Jackson v Secretary of State for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 08 January 1992 |
| Docket Number | No. 17. |
| Date | 08 January 1992 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Weir.
Administrative lawEmploymentJudicial reviewCivil servant applying for early retirement on grounds of ill health while disciplinary proceedings pending against himWhether proper interpretation of civil service conditions of service, that referral to occupational health service be made at the earliest possible stage meant that disciplinary proceedings had to be completed firstWhether provisions for early retirement independent of disciplinary provisions.
The petitioner was the governor of a young offenders institution. Information came to the attention of the Scottish Home and Health Department on 20th October 1988, alleging that cannabis resin had been found in the petitioner's possession and that unauthorised materials were being stored in the institution's garage with the petitioner's knowledge. Preliminary disciplinary enquiries under the Civil Service Pay and Conditions of Service were instituted on 25th October 1988, as a result of which the petitioner was suspended from his post on 28th October 1988. He was subsequently charged on 21st November 1988 with offences under the Firearms Act 1968. Before the information came to the attention of the department, and before any disciplinary action had been taken against the petitioner, he suffered a myocardial infarction. On the advice of his doctor he applied to the department in April 1989 for early retirement on medical grounds. In terms of para. 10581 of the conditions of service, if an officer wished to retire on grounds of ill health "the case will be referred to the Occupational Health Service (O.H.S.) at the earliest possible stage". On 27th July 1989 the department stated that referral to the O.H.S. would be deferred until the disciplinary and criminal proceedings had run their course. The petitioner thereafter presented a petition for judicial review of this decision on the ground that the department were not entitled to defer consideration of his application for retiral until the disciplinary procedures had been disposed of. The Lord Ordinary (Weir) dismissed the petition on the basis that para. 10581 was directory and not mandatory, and that it was unreasonable that an individual could avoid disciplinary proceedings by applying for early retirement. The petitioner reclaimed to the Inner House of the Court of Session. Before the reclaiming motion was heard, disciplinary proceedings, which had been deferred pending the judicial review, took place and the petitioner was dismissed. The respondent argued that the reclaiming motion was inept as the order sought by the petitioner, for declarator that the department were bound in terms of the conditions of service to refer the petitioner's application to the O.H.S., would be of no practical effect, given his dismissal. In the appeal court the petitioner sought to amend the proposed declarator by adding the words "and are" after the word "were". The respondent argued that the amended order would be inappropriate, as the conditions of service only applied to officers in service.
Held (rev. judgment of Lord Weir) (1) that the amendment to the order sought was inappropriate, as the petitioner was no longer in service, but that the court had a wide discretion as to the type of order it could make and it was not prepared to hold that the original order sought would be of no practical effect; (2) that the word "will" in para. 10581 did not imply any element of discretion; (3) that the meaning of para. 10581 was perfectly clear and was not qualified in any way, and there was nothing in the provisions to indicate any interrelationship between the procedures for early retirement and for disciplinary proceedings; (4) that the result of deferring the application for retirement until disciplinary procedures had run their course exposed the petitioner to a penalty in regard to his entitlement to pension which was not provided for in the list of penalties in the conditions of service; and (5) that an application for early retirement on grounds of ill health had to proceed at the earliest possible stage, notwithstanding that disciplinary proceedings were pending, and the department were not permitted to defer such an application; and reclaiming motionallowed, Lord Ordinary's interlocutor recalled and declarator granted.
Gordon W. Jackson made an application for judicial review in the Court of Session under rule 260B of the Rules of Court 1965 in which he sought, inter alia, a declarator that the Scottish Office Home and Health Department, in terms of the Civil Service Pay and Conditions of Service, were bound to refer his application for retirement as governor-in-charge of Glenochil Young Offenders Institution on medical grounds to the Occupational Health Service without reference to certain criminal or disciplinary proceedings pending against him. The Secretary of State for Scotland, as representing the department, was called in the petition as respondent.
The petition and answers thereto called before the Lord Ordinary (Weir) for a first hearing.
At advising, on 16th March 1990 the Lord Ordinary dismissed the petition and refused the application.
At advising, on 8th January 1992, the leading judgment was delivered by Lord Cowie.
LORD COWIE.This is a reclaiming motion from an interlocutor of the Lord Ordinary dated 16th March 1990 in which he dismissed an application by the present reclaimer for judicial review of a decision by the Scottish Home and Health Department (now Scottish Office Home and Health Department) as represented by the present respondent. By that decision the department deferred an application by the reclaimer to be permitted to retire on grounds of ill health from his post as governor-in-charge of Glenochil Young Offenders Institution until disciplinary proceedings against him had been disposed of.
The reclaimer was appointed governor-in-charge of Glenochil Young Offenders Institution on 14th May 1988. On 28th October 1988 he was suspended from the post as a result of an allegation that cannabis resin had been found in his possession and that unauthorised materials had been stored, with the reclaimer's knowledge, in the garage at Glenochil Young Offenders Institution. Information relating to these matters had come to the attention of the department on 20th October 1988 and as a result thereof the department on 25th October 1988 had instituted preliminary disciplinary inquiries under para. 10031 of the Civil Service Pay and Conditions of Service Handbook (hereinafter referred to as "the code"). Subsequent to this on 21st November 1988 the reclaimer was charged on summary complaint with offences under the Firearms Act 1968. It is relevant to note that prior to the above information coming to the attention of the department and before the preliminary inquiries...
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WILLIAM LAURISTON WEST Petitioner (Reclaimer) against SCOTTISH PRISON SERVICE Respondents
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