Mohammed v Police Service Commission and Public Service Appeal Board
| Jurisdiction | Trinidad & Tobago |
| Judge | Boodoosingh, J. |
| Judgment Date | 28 July 2011 |
| Neutral Citation | TT 2011 HC 244 |
| Docket Number | CV 4646 of 2008 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 July 2011 |
High Court
Boodoosingh, J.
CV 4646 of 2008
Mr. Avory Sinanan SC leading Mr. Kelvin Ramkissoon instructed by Ms Cindy Bhagwandeen for the claimant
Mr. Russell Martineau SC leading Ms Tamara Maharajh instructed by Mrs. Deowattee Dliraj-Battoosingh for the defendant
Mr. Alvin Fitzpatrick SC leading Mr. Larry Lelia for the Interested Party
Administrative Law - Discipline of police officer — Constitutional (Amendment) Act, 2006 — Discipline of police officers below certain rank transferred to the Commissioner of Police and with Public Service Appeal Board continuing to hear appeals — Police officers had been dismissed by Commission — Court held that the Commission had no power to dismiss the claimant after the Act came into force and Public Service Appeal Board had no jurisdiction to hear an appeal from that dismissal — Claimant not validly dismissed and entitled to be reinstated.
Abzal Mohammed was a police officer in the Trinidad and Tobago Police Service. By letter dated 6 August 2008, the Police Service Commission (the Commission) purported to dismiss him from the Police Service.
This had followed consideration of disciplinary charges by the Commission which had made a finding of guilt in relation to disciplinary charges which had been brought against him some time before 2005, arising out of an incident in March 2003.
On 13 April 2006, Parliament passed an amendment to the Constitution relating to the Police Service Commission — the Constitution (Amendment) Act 2006 (the Act). This amendment took effect on 1 January 2007 following a Proclamation by the President. The amendment concerned, among other things, the powers of the Commission and the Public Service Appeal Board (the Board) on the disciplining of members of the police. It also sought to give more powers to the Commissioner of Police regarding the disciplining of police officers.
Before the amendment, police officers of the claimant's rank were disciplined by the Commission. Proceedings were held before the Commission which had powers to make a finding of guilt based on charges of misconduct and to impose a penalty for such findings. A police officer who was penalised had a right of appeal conferred by statute to the Board.
After the constitutional amendment, the disciplining of police officers, excluding the Commissioner of Police and the Deputy Commissioners, was transferred from the Commission to the Commissioner of Police — see section 7 of the Act (section 123A of the Constitution). This was no doubt part of an attempt to give the Commissioner of Police greater control over the management of the police service and of the officers under his command.
As the explanatory note to the Bill said:
The main purpose of the Bill is to amend the Constitution to transfer most of the powers of the Police Service Commission to the Commissioner of Police, except the power to appoint, discipline and remove the Commissioner and Deputy Commissioner of Police. This Bill also confers on the Commissioner of Police the control and management of the Police Service and other related powers. The Public Service Appeal Board shall continue to serve as the appellate body against a decision of the Commission and Commissioner in disciplinary proceedings. The Bill requires a special majority vote.
However, by section 6 of the Act, the new section 123 (10) states: “notwithstanding section 132, no appeal shall lie to the Public Service Appeal Board in respect of a decision made by the Police Service Commission under this section.”
Further, section 7 of the Act was explicit. It said:
- The Constitution is amended by inserting after section 123 the following section: 123A. (1) Subject to section 123(1), the Commissioner of Police shall have the complete power to manage the Police Service and is required to ensure that the human, financial and material resources available to the Service are used in an efficient and effective manner. (2) The Commissioner of Police shall have the power to — (a) appoint persons to hold or act in an office in the Police Service, other than an officer referred to in section 123(1)(a), including the power to make appointments on promotion and to confirm appointments; (b) transfer any police officer; and (c) REMOVE FROM OFFICE AND EXERCISE DISCIPLINARY CONTROL OVER POLICE OFFICERS, OTHER THAN AN OFFICER REFERRED TO IN SECTION 123(1) (a) Emphasis mine) (3) The functions of the Commissioner of Police under this section may be exercised by him in person or through any police officer of or above the rank of Superintendent acting under and in accordance with his general or special instructions. (4) In the performance of his functions under this section the Commissioner of Police shall act in accordance with the Police Service Act, 2006 and the regulations made there under.
Section 11 of the Act, which was headed Transitionals and Savings, provided as follows:
- (1) Notwithstanding section 126 of the Constitution, all the members of the Police Service Commission, appointed under section 122, shall vacate their offices within six months after this Act comes into force, and in any event, the offices of the Commissioners are deemed to be vacant from the day following the expiry of the said six months. (2) Any matter which, immediately before the effective date specified in subsection (1), is pending before the Police Service Commission or before any person or authority to whom the power to deal with such matters has been delegated by the Police Service Commission, shall, from the effective date specified in subsection (1), be continued before the corresponding Police Service Commission after the commencement of this Act or the said person or authority, as the case may require. (3) Any appeal filed by a police officer and pending before the Public Service Appeal Board, at the commencement of this Act, shall be heard and determined by the Board after the commencement of this Act, as though this Act had not been passed.
It is the construction of these sections that gives rise to the issues in this case concerning the claimant. Two additional factors are relevant.
First, in the dismissal letter, the claimant was told he did not have an appeal to the Board. This followed from the position taken by the Board that it had no jurisdiction to hear an appeal from the Commission following the enactment of the amendment.
The second is that the Commission, which made the finding of guilt, was a differently constituted Commission to the one which imposed the penalty of dismissal. This is of some significance and I will therefore revert to this later.
The issues then arising were as follows:
-
(1) Did the Commission have the power to continue to hear disciplinary matters after the enactment of the amendment?
-
(2) Did the Board have jurisdiction to hear appeals?
-
(3) Did the newly constituted Commission have the power to dismiss the claimant?
There are two competing contentions regarding the claimant.
On the one hand, if he was validly dismissed by the newly constituted Commission, then it follows that he would have had a right to appeal this decision to the Board. In any event, he was denied this.
On the other hand, if the Commission had no jurisdiction to dismiss him at the time it did, then his purported dismissal would be a nullity. The consequence would be that he was never validly dismissed.
Mr. Martineau SC has urged a wider construction of section 11 (2) of the Act. He suggests that the words are plain. The effect was to preserve any disciplinary proceedings pending before the previous Commission and to allow for it to be continued before the newly constituted Commission.
The statute, however, did not expressly preserve any right of appeal to the Board, which the claimant would have been vested with at the time the charges were brought.
Mr. Martineau suggests that it...
To continue reading
Request your trial