029-NLR-NLR-V-49-RODRIGO-Petitioner-and-THE-MUNICIPAL-COUNCIL-GALLE-et-al.-Respondents.pdf
W i NI ITT AW J.—Rodrigo v. The Municipal Council, GaUe.
89
1947Present: Windham J.
RODRIGO, Petitioner, and THE MUNICIPAL COUNCIL,GALTiU, et al., Respondents.
jH. C. 443—Application for a Writ of Mandamus on Galle MunicipalCouncil and on Local Government Service Commission.
Writ of mandamus—Officer in Local Government Service—Refusal by MunicipalCouncil to give him work—Right to mandamus—Statutory duty—Alternativeremedy—Ordinance No. 43 of 1945—Ordinance No. 29 of 1947, section 41 (1) (e).Petitioner who was a member of the Local Government Service and a SeniorRevenue Inspector in the Moratuwa Urban Council was transferred to theGalle Municipal Council by the Local Government Service Commission witheffect from July 1, 1947. The Municipal Council refused to give him workand thereafter passed a resolution in terms of section 41 (1) ( e) of the MunicipalCouncils Ordinance, suppressing the post to which the petitioner had beenappointed as from October 31, 1947. The Council paid the petitioner hissalary up to October 31, 1947. The petitioner applied for a mandamus onthe respondents to give him work and to pay his salary.
Held, that a writ of mandamus did not lie because the petitioner’s officewas not one which conferred on him a statutory right to the performance ofhis duties and functions and his claim to reinstatement was merely a disputeabout a private right.
Held,further, that the writ would not lie for the reason also that the petitionerhad an equally effective remedy by civil action.
Application for a writ of mandamus.
S. Barr Kumarakulasingham, with S. P. C. Fernando, for thepetitioner.
F. Perera, K.G., with U.A. Jayasundere, for tbe first respondent (theGalle Municipal Council).
F. N. Gratiaen,, K.C., with F. B. Witcramanajake, for the secondrespondent (the Local Government Service Commission)
Cur. adv. vult.
December 19, 1947. WiNDjIAM J.—
The petitioner, until Julj 1, 1947, was for some eight years a SeniorRevenue Inspector in the Moratuwa Urban Council. Prom April, 1946,he was a member of the Local Government Service. On March 17, 1947,the first respondents, the Galle Municipal Council, adopted a resolutionthat a new post in the Galle Municipal Council should be created on astated salary scale, and, pursuant to their resolution, they wrote to theChairman of the second respondents, the Local Government ServiceCommission, requesting him to fill the new post. On June 14, 1947,the second respondents, in pursuance of this request, wrote to theMoratuwa Urban Council ordering the transfer of the petitioner from12-N.L.R. Voi-xlix
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WINDHAM J.—Rodrigo v. The Municipal Council, dalle.
their employ into that of the first respondents, with effect from July 1,at a salary of Rs. 1,520 per annum with certain allowances, this salarybeing the maximum in the scale resolved upon for the post by the firstrespondents. The latter, when the appointment was intimated to them,resolved to request the second respondents to cancel the appointment,on the ground that the salary was too high and that in view of recentamendments to the Local Government Service Ordinance they wishedto consider the position de novo. The second respondents were informedaccordingly, but they refused to cancel the appointment. Meanwhile,on July 1, the petitioner reported for work in his new appointmentat the offices of the first respondent, but the latter refused to give himwork or to pay him any salary. Further correspondence between allthe parties ensued, but this three-cornered impasse persisted and stillpersists.
The only further action of legal relevance to the present petition wasthat upon September 22, 1947, the first respondents passed a resolutionto “ suppress ” their new post of Revenue Inspector with effect fromOctober 31, J947, and they duly intimated this resolution to the secondrespondents. In further pursuance of their resolution they paid to thepetitioner, and the latter accepted, his salary and allowances, at therate fixed by the second respondents, for the period July 1 to October 31,1947, while at the same time they reserved their contention that they hadnever given him employment and never accepted him a,-; their dulyappointed Revenue Inspector. Their resolution to “suppress” thepost was made in exercise, or purported exercise, of their powers undersection 41 (1) (»,) of the Municipal Councils Ordinance, No. 29 of 1947,which empowers them “ save as otherwise provided in sub-section (3),to abolish any post or office in the ssrvice of the Council, whether or notsuch post or office is a scheduled post within the meaning of theLocal Government Service Ordinance ”. Sub-section (3) excludesfrom the above provisions the power to abolish the office of Mayor,Deputy Mayor, Municipal Commissioner or Municipal Magistrate, andis therefore irrelevant.
Upon the above facts the petitioner seeks a writ of mandamua fromthis Court ordering the respondents “ to give the petitioner work and topay his salary as from July 1, 1947, together with travelling, lodgingand subsistence allowances in accordance with the Government FnancialRegulations ”. The petition w'as filed on September 30, 1947, on whichdate the first respondents allege and the petitioner denies (in theirrespective affidavits) that the petitioner was aware of the first respondents’resolution to abolish the post and to pay him his salary up to October 31,1947, but before they had in fact so paid the salary to him. So far asthat resolution is concerned, the petitioner’s contention now' is thatit was made in bad faith, and that for this reason alone the purported“ suppression ” of the post was void.
Is this a proper case for the grant of a writ of mandamu'i ? If the“ suppression ” of the post to Which the petitioner had been appointedwas lawful, then I think there can be no doubt that the writ could not begranted. For the petitioner has been paid his full salary' for the wholeperiod during which the post was in existence and, quite apart- from the
WINDHAM J.—Rodrigo v. The Municipal Council, Oalle.
91
question whether in such a case mandumus would be the proper remedy,the petitioner would have no grievance, since it would be now too lateto order the first respondents to give him work for the period July 1.to October 31, 1947 ; and any right which he might have to the recoveryof travelling, lodging and subsistence allowances would be the propersubject of an ordinary action in the appropriate court.
But even if the petitioner was right in contending that the “ sup-pression ” of the post with effect from October 31 was an act done inbad faith and was therefore void, would the remedy by mandamus lie ?I think it would not. Before granting the writ in such a case, this courtwill require to be satisfied of two things. First, it must be satisfiedthat the petitioner is being prevented from exercising a right to performcertain duties and functions legally conferred upon him by virtue of hisholding an office carrying with it such a right. Secondly, there must beno other adequate legal remedy available to him. In Marcelin Perera v.Sockalingam Chettiar 1, the necessity for this first requirement was madeclear. There the petitioner was a Secretary to an Urban Council (ofwhich respondent was Chairman) and the powers and duties attachingto that office were prescribed by Statute, namely, section 39a of theUrban Councils Ordinance, No. 61 of 1939. It was on these groundsheld that the petitioner in that case satisfied this first requirement forthe grant of a writ of mandamus that he be restored to his office. Butin the present case the petitioner has no powers or duties statutorilyvested in him. It may well be that he is a public servant and in theemploy of a public body (i.e., the first respondent) and indeed sections15 and 21 of the Local Government Service Ordinance, No. 43 of 1945,would seem to make that clear. But that is not the test. The questionis whether he has public duties and powers vested in him by statute,so that he can be said to be statutorily entitled to exercise them. InPerera v. Municipal Council of Colombo 2 where the petitioner was adispensary Medical Officer in the employ of the respondent council,mandamus was refused because it was held that the petitioner did notsatisfy the requirement that he “ must have a legal right to the per-formance of some duty of a public and not merely of a private character ”.There, as here, though the petitioner was performing duties of a publiccharacter in the employ of a public body, his duties and powers were notstatutorily prescribed, and his claim to reinstatement was held to bemerely a dispute about a private right, and as such not the subject for awrit of mandamus. I am unable to distinguish that case from thepresent one. It is contended that it should be distinguished becausein that case there appears from the judgment to have been a contractof service between the petitioner and the respondent council, whereasin the present case such rights as the petitioner has against the respondents,or either of them, are conferred not by private contract but by theprovisions of the Local Government Service Ordinance, No. 43 of 1945,and by regulations made thereunder. But that'does not prevent therights of the petitioner from being private rights. His right (if any)to reinstatement would only be a public right, and the act of the firstrespondents in suppressing his office would only be the breach of a public1 (1946) 47 N. L. R. 265.a (1947) 48 N. L. R. 66.
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CANEKERATNE J.—Tclaram v. Jinadasa.
duty, if he was the holder of an office to which specifi ed duties and powershad been statutorily attached. And his right (if any) to salary andallowances is a private and not a public right for the same reasons.
On these grounds alone this application for a wri t of mandamus cannotbe entertained. But it would have to be dismissed for a further reason,namely, that the petitioner has another and equally effective remedy,by civil action. If in such an action he can sho w that the suppressionof the office to which he claims to have been appointed was illegal, thenhe can sue for consequent damages until reiEiStatement, and for histravelling, lodging and subsistence allowances, in the appropriate civilcourt. The question whether he has any legal right against the re-spondents to “ work ” in the abstract, or any right to perform anyspecific work where no specific powers or duties have been statutorilyattached to the office to which he claims to have been lawfully appointedis one which would h'ave to be raised in such an action, and I thereforerefrain from deciding the point here.
For these reasons the application must be dismissed. The secondrespondent does not ask for costs, and having in view all the circums-tances of this case, and to the fact that the underlying dispute whichprecipitated it was between the two respondents, I make no order forcosts.
Application refused.