Felix Dasilva Plaintiff v Attorney General of St.VG First Defendant Kenneth John et Al Second Defendants [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Joseph,Monica J. |
| Judgment Date | 28 September 1997 |
| Judgment citation (vLex) | [1997] ECSC J0731-8 |
| Court | High Court (Saint Vincent) |
| Docket Number | Suit No. 356/1989 |
| Date | 28 September 1997 |
IN THE HIGH COURT OF
AND THE WEST INDIES ASSOCIATED STATES
(CIVIL)
Suit No. 356/1989
Mr.O.R. Sylvester, Q.C., and Miss N. Sylvester for the plaintiff
Mr. Joseph Delves for the Attorney General
Mr. A. Cummings for the second defendants
Joseph, Monica J.
The plaintiff filed a writ of summons on 16th August 1989 followed by a statement of claim filed on 12th December 1989. He alleges that as a result of wrongful acts of the Public Service Commission (the Commission) he has been unlawfully and wrongfully deprived of salary and benefits and has suffered financial loss and damage:
The reliefs sought are:
1) A declaration that the removal of the plaintiff from office of Superintendent of Airports by letter dated 7th July 1988 with effect from 24th May 1988 was wrongful and nullity.
2) Alternatively a declaration that the purported removal of the plaintiff as Superintendent of Airports a Head of Department and the purported posting to a post of Assistant Secretary in the Ministry of Tourism, Aviation and Culture is a dismissal within the meaning of S 87 of the St. Vincent Constitution Order 1979 No. 916
3) A declaration that the letter dated 18th January 1989, purporting to retire the plaintiff in the public interest is an assertion that the plaintiff is still a public officer in the service of the Government of St.Vincent and that the suspension of the payment of the plaintiffs salary was wrongful and unlawful and a nullity.
4) Further a declaration that the retiring of a public officer in the public interest is punitive and/or penal and/or disciplinary and was not invoked in accordance with any law and or civil Service Regulations and is a nullity.
5) Damages
6) An order that the plaintiff be restored to office (This claim was withdrawn during trial).
7) Such further orders or declarations as to the Court seems fit.
Leave was granted to enter a conditional appearance for the Attorney General and this was filed on 28th September 1989. A defence was filed on 22nd December 1989, on behalf of the Attorney General and a reply and joinder of issue was filed on 25th June 1990. After judgment was handed down in a preliminary issue leave was granted to join the second defendants.
The statement of claim alleges that the plaintiff was a public officer holding the post of Superintendent of Airports having been so appointed by letter dated 9th October 1978 with the approval of His Excellency the Governor. The plaintiff states mat he was head of a department of government and subject to sections 79 and 87 of the St. Vincent Constitution Order 1979 No. 916 (the Constitution).
The plaintiff asserts that arrangements were made to transfer him to the post of Assistant Secretary, Ministry of Tourism, Aviation, Culture and Women's Affairs, despite his protests that he had no training or skills in Aviation and that that post was tantamount to a change or alteration of his duties and a reduction of his rank.
The plaintiff states that about 25th May 1988 he lodged an appeal to the Public Service Board of Appeal (the Appeal Board); notified the Commission and was notified by the Chief Personnel Officer (CPO) by letter dated 8th June 1988 that, in accordance with the Commission's Regulations, the decision to transfer is not subject to appeal in accordance with the Public Service Commission Regulations.
The plaintiff further states that an application for an interlocutory injunction came on for hearing in Chambers on 1st July 1988, during which the then trial judge observed to the Solicitor General that the plaintiffs appointment being one which was made by the Governor General it was the Governor General to act on the advice of the Commission but that he was not advising anyone. After arguments the Solicitor General sought and was granted an adjournment for the next Chamber Day.
The plaintiffs allegation is that he received a tetter dated 7th July 1988 from CPO informing him that the Governor General acting on the advice of the Commission had approved his removal from the post of Superintendent of Airports with effect from 24th May 1988, and that approval has also been given for his appointment as Assistant Secretary, Ministry of Tourism, Aviation and Culture with effect from 24th May 1988. The plaintiff withdrew the appeal he had filed and filed another appeal which when it was about to be heard on 19th January 1989, his attention was drawn to a letter dated 18th January 1989, purporting to retire him in the public interest.
A Defence filed on behalf of the Attorney General denies that the plaintiff was Head of Department and asserts that he was employed as Superintendent of Airports under the supervision of the Permanent Secretary, Ministry of Tourism, Aviation and Culture: that if he had taken up his transfer his lone superior would have been the Permanent Secretary, and that the plaintiff was Superintendent of Airports in scale 14–10 which is the same scale as Assistant Secretary.
The defendant alleges that the plaintiff was properly retired in the public interest under section 36 of the Public Service Commission Regulations 1969 (SRO No. 48 of 1969 as amended by SRO No. 16 of 1976).
A further allegation is that when the plaintiff was transferred he submitted a series of sick leave certificates: that he refused to be transferred or to report for work and was properly retired in the public interest.
It is also alleged that the plaintiff had not complied with the provisions of the Crown Proceedings Act No. 37 of 1952 and the Public Officers Protection Act No. 4 of 1991 and its amendment No. 17 of 1988 in bringing this action.
The matter came on for trial on 29th July 1991 when submissions were made in liminie and rulings on these submissions were delivered on 30th September 1991. The Attorney General then indicated that he could no longer represent the Commission.
On 12th October 1994 an order of Court was filed joining Kenneth John, Chairman of the Commission, and Commission members Frank Williams, Sylvester Taylor and Daphne Frederick. There followed an amendment to the statement of claim:
"paragraph 16: that on 30th September 1991 there was delivered in this action a judgment to the effect inter alia that "the purported retirement of the plaintiff is void and of no effect" As a consequence the plaintiff has suffered loss and damage which is still continuing:
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(1) Loss of salary from July 1988 — September 1994 $188,853.67 as follows:
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a) up to June 1989 at $1984.00 per month
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b) July 1989 — December 1990 at $2474.00 per month
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c) January 1991 — December 1991 at $2647.00 per month
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d) January 1992 — December 1992 at $2726.00 per month
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e) January 1993 — September 1994 at $2807.00 per month
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(2) Commuted travelling allowance May 1988 — September 1994 (at $375.00 per month after June 1989) 27,475.00
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(3) Duty allowance May 1988 — September 1994 8,470.00
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(4) Uniform allowance May 1988 — September 1994 1,925.00
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(5) Telephone allowance May 1988 — September 1994 1,309.00
Total 230,032.67
On 25th October 1994 a defence was filed on behalf of the second defendants denying that the transfer to the post of Assistant Secretary is a reduction in rank of the plaintiff and asserting that both positions (Superintendent of Airports and Assistant Secretary) were within the scale 14–10 in the Public Service.
The second defendants allege that the plaintiff was properly retired in the public interest under section 36 of the Public Service Commission Regulations 1969 S.R.O. 48 of 1969 as amended by S.R.& O. No. 16 of 1976, the plaintiff having been retired by them from an office tailing under section 78 of the Constitution.
The second defendants further allege that if the plaintiff was dissatisfied with his retirement in the public interest he had a remedy by appealing to the Public Service Board of Appeal as provided under section 87 of the 1979 Constitution and that it is an abuse of the process of the Court for the plaintiff to bring proceedings in the High Court without first exercising his constitutional rights to appeal to the Public Service Board of Appeal and the High Court has no jurisdiction to entertain this action.
Further or in the alternative, the second defendants claim that! the High Court has no jurisdiction to entertain this action as a common law action by a crown servant against alleged wrongful dismissal, since the plaintiffs remedies if any are adequately provided for in the Constitution by means of an application under section 96 thereof.
There is an allegation that upon transfer to the post of Assistant Secretary the plaintiff protested by submitting medical certificates, and that after 5th August 1988, he ceased to submit sick leave certificates and had effectively abandoned his post.
The second defendants say that when the plaintiff was appointed Superintendent of Airports his letter of appointment clearly stated that he was governed by the Public, Service Commission Regulations and Civil Service Orders, Order 217 (2) clearly states that an officer can be transferred from one post to another post of equivalent grade.
The second defendants further say that the plaintiff refused to be transferred, or to report for work and was properly retired in the public interest as he had clearly demonstrated a total defiance of authority and had rendered himself liable to have been deemed to have abandoned his post.
Still further, the second defendants state that the plaintiff has not complied with the provisions of the Public Officers Protection Act No. 4 of 1981 and its amendments No.17 of...
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...v Darnell Shillingford, Civil Appeal No 10 of 1988 (Dominica), an unreported decision of the Court of Appeal in 1991; Felix DaSilva v Attorney-General , High Court No 356 of 1989 (St Vincent), an unreported decision of Joseph J in the High Court in 1991; Felix Rodgers v Attorney-General, C......