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Yasseen v Attorney General of Guyana

Id. vLex Justis VLEX-793479789

Link: https://justis.vlex.com/vid/yasseen-v-attorney-general-793479789

Text

Court of Appeal

Singh, J.A.; Kissoon, J.A.; Chang, J.A.

Civil Appeal No. 97 of 2004

Yasseen
and
Attorney General of Guyana

Appearances:

Mr. B. E. Gibson for appellant

Mr. Doodnauth Singh with Ms. David for respondent

Employment law - Dismissal — Illegal dismissal — Appellant was a member of the police force
— Dismissal in the public interest — Duty to mitigate — Appellant awarded 24 months' salary —
Pension entitlement — Respondent had no reason to exclude the appellant from pension
scheme — Appeal allowed in part — pension awarded.

Singh, JA delivered the decision of the Court: Mohamed Yaseen, the appellant, served in the
Police Force from August 15, 1973 until he was discharged on March 29, 1990. During this
period he attained the rank of sergeant of police. His purported letter of discharge read:

“You are hereby notified that you are discharged from the Guyana Police Force with
effect from March 29, 1990, on the grounds that having regard to the conditions of the
Force and its usefulness thereto, your discharge is desirable in the Public Interest in
accordance with Section 35(1) of the Police Act, Cap. 16:01.”

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As a consequence on April 2, 1990 he appealed to the Police Service Commission but was not
afforded a hearing and was informed that his appeal was disallowed. He then filed an action for
wrongful dismissal claiming:

(1) a declaration that he was wrongfully removed from the Police Force;

(2) a declaration that his removal from the Police Force was unconstitutional, null and void;

(3) damages for wrongful dismissal; and

(4) costs.

At the trial his Counsel made an application to amend the statement of claim to include the
following declaration: “A declaration that the plaintiff was compulsorily retired from the Police
Force and that the Plaintiff be paid compensation and benefits accordingly.”

The trial judge denied his application and proceeded to find that the appellant was unlawfully
removed from the Police Force and awarded him twenty four (24) months salary to be calculated
at the data of his discharge, as damages. The appellant challenged the decision of the learned
trial judge on the following grounds inter alia:

(1) the learned trial Judge erred in awarding compensation on a principle of the law of tort,
to wit mitigation, which is not applicable to a deprivation of a fundamental right;

(2) the appellant having been compulsorily retired from the Police Force ought to be paid
compensation to age 55 years;

(3) the learned trial judge erred in failing to award compensation to the appellant since he
was compulsorily retired from the Police Force.

Mr. Gibson submitted on behalf of the appellant that since the purported discharge was held to be
unlawful and of no effect the appellant remained a member of the Police Force and was legally
entitled to be paid all his salaries and allowances. Further that he had no duty to mitigate his loss
resulting from his removal from the Force.

In the case of Francis v. Municipal of Kuala Lumpur [1962] 3 All E.R. 633, the appellant was a
permanent member of staff of the respondent. He sought a declaration that the termination of his
employment was wrongful and that he had the right to continue in their employment. The Privy
Council held that a declaration to the effect that the contract of service still subsisted would rarely
be made and would not be made in the absence of special circumstances since the Courts
cannot grant specific performance of contracts of personal service but felt that he was entitled to
damages for wrongful dismissal.

The dictum of Lord Morris at page 617 seems to be apt and instructive:

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“Their Lordships consider that it is beyond doubt that on October 1, 1957, there was a
de facto dismissal of the appellant by his employers, the respondents. On that date,
he was excluded from the Council's premises. Since then he has not done any work
for the Council. In all these circumstances it seems to their Lordships that the
appellant must be treated as having been wrongfully dismissed on October 1, 1957
and that his remedy lies in a claim for damages. It would be wholly unreal to accede
to the contention that since October 1, 1957, he had continued to be and that he still
continues to be in employment of the respondents…”

The appellant in this case was not charged with any offence but was discharged under section
35 as a form of punishment for being unable to account for a bag of cannabis sativa which was
entrusted in his care as the station sergeant.

George C.J. made it pellucidly clear in the case of Eric Douglas v. Attorney General (Civil Appeal
No. 59/84) that section 35 was not concerned with discipline:

“As I perceived it, section 35 is not a provision concerned stricto sensu with discipline.
It is more in the nature of a power vested in the Commissioner to ensure a high
standard of general efficiency and rectitude among subordinate ranks of the force.
The law leans heavily in favour of the right to be heard in cases where property rights
are affected.”

The Commissioner in exercising his statutory authority erred when he did not afford the appellant
the right to be heard. According to George, C.J. section 35 is not concerned with discipline and
ought not to be used when an officer is being dismissed for fault as in the present case.

In several cases this Court has held that a public officer had a duty to mitigate his loss. In the
case of Clement Johnson v. Attorney General, C.A 21 of 1992 where a member of the special
constabulary was removed from office, Bernard, J.A., (as she then was), queried why should the
holder of a statutory office be treated differently from the ordinary case of master and servant:

“Why someone employed by a public statutory body which acted wrongly in

dismissing him should be treated differently from the ordinary case of master and
servant and be in a position to claim loss of salary for the entire period he was
awaiting a legal determination of his claim without taking into consideration earnings
from employment he might have obtained while waiting and without mitigating his
losses.”

In Pohiva v. Prime Minister and Kingdom of Tonga (1988) LRC 949, Martin CJ held that the onus
is on the defence to show that the plaintiff had taken steps to obtain alternative employment by
accepting other work which having regard to his standing, experience and background, is such
that he could have reasonably be expected to accept.

Under cross-examination the appellant stated that although he had obtained five (5) subjects at
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CXC and four (4) at ordinary level he did not apply for any job as he was awaiting a response
from the Police Service Commission. That response was received in February 1992. Since his
discharge in 1990 he received assistance from relatives abroad, his parents and brothers who
were pharmacists and his two (2) children who were over 18 years. After 1992 he claimed he
assisted his parents in their rice fields in Essequibo. The trial judge after considering the
evidence as well as decided cases felt that twenty four (24) months was an adequate period in
which someone with the appellant's experience and qualifications would have been able to
secure employment. In the circumstances this Court would not fault him for finding that the award
of twenty four (24) months' salary as damages was adequate.

Mr. Gibson, on behalf of the appellant, contended that the amendment of the statement of claim
ought to have been allowed since the matter was a constitutional one and cited the case of
Attorney General of Antigua v. Lake (1998) 53 WIR 145 as authority that it was not necessary for
the appellant in the present case to have identified any of the constitutional provisions which had
been infringed. I make the observation, however, that at page 155 of that decision Lord Hutson
made it crystal clear that although Benjamin, J. had ruled that Dr. Lake's claims were not barred
by reason of his failure to state specifically in his notice of motion the sections of the Constitution
which he alleged had been breached, that particular ruling of the trial judge was not challenged
by the appellants in their appeal to the Board. In the circumstances, Mr. Gibson's submission is
untenable.

Moreover, I am of the opinion that the amendment of the statement of claim could not have
transformed a private law action for unlawful dismissal to a constitutional matter as what was
alleged was not an infringement of any fundamental right but a breach of natural justice.

In Maharaj v. Attorney General of Trinidad and Tobago (No. 2) (1978) 30 WIR 310 at 321 Lord
Diplock in the course of his judgment made it pellucidly clear that –

“even a failure by a judge to observe one of the fundamental rules of natural justice
does not bring the case within section 6 unless it has resulted, in being deprived of
life, liberty, security of the person or enjoyment of property.”

Section 6 of the Trinidad Constitution deals with the infringement of fundamental rights. Mr.
Gibson further contended that the appellant was entitled to his superannuation benefits since he
was compulsorily removed from office. The trial judge omitted to consider this aspect.

The Commissioner of Police did not dismiss the appellant for fault but discharged him under
section 35 which is not concerned with discipline. The appellant testified under cross-
examination that on his discharge he was not given a certificate of discharge. There is no
evidence to the contrary. A person is prohibited from receiving pension without being granted a
certificate from his head of department that he had performed his duties satisfactorily.

Section 8 of the Pensions Act, Cap 27:02 prohibits the granting of a pension except on retirement
in one of the following cases:- “(e) on termination of employment in the public interest as provided
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in one of the following cases:- “(e) on termination of employment in the public interest as provided
in the Act.”

Since the appellant in the instant case was discharged in the public interest as opposed to being
dismissed for fault, he would seem to be eligible to receive superannuation benefits.

Section 9 of the Pensions Act which deals specifically with the termination of employment in the
public interest clarifies the position in a case where a person cannot be granted a pension.

The section couched in the subjective language imports a discretion in the Minister responsible
for pensions. Case law and text book authorities show that a person in whom a discretion is
conferred by statute must act reasonably, in good faith and upon proper grounds. In other words
such a person does not have an unfettered discretion to refuse or withhold the granting of a
pension.

Article 214 of the Constitution does not give a public officer an absolute right to a pension but
makes the exercise of the discretion to refuse or withhold conditional upon the concurrence of the
appropriate Service Commission. There is no evidence on record that there was any
concurrence of the appellant's pension being refused or withheld by the Police Service
Commission and in the circumstances he would be eligible to receive pension for the period of
seventeen (17) years service in the Force.

Accordingly, the appeal is allowed in part. Each party to bear his own costs. The appellant is
entitled to receive the award of twenty-for (24) months' salary calculated at the date of his
discharge as damages for unlawful dismissal with interests at the rate of 6% from the date of the
filing of the writ, March 12, 1993 to the date of judgment in the High Court 23 rd November, 2004
thereafter at 4% until the judgment has been fully paid together with pension for his service of
seventeen (17) years in the Police Force.

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