029-NLR-NLR-V-69-LOCAL-GOVERNMENT-SERVICE-COMMISSION-Appellant-and-S.-NAGENDRAN-Respondent.pdf
SANSONI, C.J.—Local Government Service Commission o. Nagendran
149
1966 Present: Sansoni, C.J., and Siva Supramaniam, J.LOCAL GOVERNMENT SERVICE COMMISSION, Appellant,and S. NAGENDRAN, Respondent
5. C. 445/1964—D. C. Colombo, 60495/M.
Local Government Service Commission—Immunity from liability to pay the salary of amember of the Local Government Service—Scope-—Local Government ServiceOrdinance, ss. S, 9, 10, 14, 23, 40 (1) (e), 59.
A member of the Local Government Service ia not entitled to sue the LocalGovernment Service Commission for arrears of salary and emoluments, even ifhis post is abolished by the local authority where he is employed.
.A.PPEAL from a judgment of the District Court, Colombo.
IF. Jayewardene, Q.C., with IF. D. Ghtnasekera and S. S.Basnayake, for the Defendant-Appellant.
S. Nadesan, Q.C., with S. Sharvananda and S. C. Crossette-Thambiah,for the Plaintiff-Respondent.
Cur. adv. vult.
September 22, 1966. Sansoni, C.J.—
The plaintiff has sued the Local Government Service Commission torecover his salary and emoluments as a member of the Local GovernmentService for the period 1st October 1962 to 31st August 1963. He wasemployed prior to 1st April 1946 as Electrical Superintendent, Jaffna
£•—11 829 U/67)
150 SANSONI, O.J.—Local Government Service Commission v. Nagendran
Urban Council. On 1st April 1946 he became a member of that Service,in which capacity he was appointed to various posts, the last beingthat of Electrical Engineer, Jaffna Municipal Council. The post wasabolished by the Council as from 30th September 1962. The plaintiffclaims that the Commission is liable to pay his salary and emolumentsfrom 1st October 1962.
The Commission pleaded, among other defences, that although theplaintiff was a member of the Service it is not liable in law to pay theplaintiff’s salary. The plaintiff won in the lower Court and the Commis-sion appealed. The main argument urged in support of the appeal isthat the Commission is not liable to pay the salary of the plaintiff or anymember of the Service, since that liability has to be discharged by localauthorities where members of the Service are appointed to posts in theService of those authorities.
Certain sections of the Local Government Service Ordinance, Cap. 264,are relevant to the matter in dispute.
Section 11 (1) (a) provides that the Commission shall have, amongother powers, the power to appoint, employ, remunerate and control itsofficers and servants. The phrase “ officers and servants ” in this contextrefers only to the Secretary, the Accountant and such other officers andservants as the Commission may deem necessary for the purpose ofcarrying out the provisions of the Ordinance, and who constitute thestaff of the Commission—see ss. 8, 9 and 10. It is significant that nopower is given by s. 11 to pay the salaries of members of the Service.Section 14 provides that the expenses of the Commission, including thesalaries, allowances, pensions and gratuities payable to the members orthe staff of the Commission, but not including the salaries, allowances,pensions and gratuities payable to members of the Service, shall be paidout of moneys provided for the purpose by Parliament under the annualAppropriation Act. Here again the omission to make the salaries andallowances of members of the Service payable by the Commission isworthy of note. Section 23 requires every local authority to permiteach member of the Service who is appointed by the Commission to anypost in the service of that authority to perform the duties of that post, andto pay out of its funds the salary and allowances of each such member.Section 59 states that the pension, gratuity or retiring allowance grantedto a retired member of the Service, including the death gratuity grantedunder s. 58 (2) in respect of a deceased member of the Service, shall bepaid by the Commission.
All these provisions seem to me to indicate quite clearly that theCommission is neither required, nor has the power, to pay the salaries ofthe members of the Service, and that they are payable only by the localauthorities. I took that view in an earlier case and I am still of the sameview—see The Local Government Service Commission v. Kandasamy l. Iwould also refer to Pathirana v. Gunasekera 2. .
1 (1065) 68 N. L. R. 1.
(1962) 66 N. L. R. 464.
SANSONI, O.J.—Local Government Service Commission v. Nagendran
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The Ordinance does not envisage a member of the Service not beingappointed to a post in the service of a local authority : and once a memberis so appointed, the obligation to pay his salary devolves under s. 23solely on that authority.
Mr. Nadesan relied on s. 40 (1) (e) of the Municipal Councils Ordinance,Cap. 252, which gives a Municipal Council the power to abolish any postor office in the service of the Council, whether or not such post or officeis a scheduled post within the meaning of the Local Government ServiceOrdinance. He relied strongly on this provision to argue that once thepost of Electrical Engineer was abolished by the Municipal Council ofJaffna, the Council ceased to be liable to pay the plaintiff’s salary and theCommission then became liable to pay. I do not accept the argumentthat because the post was abolished the Council ceased to be liable topay the salary and allowances of the plaintiff, even though he continuedto be a member of the Service. Section 23 defines the liability of thelocal authority as a liability to pay the salary and allowances of eachmember of the Service appointed to a post in the Service of that authority.That liability will continue until the member is transferred to a post insome other local authority. The truth of the matter, I think, is that asituation such as that which arose in this instance was not contemplatedby those who drew up the Municipal Councils Ordinance and the LocalGovernment Service Ordinance. I doubt if they thought that the Commis-sion and local authorities would ever be at cross purposes. And certainlythe abolition of a post was never intended to be used as a means ofgetting rid of a member of the Service or avoiding the obligation to payhim his salary. So long as he is appointed to a post, he is entitled tohis salary payable by the local authority, because it is payable bynobody else, there being no statutory duty or power vested in theCommission (which is a statutory body) to pay the salaries of membersof the Service.
It is not open to us to fill the gaps, which is what the plaintiff wants usto do. We cannot add words to s. 14 providing for a special supple-mentary vote to be obtained from Parliament, which i3 what Mr. Nadesansuggested. Parliament, when it enacted the Ordinance, did not think itproper to introduce such a provision.
In this view of the matter it is not necessary to go into the questionwhether the Commission has terminated the employment of the plaintiffor not. I would allow the appeal and dismiss the plaintiff’s action withcosts in both Courts.
Siva Supramaniam, J.—I agree.
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Appeal allowed.