SJCS teacher vs NNP Government

Lawyers representing the State and a female secondary school teachers are getting ready for a brutal legal battle within the next few weeks on the right of the Keith Mitchell-led ruling New National Party (NNP) to dock the salaries of striking public officers.

The school teacher is being represented by attorney-at-law, Cajeton Hood, the former Attorney-General under the 2013-18 Mitchell government and Guyanese Darshan Ramdhani who currently occupies the chair as Principal Legal advisor to the same administration.

THE NEW TODAY understands that the two legal teams will focus their arguments before the sitting high court judge on two cases that featured prominently in the London-based Privy Council and the Eastern Caribbean Supreme Court.

Hood is expected to rely heavily on a case dating back to the late 1990’s that came out of Dominica which was brought by a civil servant, Rosemond John, a teacher by profession, against the Permanent Secretary in the Ministry of Education.

The high court judge ruled in 1997 in favour of the Permanent Secretary to make the deductions from her salary following strike action but one year later the Court of Appeal over-turned the decision in favour of John in a historic and landmark decision.

Court of Appeal Justice Albert Redhead who delivered the judgmenet said that the decision reached by his court has implications for all other member territories of the sub-regional grouping known as the Organisation of Eastern Caribbean States (OECS) with similar constitutions like that of Dominica.

While Hood would be relying on this case, the current AG Darshan Ramdhani would counter attack with a more recent ruling by the Privy Council in a Jamaica case styled Sykes vs Ministry of National Security which gave a much different interpretation to that of Redhead decision.

Legal sources in Grenada have told THE NEW TODAY that the Redhead case is more applicable and relevant to the current situation with the Convent Teacher who is claiming that she did not strike but was actually in the classroom when her salary was docked by government.

Last week, this newspaper carried Part 1 of the landmark decision of retired Court of Appeal Justice, Albert Redhead and brings Part 11 this week.

General Order 3.27 should therefore in its modified form read absence from duties because of participation in strike or any industrial action is a misconduct. Any punishment consequent upon misconduct under General Order 3.27 is not mandatory. The discretion of the Public Service Commission to choose another punishment described in regulation 34 of the Public Service Commission Regulation is not fettered.

I deal with both matters together i.e whether the appellant is the holder of an office and that her salary was a reward for that office and consequently whether the deduction of the appellant’s pay was a deprivation of property contrary to S.6 of the Dominica Constitution.

S.6 states inter alia as follows:

“No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where provision is made by a law applicable to that taking of possession or acquisition for the payment, within a reasonable time of adequate compensation”.

It is now beyond dispute that money is, for the purpose of this section, to be regarded as property, and that there is a proprietary right in salaries and wages.

The contention of the appellant is that the deduction of pay amounted to a deprivation of property in that the appellant as holder of an office in the public service was entitled to receive emoluments attached to that office.

The short response of the Respondent to this contention is that the appellant by going on strike disentitled herself to receiving pay for that period. Therefore, she can have no right over or interest in that sum of money, which would but for the strike action have been her pay.

Therefore, since no right to pay accrued during the days the appellant went on strike, she had no property during that period and therefore could not be deprived of property contrary to Section 6 of the Constitution, according to the argument of the Respondent.

In Gladwyn King v Attorney-General of Barbados [1994] 1 WLR 1560 the appellant was appointed in 1981 to the office of clerical officer in the Ministry of Education in Barbados, an appointment established under S.2 of Civil Establishment Act 1948 by the Civil Service

Establishment [General] Order 1990 which fixed the remuneration for the post.

In 1991 enactment of the Public Service Reduction of Emoluments Act l991 resulted in her salary being reduced by 8 percent for the period 1st October, l991 to 31st March, l993. The appellant brought proceedings against the Attorney-General of Barbados for, inter alia, a declaration that the Act of l991 in depriving her of her right to be paid not less than the emoluments attached to her office by the order of l990 contravened Sections 11 and 16 of the Constitution of Barbados.

The judge dismissed her claim and her appeal was dismissed by the Barbados Court of Appeal. On appeal to the Judicial Committee, it was held inter alia that the appellant’s only right was to such emoluments as the Minister under the Civil Establishment Act l948 or as Parliament in exercise of its legislative powers as attached to her office, and that since the appellant had no right to a minimum salary she had no property protected by Sections 11 and 16 of the Constitution.

I interpret the judgment to be saying that the appellant does have emoluments attached to her office but only those stipulated by the Minister acting under the Authority of the Civil Establishment Act l948 or by Parliament.

I also interpret the judgment to be saying that if the appellant was entitled a minimum salary then she had property protected.

The contention that the appellant is the holder of an office is supported by:-

In Abeywickerma v Pathirana and others 1987 LRC [Const.] 999

At para. 1012 Sharvananda C.J. said:

“Employment generally is a contract between parties and therefore the general rule is that the contract cannot be unilaterally changed by any party to the contract. The position is different in government employment in which government derives its powers from the Constitution to make rules laying down the conditions of service. By virtue of such power the government can prescribe the conditions of service without any reference to employees. It is only the origin of government service, which is contractual. Once appointed, the public officer acquires a status; thereafter his relations are governed by status and not by contract.

“The legal position of a government servant is one of status than of contract and his rights and obligations are no longer determined by consent of both parties, but by rules which are framed and altered unilaterally by the State”.

The hallmark of the status is the attachment to the legal relationship of rights and duties imposed by public law and not by agreement of the parties.

In Dinesha Chandra v State of Assam & ors. 1978 S.C.R. 608 Where at page 612 Goswami J said:-

“It is well settled that except in the case of a person who has been appointed under a written contract employment under the Government is a matter of status and not of contract even though it may be said to have started, initially, by a contract in the sense that the offer of appointment is accepted by the employer”.




In light of the authorities I have little hesitation in coming to the view that the Appellant is the holder of an office in the Public Service and is entitled to receive emoluments attached to that office.
She can only be denied those emoluments, or any part of those emoluments, by the Public Service Commission when so lawfully sanctioned i.e. not unconstitutional, for a breach of discipline under the Public Service Commission Regulations.

However, this is not the case here. The deduction of the appellant’s pay in the circumstances constituted a deprivation of property.

Having regard to the foregoing the appeal is allowed. The judgment of the learned trial judge is set aside.

It is hereby declared as follows:

(1). That the decision of the Permanent Secretary, Ministry of Education, contained in a letter dated 30th October, l996 that deductions would be made from the Appellant’s salary is unlawful, unconstitutional, null and void.

(2). That the deduction made from the Appellant’s salary consequent upon the letter of 30th October, l996 is unconstitutional, unlawful, null and void and that the said amounts be refunded to the Appellant.

(3). General Order 3.27 in its present form is unconstitutional.

(4). Costs to the Appellant to be taxed if not agreed.

ALBERT J. REDHEAD

Justice of Appeal

I Concur SATROHAN SINGH

Justice of Appeal

MATTHEW J.A. [Ag.]

I have read the judgment of Redhead J.A. and I agree with the conclusion he reached. I wish only to state that in my judgment, of the Appellant’s four grounds of appeal the only one which I find favour with is the second, namely : that the High Court erred in not finding that the Permanent Secretary in deducting the Appellant’s pay was exercising a disciplinary power.

The Appellant had approached the High Court by virtue of Section 103 of the Constitution of the Commonwealth of Dominica because she was alleging that a provision of the Constitution, other than a provision of Chapter 1 thereof, had been contravened and she had a relevant interest in the matter.

Indeed the particular provision of the Constitution she was referring to was Section 85 and she was alleging that under that Section the power to exercise disciplinary control over her vested in the Public Service Commission and therefore the Permanent Secretary had no authority to deduct pay from her salary.

Of course part of her contention is that the Permanent Secretary did exercise disciplinary power. The learned trial Judge addressed this matter when he posed the question: “Is this (the deduction of the pay for the remuneration due for the month of November) a disciplinary matter so as to involve Section 85 of the Constitution?”

Thereafter he referred to General Orders 3.27 and 3.4 and held that as the Permanent Secretary had invoked General Order 3.27 as opposed to General Order 3.4 the matter was an industrial and not a disciplinary matter.

Those paragraphs are as follows:

“Salaries and wages of officers and employees who go on strike will not be paid for any day or portion of a day during which they are on strike. Thus if an officer or employee merely reports for work on any day of a strike but does not work for the day, he will not receive pay in respect of that day; if he works only for part of any day of a strike he will not be paid for that period of the day during which his services were withheld”.

*An officer who absents himself from duty without permission, except in the case of illness or other unavoidable circumstances, shall render himself liable to disciplinary action.

And Section 11 of the Public Service Act states- “A public officer who, without reasonable excuse, does an act which:

[a] amounts to failure to perform in a proper manner any duty imposed upon him;

[b] contravenes any of the provisions of this Act or any Regulations made thereunder;

[c] is prejudicial to the efficient conduct of the Public Service or tend to bring the Public Service into disrepute, is liable to disciplinary proceedings for misconduct in accordance with the provisions of the Public Service Commission regulation in respect of that misconduct”.

I regret not being able to agree with the learned trial Judge that the Permanent Secretary’s choice of the General Order under which to proceed determines the nature of the action.

In my judgment the Permanent Secretary exercised a disciplinary financial power over the Appellant and the Constitution forbids him to do so, leaving discipline to be exercised by the Public Service Commission unless it chooses to delegate its power as authorised by subsection [2] of Section 85 of the Constitution.

It may be pertinent here to mention the rationale for the Public Service Commission. In Thomas v Attorney General for Trinidad and Tobago referred to above, Lord Diplock giving the opinion of the Privy Council on this matter at page 124 said:

“The whole purpose of Chapter VIII of the Constitution which bears the rubric “The Public Service” is to insulate members of the civil service, the teaching service and the police service ….. from political influence exercised directly upon them by the government of the day. The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service”.

For these reasons I would allow the appeal with costs to the Appellant to be agreed or taxed.

A.N.J. MATTHEW
Justice of Appeal [Ag.]

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