Simon v Charter and Simon v Pierre et Al

• Jurisdiction: Grenada
• Judge: Alleyne, J.
• Judgment Date: 19 February 2001
• Neutral Citation: GD 2001 HC 6
• Docket Number: Civil Suit no. 12 of 1999
• Court: High Court (Grenada)
• Date: 19 February 2001

High Court

Alleyne, J.

Civil Suit no. 12 of 1999

Simon

and

Charter

and

Simon

and

Pierre et al

Appearances:

Mr. Carol W.J. Bristol, Q.C. for the applicant.

Mr. Alban John for the Respondent Joseph Charter.

Mr. John Tyme for the Respondent the Attorney General.

Public service - Abolition of post — Whether holder compulsorily retired thereby — Applicant claimed declarations that in absence of directions being given to respondent pursuant to sec. 84(2) of Constitution respondent could not appoint a public officer to office in Public Service that removal of post of PBX Operator from estimates amounted to abolition of office and applicant entitled to compensation under sec. 84(8) of Constitution and that the applicant was discriminated against when paid as PBX operator a lower salary than other PBX operators — Whether purported reassignment of applicant by respondent fell within sec. 84(1) of Constitution — Finding that in circumstances of case officer treated as having been compulsorily retired and thus entitled to benefits in accordance with sec. 84(8) of Constitution — Declarations granted and order that applicant be paid full pension and retirement benefits — Costs to applicant.

Alleyne, J.

1 Before I address the issues in these cases, I feel constrained to make some observations.

2 These cases are brought under the Constitution of Grenada, and involve important issues that could have a far-reaching impact on long-standing assumptions, practices and procedures within the public administration of Grenada, and possibly other countries within and outside the Commonwealth Caribbean with Constitutions similar to that of Grenada. Even if that is not the case, the very fact that the matters arise under the Constitution is itself enough to demand proper attention from the legal department of the Government of Grenada.

3 Suit No. 12 of 1999 between the applicant and Joseph Charter was earlier addressed by the High Court and went on appeal to the court of Appeal, whence it was referred back to the High Court for trial on the merits. In the meantime the applicant filed a further Notice of Motion, Suit No. 547 of 2000, against Michael Pierre and the Attorney General, to which the Solicitor General entered Appearance on behalf of both Respondents. Both matters came up before the High Court on November 30, 2000, and in both matters Mr. Robert Alexis appeared, holding papers for the Solicitor General on behalf of the respondents to the second suit, but having a clear interest in the first, even if not specifically named. The matters were then adjourned to January 25, 2001 at the request of Mr. Alexis. On January 25, 2001, the matter was again adjourned at the instance of the court, due to the number of matters listed for that day, and the need to allow adequate time for appropriate attention to be given to the matter. On that occasion Mr. John Tyme appeared for the respondents. It was understood by all that the matter would be heard on the adjourned date, February 9, 2001.

4 On the date fixed for hearing, Mr. Tyme again appeared for the Attorney General, but disclaimed appearance on behalf of Michael Pierre. Mr. Pierre was called, and there was no appearance of or for him, notwithstanding that the Solicitor General was on record as having entered an Appearance on his behalf, and not having obtained leave to withdraw.

5 Mr. Bristol was called upon and made his submission on behalf of the applicant. When the court called upon Mr. Tyme, he responded that he had only been handed the papers a few minutes before the time fixed for the hearing, and in the circumstances he was unable to respond to Mr. Bristol's submissions.

6 I bear in mind that Mr. Tyme is an attorney-at-law admitted to practice only very recently. I cannot help thinking that the events referred to demonstrate gross disregard for the professional reputation and development of this young lawyer who was apparently thrust into this most invidious position. In addition, it manifests a gross disrespect for the court, which, in the result, is called upon to determine potentially far-reaching constitutional questions without the benefit of argument on behalf of the Crown. It is difficult to overemphasize the seriousness with which the court views the conduct of the Crown in this respect.

7 Coming now to the issues in the case; there are before the court two separate actions at the instance of the same applicant, raising closely related issues. In Suit No. 12 of 1999, initiated by Notice of Motion filed on January 8, 1999, the applicant claims a declaration that

1

In the absence of directions being given to the respondent pursuant to section 84(2) of the Constitution the respondent cannot appoint a public officer to an office in the Public Service. 2. The removal of the post of PBX Operator from the estimates amounts to the abolition of office and consequently the applicant is entitled to be compensated under section 84(8) of the Constitution. 3. The applicant has been treated in a discriminatory manner when he was paid as PBX Operator a lower salary than the salary paid to other PBX Operators.

8 In Suit No. 547 of 2000, the applicant seeks a declaration that:

• 1. In the absence of directions being given to the first respondent pursuant to section 84(2) of the Constitution of Grenada the first respondent cannot terminate the appointment of a public officer from the public service;

• 2. The applicant is pursuant to section 84(8) of the said Constitution entitled to the full pension and retirement benefits enshrined in that section as the applicant was required to retire for the purpose of reorganization of the Ministry of Works, Communications and Public Utilities.

9 The facts in the cases are fairly straightforward and non-controversial. They are contained in the various affidavits filed in the two suits.

10 The applicant is a public officer holding an office of emolument in the public service of Grenada as defined in section 111(1) of the Constitution. His service as such began as a store keeper, and from January 25, 1993, he held the office of PBX Operator in the Ministry of Works, Communications and Public Utilities. This was communicated to him by a letter dated January 20, 1993, signed by the Permanent Secretary, Ministry of Works which advised that: “with effect from Monday 25th January, 1993, and until further notice you will be assigned as PABX Operator vice Ms. Maureen Miller.”

11 The applicant claims, but the respondent denies, that he was paid a lower salary than that to which he was entitled in the position which he held. More to the point is the respondent's claim that the applicant was not appointed to that office, but was, rather, assigned thereto. The respondent asserts, in his letter in the capacity of Permanent Secretary, Ministry of Works, to the applicant, dated 31st July 1998, that: “When an officer is assigned to any particular position he/she continues to hold and be paid salary in his/her substantive post.”

12 The respondent did not then, and has not since, offered any justification or authority for the distinction which he makes.

13 On December 21, 1998, the respondent, in the same capacity, wrote the applicant a letter which I reproduce in full:

“Dear Mr. Simon,

Pursuant to the power vested in me for that purpose, you are hereby advised that with effect from January 4th 1999, and until further notice, you shall be reassigned to performing the duties as Gateman at the Ministry of Works.

You will continue to receive the same rate of salary and would be directly responsible to Mr. Samuel La Touche, Supervisor and through him the Permanent Secretary, Works, for the performance of your duties.

This cancels and supercedes my letter of January 20th, 1993, a copy of which is attached for easy reference.”

14 The applicant challenges the respondent's authority to “reassign” him as he has purported to do. In a letter dated 22nd December 1998 to the respondent, the applicant's Trade Union, the Public Workers Union, directed the respondent's attention to section 84(2) of the Constitution, and to the Public Service Commission Minutes of 10th May 1971. Those Minutes are exhibited to the respondent's affidavit filed February 22, 1999, as exhibit “JC9”. The Minute records the following decision, quoted in part: “The Commission agreed to delegate to Permanent Secretaries and Heads of Departments, authority for the appointment only of certain categories of minor-salaried employees in the Public Service, subject to the concurrence of the Honourable Premier.”

15 It is on the authority of this delegation that the respondent relies.

16 The delegation was supposedly made under authority of the Grenada Constitution Order 1967 (S.I. 1967/227). No further authority has been propounded by the respondents.

17 Subsequent to the filing of the Motion in Suit No. 12 of 1999, on 12th July 2000, the first-named respondent in Suit No. 547 of 2000, who had by that time succeeded the respondent...