Public Service Commission Appellants Permanent Secret Ry, Ministry of Tr De, Industry & Commerce v Charles Edward Hunte Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: ST. BERNARD.C.J. (Ag)
• Judgment Date: 02 March 1976
• Judgment citation (vLex): [1976] ECSC J0302-1
• Docket Number: CIVIL APPEAL NO. 1 of 1975
• Date: 02 March 1976

[1976] ECSC J0302-1

IN THE CORT OF APPEAL

CIVIL APPEAL NO. 1 of 1975

Between:

Public Service Commission

Appellants

and

Permanent Secret Ry, Ministry of Tr De, Industry & Commerce

and

Charles Edward Hunte

Respondent

Appearances:

Sydney Christian and C.A. Roberts with him for Appellants

Cosmos Phillips, Q.C. & Vere Bird Jun. for respondents

ST. BERNARD.C.J. (Ag)

1 The respondent, a civil servant, was interdicted on the 11th August, 1972, under paragraph 5 of the second schedule to the Public Service Commission Regulations, 1967. Later, disciplinary charges were laid against him and, after a trial which was not attended by the respondent, he was dismissed from the civil service with effect from the 31st August, 1972. The respondent, being dissatisfied with his dismissal contested its validity in the High Court on eight grounds, and was successful in respect of six of those grounds. Five of those grounds dealt with the validity of the trial by the Commission. While grounds 1 and 2 were contested on the basis that the whole proceedings were irregular from its inception. The trial judge found in favour of the appellant in regard to ground 1 and held that the investigation which was to be carried out under paragraph 9 (1) of the Public Service Commission Regulations was a condition precedent to the institution of any disciplinary charges against the respondent, and therefore the whole proceedings were null and void. This appeal is in respect of this ground only. There is also a cross appeal in respect of the two grounds in which the respondent was unsuccessful in the High Court. One of those grounds was abandoned at the hearing of this appeal. The other ground was to the effect that the request of the Permanent Secretary to the Chief Establishment officer to institute disciplinary proceedings was made on the instructions of the Minister of Trade, Industry and Commerce.

2 The two issues, therefore, for determination in this appeal are—(a) is the investigation contemplated by regulation 9 (1) a condition precedent to the institution of disciplinary proceedings? and (b) did the trial judge make a proper evaluation of the facts when he held that they were insufficient to conclude that the institution of proceedings against the respondent was at the dictation of the Minister?

3 The relevant part of regulation 9 (1) reads as follows:—

"Whenever a Permanent Secretary considers it necessary to institute proceedings against a pensionable public officer whose salary exceeds the rate of $2,000 per annum and who is serving in a department under his supervision on the ground of misconduct which if proved would justify his dismissal from the public service, he shall cause such preliminary investigation to be made, and shall after considering the results of his investigation consult with the Chief Establishment Officer who:—

• (a)……………….

• (b)………………."

4 An examination of this regulation shows that it contains some error and on this point both counsel have agreed but differ in regard to what may be omitted or inserted so as to make sense out of it. Counsel for the appellant submitted that the word "such" before the word "preliminary" is the root of the problem. He suggested that he word "such" should remain but the words "as he considers necessary" should be inserted after the word "investigation." This he contended would make sense and would bring the reading of the regulation in line with regulation 10(1) of the same Regulations since both regulations contemplate the same type of investigation by the same officer before consultation with the Chief Establishment Officer and before any disciplinary proceedings were instituted. He stated that he was fortified in this view by the fact that the corresponding regulation in the Dominica Public Service Commission Regulations (1973) No. 24 was identical with the one under consideration save that the words "as he considers necessary" were inserted after the word "investigation" and for the word "his" before the word "preliminary" in the penultimate line was the word "the". He urged the court to accept this...