MARCELIN PERERA, Petitioner, and SOCKALINGAM CHETTIAR, Respondent

095-NLR-NLR-V-47-MARCELIN-PERERA-Petitioner-and-SOCKALINGAM-CHETTIAR-Respondent.pdf


Marcelin Perera v. Sackalintjam Chet!tar.
265
1946
Present.: Howard C.J.
MARCELIN PERERA, Petitioner, and SOCK ALIN GAMCHETTIAR, Respondent.
Application for a Writ of Mandamus (55).
Writ of Mandamus—Interdictioiv of Secretary of Urban Council'by Chairman—No previous resolution by Council—Legality of interdiction— UrbanCouncils Ordinance, No. 01 of 1939, ss. 39a, 239a.
Where the Chairman of an Urban Council interdicted the Secretaryof tho Council without the authority of a previous resolution passedby the members of the Council—
Held, that a writ of mandamus would lie to restore tho Secretary tohis office.
A
PPLICATION for a writ of mandamus on the Chairman of theUrban Council of Anuradhapura by the petitioner who was the
Secretary of the Council.
N. NadarajaJi, K.C. (with him E. B. Wikramanayake and H. Waniga-lunge), for the respondent, claims the right to begin as he is noticed toshow cause why the rule should not be made absolute :—The respondentdenies he interdicted the petitioner from duty ; he has only takendisciplinary action under the bye-laws. The petitioner has, therefore,misconceived his remedy. The Chairman is the executive officer of theCouncil—See section 34 (2) of Urban Councils Ordinance (No. 61 of 1939).Section 39a makes provision for the appointment of a Secretary and bysection 48 only the Council has the power to appoint and remove anyofficer—See also section 239 (a).
Even assuming it is an interdiction or suspension from duty a writ ofmandamus will not lie to restore a person irregularly removed fromoffice.—See Shortt on Mandamus (1887 ed.) at p. 289 ; K v. Mayor,Aldermen and Common Council of London 1. There is an action forwrongful dismissal available to the petitioner, and where another remedyis available a mandamus will be refused—See Shortt on Mandamus atpp. 233 and 234; Mohamed Sahib v. Principal Collector of Cusoms 2 andSamynathan v. Whitehom 3.
H. V. Perera, K.C. (with him JET. W. Jayavjardene), for the petitioner.—The rule of law that where there is another remedy mandamus will notlie applies only to a case where a person who had the power to do soirregularly suspended or interdicted an officer. Where the Chairmanis under no contractual obligation to the Secretary no aption can bebrought against him by the Secretary for damages. No action lies fortort as the Chairman has asked the Secretary to refrain from doingcertain things. Provision is made in the Urban Councils Ordinancefor the dismissal of officers on a resolution passed in Council.—Seesection 239a.
[Howard C.J.—You say that the Chairman has no right to framecharges ?]
1 100 English Reports, 96.
3 (1934) 36 N. L. B. 225 at p. 230.
2 (1933) 2 C. L. W. 330.
12—xr. vi i.13—H 16792 (8/68)
SJHfi
HOWARD C.J.—Mareelin Pcrera ». Soekalintfam Cheniar.
The Chairman conld frame charges, but he must place them before theCouncil ; he cannot ask the Secretary for an explanation. Refusal toanswer charges is therefore not insubordination. The Secretary hascertain statutory duties to perform and no one can take away a statutoryduty imposed on an officer.
[Howard C.J.—What are the Secretary’s statutory duties ?]
The Secretary has the powers referred to in sections 39a (1) and 39a (2)of the Urban Councils Ordinance. Those powers conferred on him inthe event of an interregnum are not the only powers given to the Secretary ;his powers and duties extend to those conferred on him by rules framedunder section 205 of the Ordinance. A distinction should not be drawn• between the duties imposed by the Ordinance and those imposed by therules framed under the Ordinance—See section 39a (2) of Urban CouncilsOrdinance and section 14 (1) (e) of the Interpretation Ordinance.Further, sections 33 (5), 34a (6), 40 and 228 of the Urban CouncilsOrdinance itself confer statutory powers and duties on the Secretary.By section 24S of tho Urban Councils Ordinance rules and regulationsframed under the repealed Ordinance (Cap. 195) are retained. Theserules are contained in Gazette No. 8,458 of June 16, 1939, and they imposeseveral duties on the Secretary.
Where there is no other adequate legal remedy the Court is bound tointerpose by way of mandamus—See Shortt on Mandamus (1887 Edn.)at pp. 224 and 225, and King v. Speyer and Casset 1
A Nadarajah, K.C., in reply.—The petitioner has other remedies.Suspension is not equivalent to removal from office and therefore nomandamus should be granted—The King v. The Company of Free Fishersand Dredgers of Whitslable 2.
Cur. adv. milt.
May 30, 1946. Howard C.J.—
The petitioner prays that the Court may be pleased to issue a writ ofmandamus on the respondent directing him :—
to restore the petitioner to his office in the Urban Council of
Anuradhapura ;
to withdraw the orders made without authority ;
to countermand the orders of November 12, 1945, and
February 12, 1946, referred to in paragraphs 6 and 19 of hispetition and to cause all official documents necessary for theperformance of the petitioner’s functions and duties to behanded to the petitioner and to allow the petitioner access toall official documents and files ;
to permit the petitioner to carry out his functions anti duties as
Secretary of tho said Council.
The petitioner is the Secretary and the respondent is the Chairman of theUrban Council of Ammidhepura- On October 30, 7 945, the respondentby letter Pi called upon tho petitioner to show cause within 7 days whyho should not be punished on various charges which wero specified.
(1916) I K. 13. 5.9-5 alp. 612.
(1806) 7 East 358.
HOWARD C.J.—Mareelin Perera v. Sockalingarn Chettiar.
267
Copies of fcho correspondence (13 annexures) in support of these chargeswere attached to PL By lottor of November 5, 1!M5 (P2) the petitionerrepliod by saying that lie did not wish to submit a formal explanationas the procedure adopted was irregular. After the exchange of somefurther letters the respondent on November 12, 1945, wroto P5 which isworded as follows :—
“ Secretary,—Please note that from today you shall not receiveany papers of this office and have access to any of the official documentsand, &e., until you hear from me to the contrary.
Please hand over forthwith to the Chief Clerk, Mr. K. B. Kulatunga,all official documents and other articles in your charge, and awaitfurther orders.
(Sgd.) iSoCKALESTGAM ChETTTAB,
Chairman, U. C.,
12.11.45.”
There was a further exchange of letters between the petitioner and therespondent in which the former endeavoured to elucidate from thelatter as to whether he was interdicted from duty. On November 13,1945, the petitioner by P6 informed the respondent that he took it hewas interdicted from duty and was handing over and leaving the office.On November 14, 1945, the respondent by P9 called for an explanationfrom the petitioner as to why he was not in office. On November 14and 19, 1945, the respondent by P12 and P13 informed the petitionerthat he was not interdicted or suspended from duty. The petitionerwas also told by PI2 that he must be in the office during office hours.On January 31, 1946, the respondent resigned his office of Chairmanshipof the Council. On the same day the Chief Clerk wrote the followingletter (P18) to the petitioner :—
“ Mr. Pereka, Secretary,—I have fully considered your orderof even date. You -will appreciate that I am under orders of theprevious Chairman to do certain work and perform functions of theSecretary. All this comes under office arrangements which will holdgood till a new Chairman is elected. I regret therefore that I amcompelled to carry out all duties I was hitherto doing.
Under the circumstances I regret I cannot comply with 3'■our requestfor keys, &c., of which I have temporary custodianship.
If C. L. G. Orders me to hand over everything to you I shall be onlytoo pleased to do so.
(Sgd.) Kulatuhoa,
Anuradhapura, 31.1.46.Chief Clerk.
The Chief Clerk also instructed all officers to comply with the previousChairman’s order of November 12, 1945. Also 011-the same day the ChiefClerk by letter P19 consulted the Commissioner of Local Governmentwith regard to his position. By P20 dated February l, 1946, tho Com-missioner of Local Government informed the Chief Clerk that thepetitioner was still the Secretary of the Council and that the Chief Clerkshould hand over to the petitioner what he took over from him and
268
HOWARD C..J.—Marcelin Peroru v. fiockalingam C'heltiar.
resume his former duties under him. On Eebruary 12,1940,
the respondent was re-eJeotod Chairman oftbe Council. On the sameday by I’2i lie directed that the petitioner should hand over all officialpapers to the Chief Clerk.
Mr. Nadarajah on behalf of the respondent has contended that thelatter’s actions have been within the ambit of the powers vested in himby the Urban Councils Ordinance, 'No. 01 of 1939, as amended. Hefurther argues that the petitioner has riot been either interdicted orsuspended by the respondent. I will first consider whether this argu-ment can lie maintained. I find from the dictionary that the word“interdict” means “ prohibit ” or “forbid”. The office of Secretaryto an Urban Council is created by section 39a which is worded as follows:—
“ (1) Every Urban Council shall appoint a fit and proper personto he the Secretary of the Council.
The Secretary of an Urban Council shall exercise, perforin and
discharge such powers, duties and functions as are conferredor imposed upon him by this Ordinance or by rules ma.deunder section 205 or by any other written law for the timebeing in force.
During the period intervening between the expiry of the term
of office of the members of an Urban Council under section 16and the election of a Chairman after the ensuing generalelection of members to that Council, and, in the event of thevacation of the office of both the Chairman and the Vice-Chairman by the death, resignation, removal or disqualifica-tion of the holders thereof, then, during the period inter-vening between tho vacation of the office of the Vice-Chairmanand the election of a new Chairman, the Secretary of theCouncil shall, in addition to the powers referred to in sub-section (2), have authority, subject to the approval of thoCommissioner and subject to such limitations and conditionsas may ho prescribed by rules under section 205, -to incurexpenditure on behalf of the Council, to make paymentsout of the local fund, and to exercise and perform such ofthe powers, duties and functions of the Chairman as may bespecified by the Commissioner or proscribed by rules asaforesaid.”
Sub-section (2), it will ho obsorved, provides that tho Secretary shall notonly poi-form and discharge the powers, duties and functions conferredoil him by tho Ordinance but also those conferred on hire by rules madeunder section 205. A perusal of the provisions of tho Ordinance indicatestlvat duties are conferred on tho Secretary by sections 34 (6), 40 and 228of the Ordinance. Under section 2'18 of the Ordinance it is providedthat the rules made under the repealed Ordinance (Cap. 195) shall continuein force. Those rules are contained in C'nylon 0'overnment Gazette No. 8,458of Juno 1(5, 1939, and provide for the vesting of various duties andpowers in the Secretary. Rule 19 provides that all counterfoilod booksshall be in his charge. Rule 24 for the initialling of entries in theRegister of Cheques. Regulations 28a, 43, 57, 83, 91, 94, 95, 96, 166,
HOWARD C. J.—Marcelin Per era v. Sockalingam OUell iar.
269
173, 191, 221, and 233 make provision for other duties. By virtue ofsection 14 (1) (e) of the Interpretation Ordinance (Cap. 2) all rulesshall have the force of law as fully as if they had been enacted in theOrdinance. The Secretary was therefore vested with numerous dutiesvested in him by Statute. In this letter of November 12, 1945, therespondent has informed the petitioner that he shall not receive anypapers or have access to any of the official documents and that he is tohand over forthwith to the Chief Clerk, Mr. K. B. Kulatunga, all officialand other documents in his charge and await further orders. In hisletter of February 12, 1946 (P21) the petitioner is informed that theorders of the respondent of November 12, 1945, stand and he is to handall official papers to the Chief Clerk. In my opinion those directionsof November 12, 1945, and February 12, 1946, by the respondent pro-hibited the petitioner from performing the duties and functions vestedin him by Statute. They amount to an interdiction or suspension of thepetitioner.
The next question is whether the respondent in interdicting or suspend-ing the petitioner was acting within his powers. In my opinion he wasnot. It is true that by section 34 (2) it is provided that the Chairmanshall be the executive officer of the Council and all executive acts andresponsibilities which are by the Ordinance directed or empowered to bedone or discharged by the Council may unless a contrary intentionappears from the context be done or discharged by the Chairman. Theduties and responsibilities of the Chairman are also elaborated anddefined by Rules 1 and 2 of the Rules to which reference has been made.But neither in the Ordinance nor the rules is there any provision empower-ing the Chairman to interfere with the statutory duties imposed on theSecretary by law. Nor is there any power permitting the Chairmanto interdict or suspend the Secretary from the performance of thosestatutory duties. In fact it is clear from the provisions of section 239athat no such power is vested in the Chairman. This section is wordedas follows :—
“ (1) No executive officer .shall be removed or dismissed from hisoffice except for misconduct or for neglect of, or incapacityfor, his duties, and except on a resolution passed by notless than two-thirds of the total number of members of theCouncil.
No executive officer shall be suspended or fined or reduced in
status nor shall the increments to his salary be withheld forany breach of departmental rules or discipline or for careless-ness, incompetence, neglect of duty or other misconductexcept on a resolution passed by not less than two-thirdsof the total number of members of the Council.
In this section “ executive officer ” means any officer appointed
to be or to act as the Secretary, the Electrical Superintendentor the Superintendent of Works of an Urban Council andincludes any officer declared by the Executive Committee,by rule made under section 205, to be an executive officerfor the purposes of this section.”
!•-J.X. A 61598(5/46)
270
HOWARD C.J.—Marcelin Perera v. Socknlingam Cheltiar.
The Secretary of the Council can only be suspended by virtue of a resolu-tion passed by not less than two-thirds of the total number of membersof the Council. It is clear therefore that in suspending the petitionerthe respondent was not acting within the scope of the authority vestedin him by law.
It only remains to consider whether in the circumstances a writ ofMandamus will lie. In Shortt on Mandamus, p. 224 it is stated asfollows :—
“ A mandamus is certainly a prerogative writ, flowing from theKing himself, sitting in this Court, superintending the police andpreserving the peace of this country, and will be granted wherever aman is entitled to an office or a function, and there is no other adequatelegal remedy for it.” But the Court ought to be satisfied that theyhave ground to grant a mandamus, “ it is not a writ that is to issueof course, or to be granted merely for asking.”
Can it be said in this case that there is no other remedy ? No otherremedy can be suggested. In the case of The King v. The Company ofFree Fishers and Dredgers of Whiislable in the County of Kent1 the applicantfor a writ of Mandamus was left in possession of his office and onlyexcluded from participating in the profits. A mandamus was refusedon the ground that he had his action for the tort against those whodisturbed him in his participation of them. In this case no ordinaryaction is open to the petitioner against the respondent for prohibitinghim from performing his duties. In The King v. Speyer and Cassel 2the question arose as to the issue of a quo warranto. At p. 612 LordReading C.J., stated as follows :—
“ No case has been cited of a refusal by the Court of an informationwhere the re-appointment to an office held at pleasure would bo illegal.It would seem strange that the Court by refusing .the remedy shouldperpetuate illegality. I cannot conceive why tho Court should refuseto interfere if the appointing body persisted in retaining in office aperson disqualified in law and no remedy other than the informationis available. In the present case the information sought is the onlymeans of testing the legality of the appointment, and if, as contended,itis contrary to law, quo v:arranlo would seem in principle a convenientand proper way to obtain a judicial decision to that effect. If theirregularity in the appointment of an office held at- pleasure could becured by immediate re-appointment, the Court in the exercise of itsdiscretion would doubtless refuse the information, but if, as in thiscase, any re-appointment would be illegal, I cannot see any soundreason why the Court should not permit the matter to be broughtbefore it.”
Applying this reasoning to the present case which is an applicationfor a writ of Mandamus, the petitioner is legally entitled to the officeand to perform the duties of such office. If after the issue of the writthe respondent again suspends the petitioner such action would beillegal. The application for the writ is the only means of testing the1 (ISOS) 7 East 353.* (1916) I. K. B. 595.
The K.V. Motor Transit Co., Ltd. V. The Colombo-Ralnajrura Omnibus Co., Ltd. 271
legality of the respondent’s actions and if such actions are contrary tolaw, mandamus would seem in principle a convenient and in fact the onlyway to obtain a judicial opinion to that effect. In the cases of TheKing v. Mayor of London'1, Samyruithan v. Whitehom2, and MohamedSahib v. The Principal Collector of Customs 3 a writ of mandamus wasrefused in each case because another remedy was available to the appli-cant. In the present case no other remedy is available. The applicationis therefore granted with costs and a writ of mandamus will issue, butwill be limited to paragraphs (a), (c) and (d) of the application.
Application allowed.