022-NLR-NLR-V-48-PERERA-Petitioners-and-MUNICIPAL-COUNCIL-OF-COLOMBO-et-al-Respondents.pdf
66
Perera v. Municipal Council of Colombo.
1947Present: Nagalingaxn A.J.PERERA, Petitioner, and MUNICIPAL COUNCIL OF COLOMBOet al., Respondents.358—Application for Writ of Mandamus against theColombo Municipal Council and the LocalGovernment ' Service Commission.
Writ of mandamus—Breach of duty arising from contract of service and not ofa public character—Not remediable by mandamus—'Writ will not begranted where another remedy is available.
The petitioner who was employed as a dispensary medical officer,under the 1st respondent, the Colombo Municipal Council, applied for awrit of mandamus to compel the 1st respondent and the Local GovernmentService Commission, the 2nd respondent,' to reinstate him in the post,from which he had been interdicted, and to pay him arrears of salaryfrom the date of his interdiction till reinstatement.
Held, that in an application for a ■ writ of' mandamus the applicantmust have a right to the . performance of some duty of a public and not- merely of a private character.
Held, further, that a writ of mandamus is.-issued only where no otherspecific means of securing relief exists.
NAGALINGAM AJ.—Perera v. Municipal Council of Colombo. 67
A
PPLICATION for a writ pf mandamus against the ColomboMunicipal Council and the Local Government Service Commission.
N. E. Weerasooria, K.C. (with him N. Kumarasingham), for thepetitioner.
H. V. Perera, K.C. (with him E. B. Wikramanayake), for the 1strespondent.
N. Nadarajah, K.C. (with him Walter Jayawardene), for the 2ndrespondent.
Cur. adv. vult.
January 21, 1947. Nagalingam A.J.—
This is an application by the petitioner who was employed as adispensary medical officer under the 1st respondent, the ColomboMunicipal Council, for a writ of Mandamus on the Council and on theLocal Government Service Commission, the 2nd respondent, to compel.them to reinstate the petitioner in the post held by him from which hehad been interdicted and to pay him arrears of salary from the date ofhis interdiction till reinstatement.
The respondents take the objection that a writ of Mandamus does notlie in the circumstances disclosed by the applicant’s petition. The factswhich give rise to this petition are: The petitioner was appointedDispensary Medical Officer under the 1st respondent on June 14, 1939,the terms of employment being set out in an agreement of that datefiled of record. One of the terms of employment is stated to be that ifthe employee should seriously misconduct himself in his office it would becompetent for the Council to declare his appointment at an end and todismiss the officer. On or about September 19, 1945, the then ActingCommissioner of the Council in consequence of certain representationsmade to him against the petitioner in regard to the latter’s conduct asDispensary Medical Officer interdicted the petitioner from service andtook steps under certain standing orders of the Council to have chargesframed against him and to have, the charges investigated by a committeeof five members of the Council.. The committee concluded its investiga-tions on or about February 12, 1946, but before it could submit itsreport to the Council the functions of the Council in regard to theappointment of, disciplinary action against, and dismissal of its servantsbecame vested in the 2nd respondent, the Local Government ServiceCommission, which perforce had to commence proceedings de novo inregard to the investigation of the charges framed against the petitioner.The petitioner while complaining of delay in regard to the inquiry of thecharges framed against him avers that he has been paid only half salaryfrom the date of his interdiction and that as no final decision has beenarrived at in regard to the charges framed against him even after thelapse of a considerable period since his interdiction he makes hisapplication for the writ to secure his reinstatement.
On these facts it would be manifest that, the object of the applicationis to compel the performance by the respondents of certain obligationsarising between the petitioner and the respondents out of the contract of
68 NAGALINGAM A.J.—Per era v. Municipal Council of Colombo.
service entered into by the petitioner with’the11st respondent. That thepetitioner is merely an employee or a servant of the 1st respondent therecan be no doubt that there can be equally little doubt that the neglect orrefusal on the part of the respondent Council to pay the petitioner hissalary in full or to reinstate him in his office is a breach of a duty not ofa public but of a private character.
Shortt in “ Informations, Mandamus and Prohibition” (page 227) laysdown that one of the principal general rules governing the issue of a writof Mandamus is that “ the applicant must have a legal right to theperformance of some duty of a public and not merely of a privatecharacter”. In support of this proposition he cites a passage fromLord Hardwick’s judgment in the case of Rex v. Wheeler referred totherein from which I shall quote an excerpt: —
“ The reason why we grant these writs is to prevent a failure ofjustice and for the execution of the common law or of some statute orof the King’s charter ; and never as a private remedy … Now
here there don’t appear to be any failure of justice but only a disputeabout a private right.”
A passage from Bailey J’s judgment in Rex v. Bank of England (1819)
B & Aid. 622 is also cited : —
“ The Court never grants this writ except for public purposes and tocompel performance of public duties.”
The most familiar examples of the issue of a writ of Mandamus in ourCourts is in regard to the refusal of a Judge of an inferior Court to exercisejurisdiction or against a public officer neglecting or refusing to fix a dayfor nomination of candidates to a local body or to take the necessarysubsequent steps. Certainly the petitioner’s Counsel has not been ableto cite an instance where this writ has been invoked to assist a party tosecure private remedy.
Having regard to this aspect of the matter alone, therefore, therecannot be any doubt that the application cannot be acceded to; butthere is another equally fatal objection to the application, and that, touse the language of Shortt (page 227) is that—
“ There must be no other effective lawful method of enforcing theright.”
In the case of re Barlow (1861) 30 L.J.Q.B. 271 the proposition is thusstated : —
“ It is well settled that where there is a remedy equally convenient,beneficial and effectual, a mandamus will not be granted. This is nota rule of law but a rule regulating the discretion of the Court in grantingwrits of Mandamus.”
To the same effect is the dictum of Patteson J. in ex parte Robbins (1839)7 Dowl. 568 : —
“The Court will never grant a Mandamus to enforce a general law' of the land which may be enforced by action.”
The interdiction and the payment of half salary to the petitioner iseither in accordance with the terms and conditions though not express
SOERTSZ A.CJ.—The King v. Surabial Singho.89
but Implied governing the employment by the Council of its officers orit is not. If the latter it has not been gainsaid that the employee has notthe right to institute an ordinary civil action to enforce his remediesagainst the Council and in fact to claim continuing damages if the inter*diction was unlawful till reinstatement. Recourse, therefore, need notbe harf to the issue of a writ of mandamus, which is a high prerogativewrit and which is issued only where no other specific means of securingrelief exists.
In view of the foregoing it follows that the application fails and istherefore dismissed with costs.
.Application dismissed.