041-SLLR-SLLR-1997-2-WICKRAMASINGHE-v.-CEYLON-ELECTRICITY-BOARD-AND-ANOTHER.pdf
CA
Wickramasinghe v. Ceylon Electricity Board and Another
377
WICKRAMASINGHE
v.
CEYLON ELECTRICITY BOARD AND ANOTHER
COURT OF APPEAL.
DR. RANARAJA, J.
C.A. 696/96.
DECEMBER 4, 1996.
Writ of Mandamus/Certiorari – Employee – Extension beyond 55 years – Publicduty – Statutory right – Public office.
The petitioner, an Engineering Assistant employed by the Ceylon Electricity Boardapplied for an extension of the services upon reaching the age of retirement on10.10.94, and was granted an extension till 10.10.95. A further extension wassought and his services were extended till 10.4.96. The petitioner’s request for afurther extension was refused.
Held:
The general rules of mandamus is that its function is to compel a PublicAuthority to do its duty. It is a command issued by a Superior Court for theperformance of a public legal duty. It is only granted to compel the performanceof duties of a public nature and not merely of a private character, that is to say forthe enforcement of a mere private right stemming from a contract of the parties.
The petitioner has failed to satisfy this court that he has a statutory right to anextension of services under the respondent.
Per Ranaraja, J.
“On the other hand to accede to the petitioner’s application would mean that the1st respondent will not be entitled to use its discretion under the circulars, torefuse the extension of service of any employee whether conduct has been foundwanting … it would be unjust to foist a unsuitable employee on the respondent forany length of time against its wishes.”
AN APPLICATION for a Writ of Mandamus/Certiorari.
Cases referred to:
Perera v. Municipal Council of Colombo 48 N.L.R. 66.
University Council of Vidyodaya University v. Linus Silva, 66 N.L.R. 505.
Ratnayake v. Perera 1982 2 S.L.R. 451 at 457.
378
Sri Lanka Law Reports
[1997] 2 Sri LR.
Silva v. National Water Supply and Drainage Board [1989] 2 Sri. L.R. 1.
Rodrigo v. Municipal Council, Galle and Another 49 N.L.R. 89.
Wijesinghe v. Mayor of Colombo 50 N.L.R. 87.
Walker Sons Ltd., v. Gunatilleke (70-73-80) 1 Sri. L.R. 231.
Hemasiri Withanachchi for petitioner.
S. Sriskandarajah for respondents.
Cur. adv. vult.
December 04,1996.
DR. RANARAJA, J.
The petitioner is an Engineering Assistant employed by the 1strespondent Ceylon Electricity Board, which is a corporate bodyestablished under the provisions of the Ceylon Electricity Board ActNo. 17 of 1969. The 2nd respondent is the General Manager of the1st respondent. The petitioner had applied for an extension of hisservices upon reaching the age of retirement on 10.10.94. (P14) andwas granted an extension till 10.10.95. By letter P15 he soughtanother extension. The 2nd respondent by letter dated 30.1.96informed the petitioner that his services would be extended only for afurther period of 6 months ending 10.4.96 (P16). By P16 the 2ndrespondent informed the petitioner that he has not shown duecommitment to his duties and it has been reported that the 1strespondent had not received any useful service from the petitionerduring the past. Any further extension of his services was dependantupon improvement in the performance of his duties. The petitioner byletter P21 dated 14.6.96 applied for a further extension from10.10.96. The 2nd respondent by letter P22 dated 28.8.96 informedthe petitioner that his services are extended for a period of sixmonths ending 9.10.96, and would be retired on 10.10.96. TheDeputy General Manager of the 1st respondent by his letter (P23)dated 10.9.96 directed the petitioner to hand over any propertybelonging to the 1st respondent to the Electrical Engineer before hegoes on retirement. The petitioner appealed by letter P24 dated
to the 2nd respondent to extend his services for a furtherperiod of one year from 10.10.96. The petitioner was informed by theElectrical Engineer of the 1st respondent by letter dated 20.9.96(P29) that he would be retired on 10.10.96.
CA Wickramasinghe v. Ceylon Electricity Board and Another (Dr. Ranaraja, J.) 379
The petitioner has filed this application inter alia;
for a writ of certiorari quashing the decisions conveyed byP22 and P23.
for a writ of mandamus directing the respondent (sic) to grantan extension of services of the petitioner from 10.10.96.
The petitioner seeks to support his application on the basis ofcircular P25 dated 29.11.94. By that circular, the Deputy GeneralManager (personnel) of the 1st respondent, has informed the head ofdivisions inter alia, that it has been decided that extensions of serviceof CEB employees from 55 years of age to 58 to be approved withinthe CEB. He states that since he has reached the age of 57, he isentitled to a further extension of service.
The question that arises is whether the petitioner has a statutoryright to an extension of his service which could be enforced bymandamus.
Section 31 of the Ceylon Electricity Board Act as amendedprovides; subject to the provisions of section 5, the Board mayappoint to its staff such officers and servants as the Board may deemnecessary, and determine their terms of remuneration and otherconditions of employment”. By letter P2 dated 14.9.81, the petitionerwas appointed as a Grade II, Class A, Technical Officer (Electrical),middle level officer, subject to the terms and conditions set outtherein. The title of his post was Engineering Assistant.
In Perera v. Municipal Council of Colombo™, Nagalingam, J.followed Short in “Informations, Mandamus and Prohibition", (page227) which lays down a general rule governing the issue of a writ ofmandamus, namely, that “The applicant must have a legal right to theperformance of some duty of a public and not merely of a privatecharacter” and dismissed the application of the petitioner, who wasemployed as a dispensary medical officer under the council, for awrit of mandamus to compel the Local Government Service
380
Sri Lanka Law Reports
[1997] 2 Sri LR.
Commfssion to reinstate him in the post from which he had beeninterdicted and to pay his arrears of salary from the date ofinterdiction till reinstatement.
In a similar case, a university ‘Teacher’ was held by the PrivyCouncil to be in the ordinary legal sense a servant of the universityand certiorari and mandamus did not lie to quash an orderterminating his services and reinstate him. University Council ofVidyodaya University v. Linus Silva™.
The general rule of mandamus is that its function is to compel apublic authority to do its duty. The essence of mandamus is that it is acommand issued by a superior Court for the performance of a publiclegal duty. It is only granted to compel the performance of duties of apublic nature, and not merely of private character, that is to say, forthe enforcement of a mere private right, stemming from a contract ofthe parties. – Ratnayaka v. Perera<3).
“A distinction which needs to be clarified is that between publicduties enforceable by mandamus, which are usually statutory, andduties arising merely from contract. Contractual duties are enforceableas matters of private law by the ordinary contractual remedies, suchas damages, injunction, specific performance and declaration. Theyare not enforceable by mandamus which in the first place is confinedto public duties” (Wade – Administrative Law 5h Ed. pg. 635).
In Silva v. National Water Supply and Drainage Board™, G. P. S. deSilva, J. following the passage from Wade cited above held that thePost of Accountant in the N. W. S. and D. B. is not a public officewhich attracts the remedy of mandamus. If the appointment iscontractual, writ does not lie. See also Rodrigo v. Municipal Council,Galle and Another™, Wijesinghe v. Mayor of Colombo™. In the formercase Windham, J. laid down the test as follows; The question iswhether the petitioner has public duties and powers vested in him bystatute, so that he can be said to be statutorily entitled to exercisethem." This Court is bound by the decisions cited – see Walker SonsLtd. v. Gunatileke(7).
CA Wickramasinghe v. Ceylon Electricity Board and Another (Dr. Ranaraja, J.) 381
The petitioner has failed to satisfy this Court that he has a statutoryright to an extention of services under the 1st respondent for a furtherperiod from 10.10.96. By P2 the petitioner has entered into a privatecontract to serve as an Engineering Assistant according to the termsand conditions in that letter of appointment. It is not an office createdby statute with attendant legal rights to an extention of service till hereaches the age of sixty. He has no legal right to insist on the 1strespondent extending his services on the basis of a right conferredby any statutory provision. Nor is the 1st respondent under astatutory duty to extend the petitioner’s services. Thus his applicationfor relief by way of certiorari and mandamus must fail.
On the other hand to accede to the petitioner’s application wouldmean that the 1st respondent will not be entitled to use its discretionunder circular P25 to refuse the extention of service of any employeewhose conduct has been found wanting. It has been stated clearly inP16 that the petitioner has not shown due diligence in performing hisduties. The petitioner has in his affidavit admitted that he was onceserved with vacation of post notice. He was reinstated after a break inservice after representations being made to the Ombudsman andParliamentary Petitions Committee. It would be unjust to foist anunsuitable employee on the 1st respondent for any length of timeagainst its wishes. The application is refused.
Application, dismissed.