Re Harrideo Sookdeo
| Jurisdiction | Trinidad & Tobago |
| Judge | Persad-Maharaj, J. |
| Judgment Date | 06 December 1995 |
| Neutral Citation | TT 1995 HC 134 |
| Docket Number | No. 2091 of 1994 |
| Court | High Court (Trinidad and Tobago) |
| Date | 06 December 1995 |
High Court
Persad-Maharaj, J.
No. 2091 of 1994
Mrs. D. Peake for the appellant.
Ms. Jacqueline Wilson for the respondent.
Judicial review - Application for orders of certiorari and prohibition — Applicant had been ordered by Hospital Manager II to pay for the month of May for alleged absence without leave — Applicant had applied for extended sick leave — Applicant desiring to have the period he applied for provisionally offset against his earned vacation leave while his application was being determined by the Chief Personnel Officer.
Authorities and Text referred to by Ms. Jacqueline Wilson.
1. Maxwell on the Interpretation of Statute at p. 47.
2. Cranes on Statute Law 12th edition at pages 159, 160.
3. Supperstone and Goudie Supra at pages 298, 299.
4. Clayton and Tomlinson — Judicial Review (1993) at pages 55, 56, 57, 58 and 59.
5. Lewis on Judicial Review above at p. 283, 284, and 285.
6. Marco's Leisure v. West Lothian District Licensing Board, reported in The Time Law Reports on 14th January, 1993 and a decision of Lord Marnoch.
7. R. Secretary of State for Foreign and Commonwealth Affairs ex-parte Everett [1989] 1 All E.R. at p. 659.
8. Williams v. Home Office (No:2) [1981] 1 All E.R.. at p. 1248.
9. Ainsbury v. Millington [1987] 1 All E.R. p. 930.
10. O'Reilly v. Mackman and others [1982] 3 All E.R. 680, 681, and 693.
11. Francis Eustace Bernard and Nydia Bernard for J.R and The Comptroller of Customs and Excise H.C.A. No: 4771 of 1983 at pages 1, 2, 4, 5, 6 and 7.
12. Attorney General v. Whiteman above, 39 W.I.R. at P. 412.
On the 15th day of July, 1994 Best, J., granted the applicant leave file Judicial Review. The applicants statement filed pursuant to O. 53 r. 3 of the R.S.C. 1975 was dated and filed on the 5/7/94. The affidavit and exhibits in support were filed and sworn to on the said date.
This motion was filed and dated the 18/7/94. The reliefs claimed in the statement and in the motion are set out thus:–
(a) An order for certiorari to remove into the High Court of Justice and quash the decision of the Hospital Manager II Caura Hospital, Ministry of Health to order the applicant to pay for the month of May 1994 exclusive of the days 3rd May, 4th May, 1994, 15th May, 1994, 21st to 24th (inclusive) May, 1994 and 31st May, 1994 for alleged absence without leave.
(b) An order of prohibition restraining the Hospital Manager 11, Caura Hospital, Ministry of Health whether by herself her servants or agents or otherwise however from not paying the applicant his full month's salary as a motor vehicle driver, Ministry of Health without first giving him an opportunity to be heard in respect of any alleged absences without leave and where he has applied for extended sick leave without first giving the applicant the option of having the period he applies for provisionally offset against his earned vacation leave while his application is being determined by the Chief Personnel Officer.
(c) A declaration that the said decision of the Hospital Manager II, Caura Hospital, Ministry of Health is Null and Void and of no effect.
(d) Damages.
(e) Exemplary Damages.
(f) Interest.
(g) Such further and or other relief as to this honourable court may seem just.
Paragraph (a) to (k) inclusive sets out in the motion the grounds upon which it is based.
(a) The applicant filed his first affidavit in support in respect for the leave sought on the 5th July, 1994, Exhibits H.S.1, to H.S.5 respectively were annexed thereto. This affidavit was also relied on in the motion above.
RESPONDENT
(b) The respondent relied on three (3) affidavits namely:–
(i) That of Ms. Wendy Leonard, Temporary Clerk, Ministry of Health, dated the 24th and filed on the 25/10/94. This deponent relied on exhibit G.C.3 and G.C.5 annexed to the affidavit set out in (ii) infra.
(ii) The affidavit of Mrs. Gloria Charles, Acting Hospital Manager of the Caura Hospital, Royal Road, Caura and exhibits G.C.1 to G.C.7 inclusive.
(iii) The affidavit of Ramnarine Ramberan,, Acting Accountant I dated the 28th and filed on the 31/10/94 together with exhibits annexed thereto and marked “V.R.1” “V.R.1”.
The applicant relied on his affidavit in reply dated 10th October, 1995 and filed on even date.
(a) The applicant filed an exhibit H.G.3. This was also exhibited to Mr. Ramberan's affidavit and marked V.R.2 and also marked G.C.6 to Gloria Charles affidavit.
(b) The applicants exhibited four (4) medical certificates dated 3rd, 15th, 21st and 31st May, 1995 and marked H.G.4 while Mrs. Gloria Charles exhibited the medical certificates for the 15th and 21st may, 1994 and marked G.C.4.
The applicant is employed as a motor vehicle driver at the Caura Hospital and with the Ministry of Health. His terms of employment are governed by the Civil Service Act, Chapter 23.01 (hereinafter called the Act) and by the Civil Service Regulations, (herein after called “the Regulation”). It appears that he began his employment on the 13th day of August, 1993. He was engaged as a shift worker.
His gross salary was $2,414.20 inclusive of COLA. His lawful deductions were $466.62 and his net salary per month was $1,947.58 or thereabouts. Mr. Sookdeo's net salary was paid by his employers into the applicant's bank account at the Republic Bank Limited, Tunapuna Branch.
More particularly in compliance with Regulation 39 (1) the applicant received his pay by the penultimate day of each month without unauthorised deductions therefrom. Both the applicant and the respondents attorneys did not dispute this Regulation save for the points raised infra.
It appears that the applicants work attendance by the 28th was irregular and that his normal sick leave of fourteen (14) days was exhausted. See section 85(1) of the Regulation. That his eligibility as at the 2nd March 1994, was three (3) days vacation leave. As such, by, letter dated the 28th day of March, 1994 the applicant was advised by Mrs. Gloria Charles (herein after called “the Hospital Manager”) that the return of personnel would be sent at the end of each month for the preparation of his salary. See V.R.1.
Paragraph 5 and 6 of Mr. Rambaran's affidavit vividly describes what is the “Return of Personnel” for employees, who prepares it and to which department it is sent and how employees payments are made.
As this Court understands it the Return of Personnel is prepared by the Personnel department at the Caura Hospital. This is done in the early part of the relevant month in which the employee is paid. Exhibit G.C.5 partially gives a clear view of the contracts therein. This document is then sent from the Caura Hospital department to the Insect Vector Control Division of the Ministry of Health at St. Joseph. That is the Pay-Master's Department where the employee's cheque is prepared on computer in order to meet payment by the end of that relevant month.
By virtue of V.R.1, which was signed by the Hospital Manager, it appears that the above procedure was altered in the case of the applicant at least for the month of May and or June, 1994. That is, instead of the applicant's Return of Personnel being prepared at the beginning of each month and sent in the early part thereof it was prepared at the Caura Hospital, Personnel Department at the end of the month or soon thereafter and then sent to the relevant Pay -Master's division.
This court understood this change of procedure because the respondents department had had two (2) circular memoranda, one dated 14/2/80 and the other dated 25/10/88 from the Chief Personnel Officer mandating the relevant authorities not to overpay, employees whose normal sick leave was exhausted and their annual vacation leave was less than the additional sick leave they had taken. A careful reading of H.G.5 and H.G.6 would clear up the over payment of officers subject; however, to the option embodied therein.
It is these two (2) memoranda and the options seat out therein that had irresistibly urged the Attorneys in this case to give different meaning or interpretation about them.
Because of the applicant's irregularity at work, his records were removed from the computer and prepared by hand at the Pay-Master's Division at St. Joseph.
When the applicant did not receive his pay at the end of May, 1995 or soon thereafter, he approached the Hospital Manager on the 3rd June, 1994. The essence of the applicant's conversation and her reply is carefully detailed in paragraph 6 of his affidavit dated 5/7/94 (hereafter called “his first affidavit”).
Paragraph 7 of his first affidavit again shows that the applicant was dilatory in making enquiries about the late payment of his salary, this is understandable.
Exhibit H.G.2 shows clearly that the applicant did not receive his full salary for May, 1994. Further he was complaining to the appropriate authority that he had received a short payment, that is, $623.03 or thereabouts.
By the 17th June, 1992 (sic) (which attorneys agreed should read 1994) the applicant was invited by the Personnel Department of the Caura Hospital and or by the Thoracic Medical...
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