Evelyn v Chichister
| Jurisdiction | Guyana |
| Judge | Luckhoo, J.,Persaud, J.,Crane, J. |
| Judgment Date | 30 January 1970 |
| Neutral Citation | GY 1970 CA 1 |
| Docket Number | Civil Appeal No. 29 of 1969 |
| Court | Court of Appeal (Guyana) |
| Date | 30 January 1970 |
Court of Appeal
Luckhoo, C., Persaud J.A. and Crane J.A.
Civil Appeal No. 29 of 1969
M. Shahabuddeen, Q.C., Solicitor General, Eric Beharry with him, for the appellant.
B.E. Gibson for the respondent.
Administrative Law - Public Servant — Dismissal
The Transport and Harbours Department is a governmental concern created and regulated mainly by the provisions of the Transport and Harbours Ordinance, Cap. 261 and other subsidiary provisions. It was established for the purpose of managing and carrying on the railways and Government vessels and regulating the use of the harbours of the country.
The respondent, a deck hand employed on one of the vessels of this department, was by letter dated 25 th November 1968, dismissed by the appellant, the General Manager of that department, and debarred from obtaining any further employment therein. In consequence, the court was moved by certiorari proceedings to have this record of dismissal quashed and set aside on the ground that it was made contrary to law and offended certain legal principles. The application was successful and the appellant now seeks a reversal of the order made by Chung, J., that the record of the dismissal be quashed, that the order nisi be made absolute and that the appellant do pay the sum of $200 as costs.
The arguments before this Court mainly embrace two aspects. The first was that the dismissal was in conformity with legal requirements or at least was sustainable because the General Manager could have exercised the right which the Crown has to dismiss at pleasure. The second line of argument was that even if it could be said that in the circumstances of the case the respondent was not properly dismissed, yet the decision of the General Manager in the exercise of his powers of discipline under the Constitution could not be questioned in a court of law.
I propose to test the validity of the dismissal from two standpoints. Firstly, was it effective having due regard to what was procedurally prescribed under the law? And, secondly, could there have been a dismissal at pleasure by the appellant, assuming the respondent was a public officer, who was subject to the right of the Crown to be dismissed at will? In considering the first question, it will be necessary to look at the appellant's powers of dismissal and how it was exercised in the circumstances of the case. Under Ordinance No. 26 of 1946 (which appears in the first schedule to Cap. 261) certain additional powers, duties and functions were given to the General Manager, viz.:
“to appoint persons as employees… and to dismiss persons so appointed, etc., etc.”.
But these powers were to be “subject to such Departmental Orders as may from time to time be made by the Governor” and he was further required to perform “any other power, function and duty which may from time to time be assigned by the Governor to the General Manager by notice published in the Gazette”.
The first set of Departmental Orders of which the appellant was bound to take cognizance under the aforesaid statutory requirements came into being on the 8 th of March 1945, when the then Governor decreed certain orders which were, inter alia to govern proceedings concerned with discipline. Under these Orders (put briefly) it was necessary to have an investigation when an employee was charged with misconduct and he had the right to know “the whole case made against him” and to have “an adequate opportunity throughout of making his defense”; with the specific provision “that the nature and particulars of the case” made against him shall be “communicated to him in waiting”. (See Departmental Orders 1945, Cap. 2, Orders 2, 3, 4 and 5.)
In the instant case what was communicated of the charge of misconduct consisted only of the following, viz.:
“That on Thursday, 25 th July 1968, at approximately 2300 hours whilst being a member of the crew of the S.S. “Lady Berbice” en route for Pomeroon River —
(a) You used indecent language in the presence of passengers which included a Sister of Mercy.
(b) Behaving disorderly in the presence of passengers and being abusive to Sister Carmen Sita of the Convent of Mercy who was a passenger.
(c) Threatening Mr. Clarke during an investigation by the Master of the vessel due to complaints received against you.”
It could be seen from the above that whilst the respondent was made aware of the nature of the charges against him, he was only supplied with limited particulars. And other particulars which were vital and essential to enable him to answer the charges properly, were conspicuously absent. For example, under (a) the respondent was not told what words he used which, were construed to be “indecent language”, If he were he would not only have had the opportunity of specifically disputing the use of those words, but the further opportunity of raising the further issue that those words were not of an indecent nature and should not be so construed. Again under (b) he was not told in what way it was alleged that he behaved “disorderly”; neither was he told in what way he was “abusive to Sister Carmen Sita of the Convent of Mercy who was a passenger”. And under (c) he was not told in what way he threatened Mr. Clarke during an investigation by the Master of the vessel due to complaints received against him. The failure to state what it was alleged constituted the “offences” charged was not in compliance with the provisions that “the employee shall be entitled to know the whole case made against him” and to have communicated to him “the nature and the particulars of the case made against (him) the employee”.
The respondent under those circumstances could well have said in reply: “You have asked me to answer in writing certain charges made against me but I insist on first having further and better particulars of the charges which would indicate in what way and circumstances I committed the offences alleged, before I could properly be called upon for an answer to any accusation.”
On the Charge-sheet sent to the respondent on the 3 rd of September 1968, which contained the charges set out as above, he was required to submit in writing “below” on that Charge-sheet not later than 4 p.m. on 5 th September 1968, any defense which he may desire to make and this intimation was signed by —
“Geo Thompson
Head of Sub-department”.
It should be noted that on that Charge-sheet certain printed matter appears obviously intended to indicate the procedure which should prevail for the guidance of employee and head of any sub-department. It is as follows:–
“If any employee is deemed by the Head of any Sub-department to have been guilty of misconduct, all evidence should be collected by the Head of that Sub-department, who shall then charge the employee on this Charge-sheet anal shall call upon him to give defense in writing to the charge within a stated period. All evidence in waiting should be submitted to the employee and these papers must be returned to the Head of the Sub-department within the specified date.
2 Any refusal to submit a defense to the charge or failure to return the papers must be considered by the Head of the Sub-department as a refusal of duty on the part of the employee and immediately reported to the General Manager.
3 If it is deemed necessary, the Head of the Sub-department may hold an oral enquiry but such an enquiry cannot be demanded by the employee. The employee mar be present at any such enquiry, and may hear and question all witnesses.
4 After the written and/or oral defense has been submitted, it will be the duty of the Head of the Sub-department to review the case and submit to the General Manager definite recommendations as to disciplinary action and the Charge-sheet must not be submitted without such recommendations.”
But the respondents contrary to what is there recognized, did not have the benefit of evidence which constituted the gravamen of the charges against him. Could it be said then that when on that sheet the respondent gave his defense as follows:–
“I am innocent of the charges and I reserve my defense for any enquiry which the General Manager may hold”,
he did not answer the charges? For it was on that defense that Mr. Thompson, as Sub-head, proceeded to make this comment on the Charge-sheet:–
“The reply on the charge-sheet is unsatisfactory since the charges were not answered.”
and went on to make the recommendation “that he be dismissed”. Whereupon the General Manager accepted this recommendation and noted on the said sheet under the caption “The decision by General Manager” —
“DISMISSAL
J.E.
General Manager
16.11.66.”
There are other Departmental Orders made after the year 1945, and those made in 1961 would be of special relevance to the circumstances of the instant case. But inasmuch as the 1945 Orders were in all probability used to decide the respondent's ‘dismissal’, I shall first examine the question: Could his dismissal have been validly made under and by virtue of the 1945 Orders?
It is natural that anyone with any sense of what is just would wish to give to another against whom an accusation is being made the opportunity of being heard in his defense before proceeding to condemn him. The exact procedure to be employed would vary according to individual concepts; but sometimes, apart from principles which exist at Common Law, the written law decrees the form of procedure which should be adopted before someone is penalized departmentally for misconduct in the course of duties. Such rules are usually designed to ensure that the essentials of justice are not disregarded; and that a fair opportunity is given for parties to the controversy to be heard, so that when a decision is reached it could be said that the act of adjudication was as just as the means employed to judge.
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