Public Service Commission et Al v Davis et Al
| Jurisdiction | Antigua and Barbuda |
| Judge | Robotham, J.A.,Robotham, J.,Berridge, C.J.,Byron, J. |
| Judgment Date | 19 March 1984 |
| Neutral Citation | AG 1984 CA 1 |
| Docket Number | Civil Appeal No. 6 of 1981 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Date | 19 March 1984 |
Court of Appeal
Berridge, C.J. (Acting); Robotham, J.; Byron, J. (Acting)
Civil Appeal No. 6 of 1981
Cosmos Phillips, Q.C. and Steadroy Benjamin for the appellants
Sydney Christian for the respondents
Administrative law - Public Service Commission — Dismissal of Public Officer — Public Authorities Protection Act — Whether the commission was entitled to protection from the Act
Administrative law - Public Service Commission — Wrongful dismissal of Public Officer — Ouster Clause — Whether courts can enquire into actions of Public Service Commission
Facts: Evidence revealed that the respondents were facing a criminal charge and before this case was tried they received a letter of dismissal from the Commission
Facts: Evidence revealed that the respondents were dismissed by the Commission. No enquiry was ever held
Held: This breached the Public Service Commission Regulations (No. 13 of 1967) which provided that disciplinary action in the circumstances could only be initiated after the criminal proceedings were completed — The Commission in dismissing the respondents therefore acted outside its jurisdiction — The Commission could only benefit from the Act when it acted within its jurisdiction — The Commission was not entitled to protection from the Act. — Appeal dismissed.
Held: The disciplinary procedures for dealing with the respondents are outlined in the Constitution. The Commission breached these provisions and therefore went outside its jurisdiction. The decision of the Commission was therefore a nullity.
The above-named respondents were in 1978 teachers in the permanent employment of the Public Service of Antigua. As such they were public officers who fell under the jurisdiction and control of the Public Service Commission for Antigua, established by virtue of section 82 of the Antigua Constitution Order 1967, which is the relevant instrument for the purposes of this appeal.
The appointment and control of public officers is governed by section 83(1), which reads: –
“Subject to the provisions of this constitution power to appoint persons to hold or act in public offices (including power to make appointments on promotion and transfer and to confirm appointments) and to remove and exercise disciplinary control over persons holding or acting in such offices, shall vest in the Public Service Commission.”
In June 1978, there was a teachers’ strike, which resulted in the respondents Carrott, Clarke and Joseph being arrested on June 7, and charged with criminal offences arising out of the strike. They were interdicted from duty the following day.
On December 13, Moulton and Davis were also arrested and charged. The sixth respondent, Juno Samuel, was never arrested or charged.
On January 1, 1979, whilst all the criminal charges which had been preferred were still pending, some being before the Magistrate, and some before the Court of Appeal, the respondents each received a letter which stated as follows: –
“1st January 1979
Dear Sir
I am directed to inform you that the Public Service Commission, acting in accordance with the provisions of section 16 of the Statutory Rules and Orders No. 13 of 1967 has decided that you be retired from the Service, in the public interest with effect from 1st January 1979.
2. A further communication will be addressed to you with regard to any benefits to which you may be entitled.
Yours faithfully
Ag. Chief Establishment Officer”
Before this court and in the court below, there was no dispute that;
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(1) No disciplinary charges were preferred against any of the respondents
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(2) No enquiry was held
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(3) They were never given an opportunity to be heard in their defence
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(4) No attempt was made to follow any of the procedural steps regulating the manner of dealing with acts of misconduct of public officers as set out in the Second schedule of the Public Service Commission Regulations No. 13 of 1967
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(5) The criminal charges against all with the exception of Juno Samuel were still pending.
Under Section 2 of the Public Service Commission Regulations, such proceedings should have been concluded before any disciplinary proceedings were taken. Against this background, the respondent came by way of originating summonses to the High Court seeking declarations that the decision of the Public Service Commission, contained in the letter from the Chief Establishment Officer dated 1st January 1979 that each plaintiff/respondent be retired from the public service, in the public interest was null, void and of no effect, and that consequently each plaintiff/respondent never legally ceased being a public officer and entitled to the emoluments appertaining thereto immediately prior to 1st January 1979.
Five of these summonses were filed on September 19, 1979, and one on September 24, 1979. All six were therefore filed more than six months from the act of dismissal complained of as set out in the letter of January 1, 1979.
When the matter came before Bishop, J. on April 6, 1981, it was contended on behalf of the appellants that the Public Service Commission not having been declared a corporation sole or aggregate could not sue or be sued, and was not therefore properly before the Court. This submission was rejected by the learned trial judge.
The appellants further submitted before Bishop, J. that the summonses were filed out of time as six months from the act of, dismissal, that is, January 1, 1979, would have expired on July 1, 1979, and that they were therefore entitled to rely on the provisions of section 2(a) of the Public Authorities Protection Act, Cap. 66. This too was rejected by the learned trial Judge. In rejecting both submissions he said:
“The functions of removing and exercising disciplinary control are judicial functions … In the instant case it is agreed that the Public Service Commission held no enquiry whatever, instituted no proceedings for the applicants dismissal that no disciplinary proceedings whatever were held by the Commission or by the Permanent Secretary of the appropriate Ministry or anyone else. The failure to hold any enquiry must of necessity mean that there was no opportunity for displaying or obeying the rules of natural justice, and with respect I do not agree with learned counsel that natural justice does not arise on the facts and circumstances, as a matter to be considered by me.
I think it undisputable that the Public Service Commission considered that each applicant had misconducted himself and that the Commission set out to deal with each of them for misconduct. The disciplinary procedure for dealing with them was laid down under the Constitution of Antigua and it was incumbent upon the Public Service Commission to be governed by those regulations. In acting as they did they went outside the jurisdiction given them, or they lacked jurisdiction to do what they did, in the way that it was done. The Public Service Commission failed to act as directed by the Constitution and so the decision it purported to make in respect of each appellant that he b retired from the public service in the public interest is a nullity… The Public Service Commission failed to exercise its powers of removal and disciplinary control in accordance with natural justice.”
He then went on to say:
“In my view… since the decision was a nullity it is not open to the Public Service Commission to seek the protection of the Public Authorities Protection Act, Cap. 66. “
He granted the declarations sought by each of the respondents with costs, hence these appeals. Counsel for the appellant: argued two grounds of appeal:
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(1) That the learned trial Judge was wrong in holding that the Public Service Commission is a proper party to these proceedings.
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(2) On the assumption that the act of the Public Service Commission was a nullity the learned Judge was wrong in holding that the Commission was deprived of the protection of the Public Authorities Protection Act, Cap. 66.
Dealing with the first ground of appeal, counsel submitted that the Public Service Commission was only an agent of the Crown and is not a legal persona. That being so, it cannot sue or be sued, and where any relief from any action of the Public Service Commission is being sought by way of a declaration, the proper party to be sued should be the Attorney General. In respect of the present matter, he conceded that the Attorney General was properly before the Court and that a judgment against him could be maintained.
Counsel's attention was then focused on the list of authorities which he presented to this court in which Public Service Commission in various territories in the Caribbean were sued under similar circumstances namely:
- R. v. Chairman & Members of the Public Service Commission(1959) 1 W.I.R. 502 (Jamaica/Mandamus) 2. Re application by John Ewart Longhorne(1969) 1 4 W.I. R. 353 (Guyana — Certiorari) 3. Re application by Gerriah Serran(1969) 14 W.I.R. 361 (Guyana — Certiorari)
In respect of these cases, he said they all showed that it was the supervisory capacity of the High Court, which was being invoked by the use of one of the prerogative writs.
There is also the case of Public Service Commission vs. Charles Edward Hunt (No. 1/1975 — Court of Appeal — Antigua) in which learned counsel for the appellants himself brought an action against the Public Service Commission for Antigua on behalf of Hunt. Ironically, on that occasion the Public Service Commission was represented by Mr. Christian who now appears for the respondents, and he relied strongly on that case in support of his contention that the Public Service Commission was a proper party to these proceedings.
Mr. Phillips for the appellants cited the case of Manning v Administrator General 5 W.I.R. 265. In that case it was held that the...
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