Re Gerriah Sarran
| Jurisdiction | Guyana |
| Judge | Mitchell, J. |
| Judgment Date | 31 August 1971 |
| Neutral Citation | GY 1971 HC 31 |
| Docket Number | 3088 of 1968 |
| Court | High Court (Guyana) |
| Date | 31 August 1971 |
High Court
Mitchell, J.
3088 of 1968
B.E. Gibson for applicant.
Dr. M. Shahabuddeen, S.C. Solicitor-General, C, Beharry with him for respondents.
Administrative Law - Public servant — Dismissal.
This, is an application by Gerriah Sarran for an order or rule calling upon the Permanent Secretary of the Ministry of Health to show cause why a writ of Certiorari should not be issued to remove into this Honourable Court the inquiry held in respect of a charge against the applicant for the purpose of its being quashed.
The facts which are alleged in support of the application are set out in the affidavit which the applicant filed in support of the application by way of motion, together with four (4) letters.
The affidavit filed by the applicant in support of the application disclosed that Gerriah Sarran was a maid attached to the public Hospital, Georgetown at a salary of $1,014.00 per annum, and that on 18th January, 1968, a charge was laid against her by the Permanent Secretary of the Ministry of Health to the effect that on 20th July, 1967, while she was still a maid attached to the Georgetown hospital, she was under the influence of alcohol while on duty, to such an extent, as to be incapable of performing her duties, to the prejudice of discipline and the proper administration of the service. She replied to the charge made by the Permanent Secretary and on 9th March, 1968, she was informed by latter from the Assistant Secretary, Ministry of Health that he hack been appointed by the Permanent Secretary to hold an enquiry into the charge against her.
In her application, Gerriah Sarran contended that the Permanent Secretary of the Ministry of Health could not hold an inquiry into disciplinary charges against her unless ha was authorised to do so by the Public Service Commission under Article 96(2) of the Constitution of Guyana, and that even if the Permanent Secretary of the Ministry of Health was authorised by the Public Service Commission to hold the said enquiry, he could not further delegate his authority to hold the said. enquiry to the Assistant Secretary Mr. Charles Byass. The applicant further contended that the said Assistant Secretary, Mr. Charles Byass by virtue of his executive position was sufficiently interested in the matter against her as not to have been appointed Convenor of the inquiry, that the Permanent Secretary to the Ministry of Health could not remove her from the Public Service in view of Article 96 of the Constitution of Guyana, that sinew the procedure as set out in Article 96 of the Constitution of Guyana was not followed the enquiry was void and should be set aside for excess of jurisdiction.
An order nisi was made calling upon the Permanent Secretary, Ministry of Health, to show cause why a writ of certiorari should not be issued to remove into the Nigh Court of the Supreme Court of Judicature, the enquiry held in respect of a charge against the applicant for being under the influence of alcohol while on duty as a maid at the Georgetown Hospital, for the purpose of quashing the entire proceedings.
The Permanent Secretary of the Ministry of Health filed an affidavit, in answer setting out the basis on which it was thought that cause would be shown why an order absolute should not be made and attached other relevant documents to that affidavit.
When the matter came up for actual hearing counsel for the Permanent Secretary, Ministry of Health, in the person of the Solicitor-General of Guyana, argued inter alia that the Permanent Secretary as such was not an entity that could have been sued. In support of his contention he referred to Abrams v. The Members of the Government Body of Anglican Schools in British Guiana (1960) L.R.B.G. 78; (1960) 2 W.I.R. 187. Counsel for the Permanent Secretary, also contended that Certiorari was always issued to quash some order, judgment or decision and in this ease the writ was sought to quash the record of a committee of enquiry and that if that record was quashed the decision to dismiss would not be affected since that decision was taken by the Permanent Secretary and not by the Committee of enquiry. reference was made to Clarke v. Vieira 1960 L.R.B.G. 201 as suggesting that certiorari will issue only whore there is a formal order. Counsel indicated that even if that was too narrow a view there was no authority for suggesting that a writ will extend to quash a record of a committee of enquiry where, as in this case, such record did not disclose any decision whatsoever.
Counsel for the Permanent Secretary also, argued that the Permanent Secretary had jurisdiction to dismiss and referred to the Instrument Delegating the Governors Public Service Powers, dated 3rd April, 1962, and section 12(1) of the Guyana Independence Order, 1966.
In so far as the applicant contended that there was a delegation of authority by the Permanent Secretary, counsel for the Permanent Secretary contended that mere investigation of facts by another official did not involve a sub-delegation of disciplinary authority. He referred to De Smiths “Judicial Review of Administrative Action,” second edition at pages 206 and 208, He, also, referred to the cases of Osgood v. Nelson (1872) L.R. 5 H.L. 636, 645; Barnard v. National Dock Labour Board (1953) 2. Q.B.D. 18, 39, and Vine v. National Dock Labour Board [1957] A.C. 499, 501, 512 and argued that those cases were distinguishable from the present one because in those cases the bodies vested. with the jurisdiction to dismiss never in fact considered the matter and never acted, the entire exercise being conducted by unauthorised bodies. He added that the courts ought to take note as to bow government business is carried on and that Parliament legislates on that basis.
Counsel for the Permanent Secretary of the Ministry of Health also, said that the applicant's affidavit in support of her application showed that she was a public officer within the meaning of Article 96 of the Constitution of Guyana. All public officers, he further stated, served at pleasure and referred to Cumberbatch v. Weber (1965) 9. W.I.R. 143 and The Attorney General v. Nobrega (1966) 10 W.I.R. 187, C.C.A. [1969]. 3 All E.R. 1604 P.C. adding that all appointments in the public service are made at pleasure and that it did not matter what the governmental agency was, once the appointment was made on behalf of the state.
Counsel for the Permanent Secretary advanced the proposition that an officer who was serving at pleasure was not entitled to a hearing before dismissal. He thought that this principle was re-affirmed in Lime v. Baldwin [1963] 2 All E.R. at pages 71 and 72. He, also referred to the cases R. v. Darlington School Governors (1844) 6 Q.B… 682, 684, 694–696, 698 700–702 710, 716–717; Ryder v. Foley (1900) 4 C.L.R. 424, 425 427, 436; Hogg v. Scott [1947] 1 All E.R. 788Cumberbatch v. Weber (1965) 9 W.I.R. 143 and to the 67 Corpus Juris Secundum 255. The only exception he thought was where statute otherwise required.
The employment of an officer who was serving at pleasure is effectively terminated when he is dismissed by a person who has authority to dismiss him. That, also, was the contention of counsel for the Permanent Secretary of the Ministry of health. lie referred to Ryder v. Foley (1906) 4 C.L.R. 436, Fletcher v. Nott (1938) 60 C.L.R. 67 69; Rodwell v. Thomas [1944] 1 All E.R. 704; Barber v. Manchester Hospital Board [1958] 1 All E.R. 322, 331 – 332; Vine v. National Dock Labour Board [1957] A.C. 500, 507 – 508.
He argued, also, that the dismissal of an officer serving at pleasure without a previous hearing is valid, Certiorari cannot issue in such a case since the writ goes to the validity of an order. He said that there was no known instance in which certiorari has been issued in such a case, tie cited. the case of Vidyodha University v. Silva [1964] 3 All E.R, 865, P.C. at page 873 G-H, which involved the relationship of master and servant, as a case in which certiorari was refused.
The appointment of the applicant as a ward-maid cannot be treated as property so as to attract a right to a hearing. He referred to 67 Corpus Juris Seeundum, 117 H 8, 196–197; 16A. Corpus Juris Secundum, 705; 2 Basu, Commentary on the Constitution of India, 4th edn. p.206; Seervai, Constitutional Law of India, p.545 para. 15, 48; Bailey v. Richardson 182 F 2 d 46, Franck, Comparative Constitutional Process 1968 p.284; Leeson v. G.M.C. (1889) 43 Ch. D. 366; Ryder v. Foley (1906) 4 C.L.R. 422, 427; Bernard v. N.D. L.B. [1953] 2 Q.B. 18; Vine v. N.D. L.B. [1957] A.C. 500; Barber v. Manchester Hospital Board [1958] 1 All E.R. 322 331.
Counsel for the Permanent Secretary of the Ministry of Health in the course of his arguments referred to the decision of the Guyana Court of Appeal in Evelyn v. Chichester on 30th January, 1970.
This was an appeal from an order absolute made by a judge (Chung, J. as he then was) in certiorari proceedings, Commenting on that case he said that Luckhoo, C. assumed, while Persaud, J.A., and Crane, J.A., accepted, that the department of the Transport and Harbours Department was a department of the Government of Guyana and that the respondent Chichester a deck-hand employed by that department was a public officer. They agreed then, he said that generally public officers held office at the pleasure of the Crown, and that the General Manager's power of dismissal in, that case was not a power to dismiss at pleasure, being exercisable, in their view, only in accordance with the prescribed disciplinary procedure. He thought that the question arose in this case as to whether the decision of the Court of Appeal was right and the answer to that depended on what validity would be assigned to the following two propositions:
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(1) Gerriah Sarran, a servant of the State, was...
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