Allan Michael Benjamin Applicant/Appellant v Public Service Commission Respondent [ECSC]
| Jurisdiction | Grenada |
| Judge | REDHEAD J.A.,Justice of Appeal,SATROHAN SINGH,ALBERT MATTHEW,Justice of Appeal [Ag.] |
| Judgment Date | 14 September 1998 |
| Judgment citation (vLex) | [1998] ECSC J0914-1 |
| Court | Court of Appeal (Grenada) |
| Docket Number | CIVIL APPEAL NO. 9 OF 1998 |
| Date | 14 September 1998 |
IN THE COURT OF APPEAL
The Hon. Mr. Satrohan Singh Justice of Appeal
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Albert Matthew Justice of Appeal [Ag.]
CIVIL APPEAL NO. 9 OF 1998
Mr. R. Benjamin for the Appellant
Miss K. Noel with Mr. Benjamin
Mr. Friday, Solicitor General for the Respondent
The Appellant, a Grenadian National, was trained as a medical doctor in Cuba. Upon completion of his training he returned to Grenada. He was first appointed on probation for two years, as Registrar at the General Hospital. That appointment was to take effect from 1st November, l991.
He was later appointed Obstetrician/Gynaecologist, on 29th June, l992 on probation for two years. That probationary period was to commence from 1st November, l991.
On 7th March, l995 the Appellant 's services were terminated by the Respondent with effect from 30th April, l995. The Appellant alleges that his services were wrongfully terminated by the Respondent. As a result he brought a motion before the High Court seeking inter alia the following declarations and order:-
"[1] A declaration that the failure of the Public Service Commission to confirm the appointment of Applicant in the office of Obstetrician/Gynaecologist on the staff of the General Hospital……….within two years of the 1st November, l991…….. is a contravention of the provisions of section 84[1] of the Constitution and the Public Service Commission Regulations 37[ 1] and 37[2] made pursuant to Section 83[13] of the Constitution.
[2] A declaration that the failure of the Public Service Commission to implement and/or to follow and/or to carry out and/or to abide by the provisions of Regulations 37[1], 37] 2] and 38 of the Public Service Commission regulations in respect of the appointment on the 1st November, l991 of the Applicant to the office of Obstetrician/Gynaecologist on the staff of the General Hospital……..amounts to a contravention of the said regulations.
[3] A declaration that the Applicant's probation appointment [Sic] to the Office of Obstetrician/Gynaecologist on the staff of the General Hospital………which took effect on 1st November, l991 ended on 31st October, l993 and that as of and from that date the Applicant's substantive appointment as Obstetrician/Gynaecologist took effect.
[4] An order that the Applicant be allowed forthwith on the staff of the General Hospital in the Ministry of Health Housing and Environment of the Government of Grenada and be permitted to perform his duties in the said post."
This motion was supported by an affidavit deposed to by the Appellant.
Affidavits in opposition were filed on behalf of the Respondent. All these affidavits deposed to events post 31st October, l993. For example Donna Campbell, Theatre Nurse, deposed to an affidavit in which she said among other things that on the 4th October, l994 one Dr. Bilgele and Dr. Arivinda were in the operating theatre. The Appellant was carrying out an operation and throughout the entire case, Dr. Bilgele, who was not registered to practice in Grenada, assisted the appellant in carrying out the operation.
This was reported to the Medical Superintendent. It seems that this formed the basis of a complaint upon which the Respondent considered when they terminated the Appellant's services.
The gravamen of the Appellant's complaint before the learned trial judge was that as deposed in the affidavit viz:-
"[6] During my period of probation the Public Service Commission failed and/or refused to apply the provision of regulation 37[2] of the Public Service Commission Regulations with respect to my probation in that no report on my performance during the first six months of my probationary period was made, neither were reports made as required by the regulation during each succeeding twelve months of my probationary period.
[7] Neither the Permanent Secretary, Ministry of Health, nor the head of my department i.e. the Chief Medical Officer submitted the required report and recommendation one month before the end of my probationary period as mandated by regulation 37[2] of the Public Service Commission Regulation.
[8] At no time during my probationary period was I tested as to my suitability for appointment nor was I subjected to continual and sympathetic supervision nor was it ever drawn to my attention in any writing by the Permanent Secretary or head of my department that I exhibited tendencies which rendered it doubtful that I am likely to become fit for confirmation in my appointment".
The Motion came before St. Paul J. who on the 28th May, l998 dismissed the Motion. The learned trial judge appeared to have followed the judgment of Lord Diplock in Kamrajh Harrikisson v Attorney General [1979] 31 W.I.R. 348 [1979] 31 W.I.R. 348.
Where Lord Diplock in delivering the opinion of the Board at page 349 said:-
"The right to apply to the High Court under Section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under Section 6[1] the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation isfrivolous or vexations or an abuse of the process of the court or being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom"
After referring to the above passage inHarrikisson the learned trial judge in dismissing the motion concluded:
"I am of the opinion that the approach by the applicant to the court under S.101 of the Constitution to be a misuse of that provision. S.91 of the Constitution provides for an approach to the Board in such a matter".
I interpret the reasoning of the learned trial judge, to be that having regard toHarrikisson, that the appellant having a right of appeal to the Public Service Board of Appeal had no right to come to the Constitutional Court under the provision of S.101 to seek relief, unless he had exhausted the appeal procedure provided by S.91 of the Constitution i.e. an appeal to the Public Service Board of Appeal.
But this is not what, in my view,Harrikisson decided.
First of allHarrikisson was considering an alleged breach of a fundamental right under chapter 1 of Trinidad and Tobago Constitution.
Secondly under S.6 of the Constitution which provides direct access to the High Court for a contravention or an anticipated contravention [if I may put it that way] of a fundamental right must not be abused because its value would be diminished. The constitutional court must therefore be vigilant in protecting this important constitutional remedy. If therefore there is a mere allegation of a breach of a fundamental right where none exists or if the complaint is purely unlawful administrative action which involves no contravention of any human right or fundamental freedom then the Constitutional Court should decline jurisdiction.
Section 91 of the Grenada Constitution provides as follows:
"91[1] Subject to the provisions of this Section, an appeal shall lie to the Public Service Board of Appeal...
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