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SURIYAWANSA v. THE LOCAL GOVERNMENT SERVICE COMMISSION et al.
NLR48V433
1947 Present:
Canekeratne J.
SURIYAWANSA, Petitioner, and THE LOCAL GOVERNMENT
SERVICE COMMISSION et el, Respondents.
S C 283-Application for Writs of Certiorari and Mandamus on the
Local Government Service Commission and 3 others
Certiorari--Local Government
Service Commission-Inquiry into charge against Medical Officer-Dismissal of
officer-Administrative or judicial act-Master and servant-When writ will lie,
Where" the Local Government Service Commission after inquiry into
allegations concerning the conduct of a Medical Officer decided to dismiss him,-
Held, on a application to quash the proceedings by certiorari, that the
Commission and the Medical Officer were in the relation of master and servant
towards each other and that the act of the Commission was of an administrative
and not of a judicial character. A writ of certiorari would not therefore lie.
APPLICATION
for writs of certiorari and mandamus on
the Local ii Government Service Commission and three others.
E F N Gratiaen K.C. (with him D. W. Fernando), for the first
respondent -The petitioner who was in the service of the Municipal Council of
Kandy became a member of the service of the first respondent horn April 1, 1946,
by virtue of Ordinance No. 43 of 1945, After an inquiry by three out of the four
members of the Local Government Service Commission in the presence of the
applicant and his lawyers and on the report made by these three members the
Commission came to a unanimous decision that the applicant should be dismissed
and in-formed the petitioner of that decision. It is that order and decision
that is challenged m these proceedings.
Under the circumstances the preliminary question arises whether certiorari or
mandamus would lie at all in respect of the decision and order of the first
respondent.
The decision of the first respondent to dismiss the petitioner their servant is
purely an administrative and not a judicial act. No certiorari would, therefore,
lie to quash such a decision.
Mandamus. does not lie, firstly, because the petitioner had no right to the
performance of a public as distinct from a private duty by the first respondent
and secondly, because the petitioner has another remedy, ie ordinary civil
action for wrongful dismissal, if the dismissal is wrongful) See Perera v
Municipal Council of Colombo 1. The Local Government Service
Commission is an incorporated body and can. be sued. Vide section 58A of
Ordinance No. 56 of 1946. An action certainly lies against a public incorporated
body if such corporation acts dishonestly, corruptly, with improper motives, or
acts outside the authority or power given by the Statute which created he
corporation. See case repored in (1945) Hi L. J. K. B 6 See also Short v. Poole
Corporation 2, Fernel and other1? v East Bam County Borough 3;
In He Mirams 4; Brown v. Dagenham Urban Council 5.
1 (1947) 48 N. L. R 66.
2 (1926)95 L.J Ch. 110 at 113 and 116.
3 (1926) 95 L. J., Ch. 119.
4 (1891) 60 L. J., Q. R. 397 at 398.
5 (1929)98 L.J. K.B.565.
H. V. Perera K. C (with him
U. A Jayasundere and H. W. Jayewardene J for the petitioner--Mandamus in this
case is only asked for as ancillary to the writ certiorari if the decision and
order of the First respondent is quashed Perera v Muncipal Council of Colombo
(supra) does not apply as the fact in that case were totally different. The
cases cited dealt with administrative acts only But, for a dismissal under
Odrinance No 43 of 1945 a finding of a judicial character is necessary In this
connection there are three classes of cases in respect of dismissals of servants
by their employers (1) A private person dismissing his servant is bound, solely
by The terms of the contract of employment and by nothing else (2) There are
public bodies employing servants to whom an absolute or despotic power of
dismissal is given. In this class of cases the power to dismis
