Johnatty v AG of Trinidad and Tobago

JurisdictionUK Non-devolved
JudgeLord Hope of Craighead
Judgment Date02 December 2008
Neutral Citation[2008] UKPC 55
CourtPrivy Council
Docket NumberAppeals No 51 and 56 of 2007
Date02 December 2008
Malcolm Johnatty
Appellant
and
The Attorney General of Trinidad and Tobago
Respondent
and
Malcolm Johnatty
Appellant
and
The Permanent Secretary of the Ministry of Education
Respondent

[2008] UKPC 55

Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Mance

Lord Neuberger of Abbotsbury

Appeals No 51 and 56 of 2007

Privy Council

[Delivered by ] Lord Hope of Craighead
1

The appellant is a teacher by profession. He is also an attorney-at-law admitted to practice in the courts of Trinidad and Tobago. These appeals, which he presented on his own behalf, are the product of anuneasy relationship which he has had with his employers in the Ministry of Education over many years. Regrettably, his approach to the issues raised by the litigation lacks the objectivity which is necessary for sound judgment. Most of the material in his lengthy written case, though forcefully presented, was irrelevant. In it he seeks to raise issues which the Board cannot consider as they were not raised in the Court of Appeal. Those issues that were decided against him in that court are properly before the Board. But at the end of the appellant's oral argument their Lordships were in no doubt that, except for one point regarding costs, the Court of Appeal's decision on those issues was well-founded and that the appeals must be dismissed. When they informed the parties of the result they said that reasons for their decision would be given later. These are their reasons.

The facts
2

The appellant has been employed at the Chaguanas Senior Comprehensive School by the Ministry of Education as a chemistry teacher since September 1984. In that capacity he is entitled to payment of a monthly salary. In 1994 he was suspended from duty pending disciplinary proceedings because it had been alleged that he was not performing his duties as a teacher. But no finding of misconduct was made against him, and he resumed his duties in 1999. In March 2003 disciplinary proceedings were once again brought against him. On this occasion it was alleged that the appellant frequently signed the school's attendance register and then left the school compound shortly afterwards, not to return for the rest of the day. These proceedings remain pending before the disciplinary tribunal of the Teaching Service Commission.

3

In June 2004 the appellant discovered that his salary for that month had not reached his bank in the usual way. He made inquiries at the Paysheets Section of the Ministry of Education as to why his salary had not been processed. He was given a handwritten note by a clerk which indicated that his salary was to be stopped in July. On 1 July 2004 he wrote to the Permanent Secretary of the Ministry of Education ("the respondent") informing her that as of that date no salary had been paid to him for June 2004. He asked for an explanation as to why his salary had been stopped and by whose decision that step had been taken. He gave the letter to Carl Morton, the acting principal of the school, for forwarding to the Ministry. Mr Morton forwarded it to the respondent the same day. The respondent did not reply to it, so the appellant received no answer to the questions that he had raised. This lapse on the part of the Ministry was unfortunate. The appellant assumed that the respondent had indeed decided to cease paying his salary. He also assumed that this was because of allegations that had been made against him of which he had had no notice, to which he had had no opportunity to respond and onwhich no determination had been made by the tribunal. So he decided to apply for judicial review of the action that he believed had been unfairly taken against him.

4

On 27 June 2004 the post of Senior Legal Adviser in the Ministry of Planning and Development was advertised in theNewsday newspaper. The appellant decided to apply for it. He had been advised that applications by him for posts of that kind, which involved the transfer of a person in the public service from one Ministry to another, were to be sent to the Permanent Secretary of the Ministry in which the position was sought through the school's Principal for forwarding by the Ministry of Education's Permanent Secretary. So he gave his letter of application which was dated 29 June 2004 to Mr Morton for forwarding to the respondent. Mr Morton forwarded it to her on 1 July 2004. The deadline for response to the advertisement was 9 July 2004. Later that month the appellant enquired of the Ministry of Planning and Development whether his application had been received. He was told that it had not. Here too there was an unfortunate lapse which led the appellant once again to think that he was being victimised.

The proceedings in the High Court
5

On 26 July 2004 the appellant applied by way of judicial review for the following reliefs: (a) an order quashing the respondent's decision to stop payment of his salary or alternatively to implement a decision to stop payment, (b) an order of mandamus directing the respondent to forward to the relevant authority his applications for employment as an attorney-at-law in the public service and (c) an injunction, including an interim injunction, restraining the respondent by herself or her servants or agents from implementing any decision to stop his salary unless any such decision resulted from disciplinary proceedings. On that date Dean-Armorer J granted an interim injunction on the appellant's ex parte application. The appellant's name was re-instated on the computerised payroll to ensure that while the injunction remained in force he was paid the full amount of his salary.

6

The grounds on which the appellant sought relief against the decision to stop payment of his salary were that it contravened section 129(4) of the Constitution of Trinidad and Tobago which provides that no penalty may be imposed on any public officer except as a result of disciplinary proceedings, that it was in breach of the principles of natural justice in that he had not been confronted with any allegation on which such a decision could have been based and that it failed to satisfy the procedures laid down by regulation 90 of the Public Service Commission Regulations under which he was entitled to be informed of the allegations against him. The appellant maintained that the only allegations againsthim of which he was aware were those that were already before the disciplinary tribunal, which had not yet made any determination. The grounds on which he sought relief against the failure to forward his application for employment were that the respondent had failed to perform a duty required of her by public policy, and that her failure had deprived him of his legitimate expectation that his application for transfer to another position as an attorney-at-law in another Ministry would be forwarded by her to that Ministry's Permanent Secretary.

7

The respondent filed an affidavit on 20 December 2004 in response to the appellant's complaint about the stopping of his salary. She said, in the clearest possible terms, that she had made no decision to stop payment. The Ministry's Director of Human Resource Management, Glenford Joseph, filed an affidavit on 23 December 2004 in which he too said that he did not give any direction or order to stop the appellant's salary. But he went on to explain that, in an effort to avoid overpayment for work not done, he gave directions to the Ministry's Director of Finance and Accounts on 22 June 2004 that the appellant's salary was to be paid only on the basis of returns of attendance submitted by the Principal of the school and validated and forwarded to his Division by the office of the Permanent Secretary. This was to ensure that the appellant would be paid only for the days and parts of each day in each month that he actually worked. He explained that this method of payment was being adopted to combat a chronic problem of overpayment of salary due to absenteeism that was currently being experienced in the Ministry of Education. Its introduction meant that there was some delay in the payment to the appellant of the salary that was due to him. His letter of 22 June 2004, which had not previously been shown to the appellant, was filed as an exhibit to his affidavit. The exhibits also included a copy of a letter which Mr Joseph sent to Mr Morton on 23 June 2004 requesting that reports of the appellant's attendance for each month be forwarded to the office of the Permanent Secretary in order to process the appellant's salary.

8

In response to the appellant's complaint that the respondent had failed to forward his application for the post of Senior Legal Adviser Mr Morton filed an affidavit in which he stated that he had forwarded the appellant's letter to the School Supervisor III at the District Office at Couva on 1 July 2004. The respondent said in her affidavit of 20 December 2004 that she had caused her records to be searched and that this had revealed no record of the application on her file. No explanation was offered for the fact that the application did not reach the respondent. Her case was simply that there had been no failure on her part of the kind that the appellant had alleged against her.

9

On 31 March 2005 the appellant filed an originating motion under section 14 of the Constitution of Trinidad and Tobago in which he sought a declaration that the stopping or reduction of his salary by the Ministry of Education without any finding of misconduct by the disciplinary tribunal and without giving him any opportunity to answer allegations against him amounted to an infringement of his constitutional rights. These were his right to enjoyment of his property, his...

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