Re Aaron
| Jurisdiction | Guyana |
| Judge | Kennard, C. |
| Judgment Date | 31 March 1998 |
| Neutral Citation | GY 1998 CA 2 |
| Docket Number | Civil Appeal No. 41 of 1997 |
| Court | Court of Appeal (Guyana) |
| Date | 31 March 1998 |
Court of Appeal
Kennard, C., Perry, J.A., Persaud, J.A.
Civil Appeal No. 41 of 1997
B. Gibson for the appellant
Gafar for the respondent
Judicial review - Application for certiorari and mandamus to effect respondent's reinstatement to office of police constable — Applicant convicted of simple larceny and dismissed by his employer as a result — The appellant's appeal against conviction was allowed but his employer refused to reinstate him — Court unable to make an order directing the Commissioner of Police to re-instate the applicant as this might border on the usurpation of the powers of the Commissioner of Police — Appeal dismissed.
The appellant, who was a corporal in the Guyana Police Force, was charged on the 14th April, 1989 for the offence of Simple Larceny, the subject matter being one of Foreign Currency. Six days later on the 20th April, 1989 he was interdicted from duty. He was convicted on the said charge on the 20th April, 1990 by Magistrate Latchman Singh Rai, who has since migrated. On that very date he had lodged an appeal against his conviction and sentence. Despite that appeal he was discharged from the Police Force on the 20th April, 1990 by the Commissioner of Police by a letter dated 28th May, 1992 which states inter alia:
“You are hereby notified that you are discharged from the Guyana Police Force with effect from 20th April, 1990 on the grounds that having regard to the conditions of the Force and its usefulness thereto, your discharge is desirable in the public interest in accordance with Section 35 (1) of the Police Act, Chapter 16:01.”
The appellant's appeal to this court was allowed and his conviction and sentence on the charge of Simple Larceny were set aside on the 21st July, 1995 due to non-availability of the Magistrate's Memorandum of Reasons for Decision (See Alexander v. Williams (1984) 34 W.I.R. 340).
There were no dispute as to the facts set out in the affidavits filed in this matter and it was contended on behalf of the Commissioner of Police, that he was quite justified in discharging the appellant under the provisions of section 35(1) of Police Act, having regard to his conviction on the charge of simple larceny. Additionally, it was contended that the court has no authority to order a re-instatement of the appellant in the Police Force.
In his motion paper the appellant had sought:–
“Orders or Rule Nisi of Certiorari and Mandamus quashing the order dated 28th May, 1992 to remove the appellant from the police force and directing his immediate re-instatement in the police force”.
The appellant had based his case on the contention that the Commissioner of Police had acted unlawfully when he had removed him from the police force without waiting for the legal process to be exhausted.
The trial judge accepted that contention and stated inter alia in his ruling.
“I am of the view that it was not proper for the Commissioner of Police to discharge the appellant from the police force while his appeal against the conviction was pending. I, therefore, grant the order of certiorari as prayed and quashed his dismissal by the Commissioner of Police by letter dated, 28th May, 1992.
The trial judge, had in effect found that the Commissioner of Police had acted in bad faith when he purported to discharge the appellant from the Guyana Police Force. (See Emanuel and Blake v. Attorney General of Guyana Civil Appeals Nos. 60/61 of 1986).
In refusing to grant the order of mandamus the trial judge had stated inter alia:–
“I am of the view that to grant the order of re-instatement would be to compel the employer to take back the employee which the court does not do. In refusing to grant the order for re-instatement, I rely on the case of Chief Constable of North Wales Police v. Evans [1982] 3 All E.R. 577.”
In Evans' case the facts were these:
The respondent was a probationer constable undergoing training with a police force. He received good reports on his progress from his instructors who stated that there was no reason to doubt his becoming a reliable and competent constable. However during his probationary period, certain rumors started concerning his private life. Those rumors were largely unfounded but, following inquiries made by the respondent's superiors, the Chief Constable believed them to be true and decided to dispense with the services of the respondent under reg. 16(1) of the Police Regulations, 1971, which provided for the discharge of a probationer constable if the Chief Constable considered that he (was) not fitted … to perform the duties of his office or that he (was) not likely to become an efficient or well...
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