Panday v Judicial and Legal Service Commisssion

JurisdictionUK Non-devolved
JudgeLord Mance
Judgment Date01 December 2008
Neutral Citation[2008] UKPC 52
Docket NumberAppeal No 33 of 2007
CourtPrivy Council
Date01 December 2008

[2008] UKPC 52

Privy Council

Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

Sir Paul Kennedy

Appeal No 33 of 2007
Dattatreya Panday
Appellant
and
The Judicial and Legal Service Commission
Respondent

[Delivered by Lord Mance]

Introduction

1

By this appeal, Mr Dattatreya Panday renews his application for leave judicially to review the decision of the Judicial and Legal Service Commission ("the Commission") taken on 2 March 2006 to terminate his appointment as a temporary District Magistrate. His application was refused by the Supreme Court (Lam Sheen Leen J and Balglobin J) on 31 October 2006. Mr Panday's temporary appointment derived from a letter dated 25 August 2003 in which the Commission (through its acting secretary) wrote as follows:

"I am directed to inform you that the Judicial Legal Service Commission [sic] has decided to offer you appointment as Temporary District Magistrate in the Judiciary with effect from 2 September 2003, with salary at the rate of Rs 22,400 [discounted to Rs 21,550 until 30 June 2004] …….

Your employment is liable to termination by one month's notice on either side and will not give you any claim to permanent employment.

The temporary appointment will be subject to the laws and regulations governing the public service of Mauritius and to the Judicial Legal Service Commission regulations for the time being in force as appropriate. You should understand that your whole time will be at the disposal of the Government and that you will not be permitted to undertake private work for reward. …."

2

During 2004 the Master and Deputy Master of the Supreme Court received complaints about Mr Panday's performance of his functions. In August 2004 Mr Panday was summoned to see the Chief Justice and given a warning to improve. Mr Panday by letter dated 17 August 2004 both expressed his good intentions and willingness to learn and offered to resign if asked. The Chief Justice accepted the former and returned the letter. Nevertheless, in October 2004, Mr Panday was told once again by the Chief Justice and Master that his work was not satisfactory. At some further unspecified date, apparently after 18 October 2005, the Master again contacted Mr Panday, after speaking to the Chief Justice, with a request that Mr Panday improve his performance. The Master has said in an affidavit sworn 5 May 2006 that he also brought certain specific matters to Mr Panday's attention on this occasion. Mr Panday denies this, and says that the exhortation remained unspecific despite his request for details.

3

The Commission's decision to terminate Mr Panday's appointment was reached without any further communication with Mr Panday, and in particular without communicating to him the considerations which led the Commission to consider taking such a step or giving him an opportunity to provide explanations or make contrary representations. Through the Chief Justice, the Commission on 3 March 2006 invited Mr Panday to resign rather than have his appointment terminated, but the Commission's decision had already been taken on 2 March 2006, and, when Mr Panday refused to resign, that decision was confirmed in writing to him by letter dated 10 March 2006.

4

Mr Panday submits that the termination of his appointment was a breach of the Constitution, in that it involved a breach either of the Regulations made by the Commission under the Constitution and referred to in his letter of appointment or of the general requirements of procedural fairness and justice. The Supreme Court concluded in the light of its previous decision in Oozeerally v. The Judicial and Legal Service Commission 1981 MR 444; 1981 SCJ 419 (Lallah J) that the regulations had no application to temporary magistrates. The Court further concluded that there was no basis for implying into the terms of employment of a temporary magistrate like Mr Panday any requirement that such employment should only be terminated for good cause or after giving him an opportunity to demonstrate that no such cause existed, and that there was no need to give any reason to terminate his temporary employment "albeit that there seemed to be good reasons to put an end" to it. It also observed that, even if there had been a need for a hearing, "this would have been very informal" and that a hearing "with all the rigour of a court of law" would only have been required if the Commission had been dismissing Mr Panday for misconduct as provided under the regulations "which is not the case in hand".

The law

5

The Commission is created by Chapter VIII of the Constitution and consists under s.85(1) of the Chief Justice and three other members. S.86 of the Constitution (replacing and re-enacting s.81(1) of the Mauritius Constitution Order 1966) provides that "Power to appoint persons to hold or act in offices [specified in the Second Schedule to the Constitution] (including power to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Judicial and Legal Service Commission". The Second Schedule specifies various offices including "Magistrate (including the Presiding Magistrate or a Magistrate of the Intermediate Court or of the Industrial Court or a Senior District Magistrate". S.114(1) provides that in the Constitution "a reference to the holder of an office by the term designating his office shall be construed as including a reference to any person for the time being lawfully acting in or exercising the functions of that office". S.116(1) provides, with obvious relevance to s.86, that "References in this Constitution to the power to remove a public officer from his office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed". Under s.118(1) (replacing and re-enacting s.87(1) of the Mauritius Constitution Order 1966) the Commission has power by regulations to make provision for regulating and facilitating its performance of its functions under the Constitution. S.118(3) provides that "Subject to this section, [the] Commission may regulate its own procedure".

6

The Commission's power under s.87(1) of the Mauritius Constitution Order 1966 was exercised by making the Judicial and Legal Service Commission Regulations (GN 90/67 – 12 August 1967). By virtue of s.5 of the Mauritius Independence Order 1968, these Regulations now take effect, subject to any necessary changes in wording and format to achieve conformity with the present Constitution, as if made under s.118(1) of the present Constitution. Regulation 2 provides that "In these regulations – "office" means any office to which section 86 of the Constitution applies". Regulation 7 provides that, "For the purpose of making appointments to vacancies to any office …. in accordance with its powers under the Constitution, the Commission shall consider the eligibility of all officers for promotion, may interview candidates for such appointments and shall in respect of each candidate consider, amongst others, the following matters – (a) his qualifications; (b) his general fitness; (c) any previous employment of the candidate in the public service or in private practice". Regulation 8 deals with situations where an officer "has attained the age at which he can, under any enactment lawfully be required to retire from the public service"; if it appears to the Chief Justice that the officer ought to be called upon to retire, then he "shall report the matter together with the reasons therefore to the Commission and the Commission shall decide whether such officer should be called upon to retire".

7

Regulation 9 provides that

"9(1) Notwithstanding regulation 8, where it is represented to the Commission or the Commission considers it desirable in the public interest that an officer ought to be required to retire from the public service on grounds which cannot suitably be dealt with by the procedure prescribed by these regulations, it shall call for a full report from the Chief Justice …..

(2) Where, after considering such a report and giving the officer an opportunity of submitting a reply to the grounds on which his retirement is contemplated, and having regard to the conditions of the public service, the usefulness of the officer thereto, and all the other circumstances of the case, the Commission is satisfied that it is desirable in the public interest so to do, it shall direct that the officer should retire."

Part IV (regulations 11 to 21) headed "Discipline" deals extensively with the procedure to be followed in cases where an officer appears to have committed an offence against any law or otherwise to have misconducted him- or herself; it provides for a full opportunity to know and rebut any such case before the Commission in the course of any disciplinary proceedings.

Analysis

8

Their Lordships are indebted to counsel on both sides for their succinct and helpful submissions. Their Lordships start with the Constitution. The sections which are potentially relevant are sections 85 and 86, read with ss.114 and 116. Any suggestion that temporary magistrates fall entirely outside these sections would face a self-evident problem. It...

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