Public Service Appeal Board v Maraj
| Jurisdiction | UK Non-devolved |
| Judge | LADY HALE |
| Judgment Date | 17 November 2010 |
| Neutral Citation | [2010] UKPC 29 |
| Date | 17 November 2010 |
| Docket Number | Appeal No 19 of 2010 |
| Court | Privy Council |
[2010] UKPC 29
Lord Hope
Lady Hale
Lord Brown
Lord Kerr
Sir John Dyson SCJ
Privy Council
Appellant
Peter Knox QC
(Instructed by Charles Russell LLP)
Respondent
Douglas Mendes SC
H.R. Ian Roach
(Trinidad & Tobago Bar)
(Instructed by Simons, Muirhead and Burton)
The issue in this case is whether a public officer has a right of appeal to the Public Service Appeal Board when he has been dismissed following the summary procedure applicable to officers who have been found guilty of criminal offences in the criminal courts. This is turn depends upon the meaning of the words "any decision of a Service Commission … as a result of disciplinary proceedings brought against a public officer" in section 132(1) of the Constitution of Trinidad and Tobago which deals with the jurisdiction of the Appeal Board. The point is short but the answer is not straightforward. It is of considerable importance to all public officers in the Republic.
The facts
The respondent joined the public teaching service in January 1980 and taught at Barrackpore Secondary School until his dismissal on 22 October 2004. In 2002, he forged a letter from the Ministry of Education, misstating his qualifications, and submitted it in support of his application to study for a Bachelor of Education degree at the University of the West Indies. He was prosecuted for two offences of forgery, to which he pleaded guilty in June 2003. He was given an absolute discharge under section 71(1)(a) of the Summary Courts Act, which may be some indication of the court's view of the seriousness of his behaviour.
In June 2004, the Teaching Service Commission took action against him under the summary procedure provided for by section 129(5) - (7) of the Constitution (see para 7 below). In response to an invitation to submit representations, he argued, with the strong support of his Principal II, that if it were thought necessary to impose any penalty upon him it should be limited to a reprimand. However, the Commission decided to terminate his employment with effect from 22 October 2004.
He filed a notice of appeal with the Public Service Appeal Board, but by a judgment dated 27 September 2005, the Board decided that it did not have jurisdiction to hear his appeal. The decision to dismiss him had not been taken as a result of disciplinary proceedings brought against him. The Respondent applied for judicial review of the Board's decision, but was unsuccessful at first instance before Gobin J. She applied a literal construction to the relevant provisions and agreed that the Board did not have jurisdiction. However, he was successful on appeal to the Court of Appeal. They applied a more purposive construction and unanimously decided that the Board did have jurisdiction. The Appeal Board now appeal to this Board.
The law
The employment and dismissal of public officers, including teachers, is provided for in the Constitution of Trinidad and Tobago. Chapter 9 is headed "Service Commissions etc". Part I of that Chapter deals with the Public Service, Police Service and Teaching Service Commissions. Section 124 establishes the Teaching Service Commission, which by section 125 is responsible for the appointment, promotion, removal and discipline of teachers in the public service. Part I also contains some General Provisions which are common to all three Service Commissions. Most important for our purposes is section 129.
Section 129(1) provides that the Commissions may regulate their own procedure:
"(1) Subject to subsection (3), a Service Commission may, with the consent of the Prime Minister, by regulation or otherwise regulate its own procedure, including the procedure for consultation with persons with whom it is required by this Constitution to consult, and confer powers and impose duties on any public officer ….. for the purpose of the discharge of its functions."
Subsection (3), which purported to insulate the Commissions from judicial review, was repealed in 2000 (a matter to which we must return): section 3 of the Constitution (Amendment) Act 2000 (Act No 43 of 2000).
Subsection (4) provides as follows:
"(4) No penalty may be imposed on any public officer except as a result of disciplinary proceedings."
However, since amendments made by the Constitution (Amendment) Act in 2000, this is followed by subsections (5) to (7):
"(5) Notwithstanding subsection (4), where an officer is convicted of a criminal charge in any court and the time allotted for an appeal has elapsed or, if the officer has appealed, the appeal process has been completed or an order has been made in the matter under section 71 of the Summary Courts Act, a Service Commission may consider the relevant proceedings on such charge and if it is of the opinion that the officer ought to be dismissed or subjected to some lesser punishment in respect of the conduct which led to his conviction on the criminal charge or to the making of the order, the Commission may thereupon dismiss or otherwise punish the officer without the institution of any disciplinary proceedings.
(6) In furtherance of subsection (5) –
(a) a certificate of conviction issued by the court shall be sufficient evidence of an officer's conviction for an offence;
(b) a certified copy of an order made under section 71 of the Summary Courts Act shall be sufficient evidence of the commission by the officer of the offence for which he was charged.
(7) An officer referred to in subsection (5) shall be entitled to show cause why he should not be dismissed from office."
Part II of Chapter 9 deals with the Public Service Appeal Board. Section 130 provides for its establishment and constitution:
"(1) There shall be a Public Service Appeal Board (hereinafter referred to as "the Appeal Board") to which appeals shall lie from such decisions against public officers as are specified in section 132.
(2) The Appeal Board shall consist of a Chairman appointed by the President after consultation with the Chief Justice and two other members appointed by the President after consultation with the Prime Minister and the Leader of the Opposition.
(2A) The Chairman shall be a Judge …
(3) One member of the Appeal Board shall be a retired public officer."
Section 131 deals with their qualifications and terms of office, which are the same as those of the Service Commissions. But it seems clear from its composition and jurisdiction that the Appeal Board is intended to be independent of the Service Commissions and to exercise a judicial or quasi-judicial function.
Section 132 deals with its jurisdiction and powers. This does not cover all the multitude of decisions which a Service Commission may make. According to the side-note, it covers "appeals in disciplinary cases":
"(1) An appeal shall lie to the Public Service Appeal Board from any decision of a Service Commission, or of any person to whom the powers of the Commission have been delegated, as a result of disciplinary proceedings brought against a public officer.
(2) An appeal under subsection (1) shall lie to the Appeal Board at the instance of the public officer in respect of whom the decision is made.
(3) The Appeal Board may, where it considers it necessary that further evidence be adduced –
(a) Order such evidence to be adduced either before the Board or by affidavit; or
(b) refer the matter back to the relevant Service Commission to take such evidence and –
(i) to adjudicate upon the matter afresh; or
(ii) to report for the information of the Appeal Board specific findings of fact.
(3A) Where a matter is referred to a Service Commission under paragraph (b) of subsection (3), the matter, so far as may be practicable or necessary, shall be dealt with as if it were being heard at first instance.
(3B) Upon the conclusion of the hearing of an appeal under this section, the Appeal Board may –
(a) affirm, modify or amend the decision appealed against; or
(b) set aside the decision; or
(c) substitute any other decision which the Service Commission could have made.
…
(7) This section and sections 130 and 131 shall be, in addition to and not in derogation of any other provisions for review of the decision of any Service Commission."
This appeal turns on the interpretation of section 132(1) and in particular upon whether the term "disciplinary proceedings" has the same meaning in that subsection as it has in section 129(4) and (5) (para 7 above) and if so what that is.
The literal interpretation
Mr Peter Knox QC, who appears for the Appeal Board, understandably relies upon the "natural and ordinary meaning" of these provisions. "Disciplinary proceedings" in section 132(1) must mean the same as "disciplinary proceedings" in section 129. The summary process for dealing with officers convicted or discharged in criminal proceedings, provided for in section 129(5) to (7), is clearly an exception to the general rule in section 129(4) that no penalty can be imposed except as a result of "disciplinary proceedings". Hence, whatever that term may in fact mean, it cannot include the summary process. Therefore, the Board has no jurisdiction in cases where the summary process has been used.
At the hearing before this Board, Mr Douglas Mendes SC, for the Respondent, advanced for the first time the proposition that "disciplinary proceedings" in both section 129(4) and section 132(1) covered any kind of disciplinary process adopted by a Service Commission, including the summary process provided for in section 129(5) to (7). He acknowledged that this interpretation made those subsections redundant, because the Commission would have been able to proceed in that way without them. Yet when Parliament introduced those subsections in 2000, it was clearly intending to make an...
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