelyfrom contract. Contractual duties are enforceable as matters ofprivate law by the ordinary contractual remedies, such as damages,injunction, specific performance and declaration. They are notenforceable by Mandamus which in the first place is confined topublic duties ” (Administrative Law, 5th Edn. Page 635)
The case of Rodrigo vs. The Municipal Council, Galle & another,
appears to me to have a direct bearing on the matters that havearisen for decision on this appeal. That was a case where thepetitioner who was a Revenue Inspector in the Moratuwa UrbanCouncil applied for a writ of Mandamus. He was transferred to theGalle Municipal Council (1st respondent) by the Local-GovernmentService Commission. When the petitioner reported for work at theGalle Municipal Council, he was refused work and he was not paidhis salary. The petitioner sought a writ of Mandamus to order therespondents (the Municipal Council and the L.G.S.C.) “to give thepetitioner work and to pay his salary”. In refusing the application forthe writ, Windham, J. stated that one of the matters upon which thecourt must be satisfied is that “the petitioner is being prevented fromexercising a right to perform certain duties and functions legallyconferred upon him by virtue of his holding an office carrying with it
such a rightin the present case the petitioner has no powers or.
duties statutorily vested in him. It may well be that he is a publicservant and in the employ of a public body (i.e. the 1st respondent)
But that is not the test. The question is whether he has public
duties and powers vested in him by statute, so. that he can be saidto be statutorily entitled to exercise them”. In short, Windham, J. heldthat the petitioner was not the holder of an office “to which specifiedduties and powers had been statutorily attached.”
Another decision which throws some light on this question isWijesinghe vs. Mayor of Colombo & another, (2). The petitioner was
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appointed to the post of Charity Commissioner by tha LocalGovernment Service Commission. The Municipal Council, Colombo,declined to recognise his appointment. The petitioner moved for awrit of Mandamus to order the respondents (the Mayor and theSecretary of the Colombo Municipal Council) "to permit him toperform his duties in the exercise of his lawful functions as Charity
CommissionerIn allowing the application, Gratiaen, J. stated: “I
do not agree that the petitioner’s right to the office of CharityCommissioner was only of a private nature which could adequatelybe enforced in a civil suit. The petitioner is an executive officer of theCouncil by virtue of section T 76 of the Municipal Councils Ordinance
of 1947 many, if not all, of the powers and functions
contemplated are clearly powers and functions of a public nature” (atpages 90 and 91). See also the case of Perera vs. Municipal Councilof Colombo, (3).
In support of his submission that the petitioner in the applicationbefore us is seeking admission to an office which is of a publiccharacter, Mr. Perera referred us to sections 68 and 69 of theNational Water Supply and Drainage Board Law No.2 of 1974. Butthese two sections refer only to the powers and duties of the GeneralManager of the Board and the powers of the Board to appoint “to itsstaff such officers and servants as the Board may deem necessaryand determine their terms of remuneration and other conditions ofemployment”. We were not referred to any rules made under thesaid Law No.2 of 1974 which speak of the powers or duties attachedto the post of Accountant. In my opinion, the office to which thepetitioner is seeking admission is not a "public office” of the kindwhich attracts the remedy by way of Mandamus. It is an officeessentially of a contractual or private character. Accordingly, as amatter of law, the writ of Mandamus does not lie and the applicationmust fail.
I now turn to the next question, namely, whether the Court ofAppeal was wrong in law in not giving reasons for its order refusingnotice. Mr. Perera urged that the order of the Court of Appeal wasgravely prejudicial to the petitioner and that he was handicapped inthe presentation of the appeal to this court by reason of the fact thatno reasons were given. While conceding that it would have beendesirable for the Court of Appeal to have given reasons for its order,Mr. Soza maintained that the law did not require the Court of Appeal
SC K.S. De Silva v. National Water Supply and Drainage Board (G.P.S. De Silva, J.)5
to give reasons. It was the submission of Mr. Aziz that this was nota case in which it was necessary to give reasons.
Mr. Soza referred us to de Smith’s Judicial Review ofAdministrative Action, 4th Edn. where the learned author states:“There is no general rule of English Law that reasons must be givenfor administrative (or indeed judicial) decisions” (page 148). Both Mr.Aziz and Mr. Soza drew our attention to an article entitled“Statements of Reasons for Judicial and Administrative Decisions”by Michael Akehurst appearing in the (1970) Modern Law Review atpage 154. The learned writer commences his article with thestatement: "The general rule is that there is no duty to state reasonsfor judicial or adminstrative decisions”.
It is unnecessary for present purposes to consider the “generalrule" set out above. It is neither possible nor desirable to lay down ahard and fast rule as to whether reasons need be given when thecourt refuses to issue notice on the respondents. Much depends onthe nature of the application, the remedy sought, the pleadings, thesubmissions made to the Court, and other matters germane to themaihtainability of the application. Suffice it to say, that on the factsand circumstances pleaded in the petition filed in these proceedingsit was manifest that a writ of Mandamus did not lie. In this view of thematter, I am of the opinion that it was not incumbent on the Court ofAppeal to give reasons for refusing notice in the instant case.
In the result, the appeal fails and is dismissed, but in all thecircumstances, without costs.
We wish to place on record our appreciation of the assistancegiven by Mr. Aziz who appeared as amicus curiae.
A.G. DE SILVA, J. – I agree.
JAMEEL, J. – I agree.
Appeal dismissed.