REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No. 203 of 2011 BETWEEN THE POLICE SERVICE COMMISSION Appellant AND ABZAL MOHAMMED Respondent PANEL: N. Bereaux, J.A. G. Smith, J.A. M. Rajnauth-Lee, J.A. APPEARANCES: Mr. Russell Martineau S.C. leading Ms. Cherisse Nixon instructed by Ms. Deowattee Dilraj–Battoosingh for the Appellant Mr. Avory Sinanan S.C. leading Mr. Kelvin Ramkissoon instructed by Mr. Brent Samlal for the Respondent Date: 1 st May, 2013 ***************
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civil Appeal No. 203 of 2011
BETWEEN
THE POLICE SERVICE COMMISSION
Appellant
AND
ABZAL MOHAMMED
Respondent
PANEL: N. Bereaux, J.A.
G. Smith, J.A.
M. Rajnauth-Lee, J.A.
APPEARANCES:
Mr. Russell Martineau S.C. leading Ms. Cherisse Nixon instructed by Ms. Deowattee
Dilraj–Battoosingh for the Appellant
Mr. Avory Sinanan S.C. leading Mr. Kelvin Ramkissoon instructed by Mr. Brent Samlal
for the Respondent
Date: 1st May, 2013
***************
Page 2 of 17
I agree with the reasons of Rajnauth-Lee J.A. and have nothing to add.
N. Bereaux
Justice of Appeal
I too agree and have nothing to add.
G. Smith
Justice of Appeal
REASONS
Delivered by M. Rajnauth-Lee, J.A.
1. The respondent was a police officer who was dismissed by the Police Service
Commission. The key issues which arose in this appeal were as follows:
(i) whether in the absence of a grant of leave or amendment to the application for
judicial review, the judge ought to have allowed the respondent to mount a
challenge against the decision of the Police Service Commission to dismiss him;
(ii) whether the Police Service Commission had the power to hear disciplinary
proceedings against the respondent and to dismiss him after the Constitution
(Amendment) Act 2006 came into force; and
(iii) whether the respondent had a right of appeal to the Public Service Appeal Board
from the decision of the Police Service Commission after the Constitution
(Amendment) Act 2006 came into force; and
2. The judge below held that the respondent was not validly dismissed from the Police
Service of Trinidad and Tobago and that he was entitled to a declaration that his purported
dismissal was null and void. He ordered his reinstatement with the payment of any lost salary.
The judge found that the Police Service Commission had no power to hear disciplinary
Page 3 of 17
proceedings against the respondent or to dismiss him after the Constitution (Amendment) Act
2006 came into force. He was also of the view that the Public Service Appeal Board had no
jurisdiction to hear an appeal from the respondent’s dismissal and that they had correctly
declined to do so.
3. The Police Service Commission appealed the judge’s decision and on the 9th
November,
2012, we allowed the appeal, giving brief oral reasons. We found that the judge was plainly
wrong to consider the issue - whether the Police Service Commission had the power to hear
disciplinary proceedings against the respondent and to dismiss him after the Constitution
(Amendment) Act 2006 came into force - since it was not a live issue before him for which leave
had been granted. In our judgment, the appellant was prejudiced by being deprived of the
opportunity to meet this new case. In any event, we were of the view that the Police Service
Commission had the power to discipline police officers whose matters were pending before it on
the commencement date of the Constitution (Amendment) Act 2006 or on the effective date
provided for in section 123B of the Constitution1. We were also of the view that the
respondent’s right of appeal to the Public Service Appeal Board from the decision of the Police
Service Commission was not removed by sections 123, 123A and 123B of the Constitution. We
now give full reasons for our decision. Having regard to the importance of the issue of the
power to discipline after the Constitution (Amendment) Act 2006 came into force, we will
address that issue first.
Relevant facts and history
4. The following facts were not in dispute. The Police Service Commission had preferred
against the respondent two (2) disciplinary charges of discreditable conduct arising out of an
incident which took place on the 30th
May, 2003, at Sahadeen Trace, Vega de Oropouche, Sangre
Grande. The Police Service Commission found the respondent guilty of the charges.
5. By letter dated the 6th
August, 2008, the respondent was informed by the Director of
Personnel Administration that the Police Service Commission had noted that he had not
1 Section 11 of the Constitution (Amendment) Act 2006
Page 4 of 17
submitted any representations with respect to the penalty to be imposed on him as a consequence
of his being found guilty. The letter went on to inform the respondent that the Police Service
Commission had dismissed him with effect from the date of the receipt of the letter. The
respondent was also advised that, at that time, the Constitution did not provide for an appeal
from any decision of the Police Service Commission as a consequence of disciplinary
proceedings brought against him. He was informed however that amendments to the
Constitution were being pursued in that regard.
6. The respondent sought leave to apply for judicial review of the decision of the Police
Service Commission to deny and/or deprive him of his right to appeal the decision
communicated to him by letter dated the 6th
August, 2008. He was granted leave by the Court of
Appeal on the issue of the loss of his right to appeal to the Public Service Appeal Board which
was the only issue raised in the application for leave.
7. The Police Service Commission relied on the affidavit of Ms. Gloria Edwards-Joseph,
the Director of Personnel Administration. She deposed that the Public Service Appeal Board had
continued to advance the firm opinion to the Police Service Commission that police officers who
wished to appeal against disciplinary decisions should be directed not to lodge such appeals with
the Board. Ms. Edwards-Joseph further deposed that the Public Service Appeal Board had
indicated that it would have no alternative but to decline such appeals. According to Ms.
Edwards-Joseph, it was in the light of the position taken by the Public Service Appeal Board that
the Police Service Commission had advised in its letter of the 6th
November, 2008 that the
respondent did not have a right of appeal.
8. The Public Service Appeal Board was joined as an interested party. Caryll Sooklalsingh
deposed on behalf of the Board that as at the 29th
April, 2008, when the existence of the
Constitution (Amendment) Act 2006 was brought to the attention of the Public Service Appeal
Board, there were some ten (10) appeals pending before it. In its written submissions, the Public
Service Appeal Board contended for the first time in the proceedings before the trial judge that
the Police Service Commission, by virtue of the amendment, had no power to discipline the
respondent since it was a differently constituted body with no power to discipline regular police
Page 5 of 17
officers except by way of appeals from disciplinary decisions of the Commissioner of Police.
The Public Service Appeal Board maintained its position that it had no power to hear appeals of
police officers save for those appeals that were pending and provided for by section 123B(3) of
the Constitution.
Legislative and Historical Context
The Republican Constitution
9. The 1976 Republican Constitution which came into force on the 1st August, 1976
provided for the establishment of the Police Service Commission at section 122. Section 123 of
the 1976 Constitution gave the Police Service Commission power to appoint, promote, transfer,
remove and exercise disciplinary control over persons holding office in the Police Service.2 By
section 130 of the 1976 Constitution the Public Service Appeal Board was established. Section
132 enabled the Public Service Appeal Board to hear appeals from decisions of the Service
Commissions as a result of disciplinary proceedings brought against public officers. By the
Constitution (Amendment) Act, 1982, subsection (3) of section 132 was repealed and replaced
by a new subsection (3) which enlarged the powers and supervisory jurisdiction of the Public
Service Appeal Board over disciplinary decisions made by Service Commissions in relation to
public officers. 3
The Constitution (Amendment) Act 2006
10. The Constitution (Amendment) Act 2006 passed in accordance with section 54 of the
Constitution made substantial amendments to the constitutional provisions relating to the powers
of the Police Service Commission. It made significant changes to the process for the
2 The Police Service Commission had been created as a constitutionally independent body by the 1962 Constitution
(at sections 98 and 99) with a framework and powers similar to the 1976 Constitution. The 1962 Constitution however did not provide for an appeal board to hear appeals from the decisions of Service Commissions. 3 Paragraph 16 of the judgment of Jamadar JA in Omar Maraj v the Public Service Appeal Board [Civil Appeal No.
100 of 2006]
Page 6 of 17
appointment and removal of members of the Police Service Commission4 giving to the House of
Representatives a role in such appointments for the first time.
The new section 123 of the Constitution
11. The Constitution (Amendment) Act 2006 also made substantial changes to the procedure
by which police officers were to be disciplined. The old section 123 was repealed and replaced
by a new section 1235 which conferred various new powers on the Police Service Commission.
Notably, however, section 123(1)(c) limited the power of the Police Service Commission to
exercise original disciplinary control over police officers below the rank of Deputy
Commissioner of Police. The new section 123(1)(f) provided for appeals from the decisions of
the Commissioner of Police as a result of disciplinary proceedings to be made to the Police
Service Commission.
12. A new constitutional framework was established for the appointment of the
Commissioner and Deputy Commissioner of Police. The Police Service Commission was given
the power to nominate persons for appointment to the offices of Commissioner and Deputy
Commissioner of Police pursuant to section 123(2). The process for the appointment of the
Commissioner and the Deputy Commissioner of Police was laid out in subsections (3), (4) and
(5) of section 123 and for the first time the House of Representatives played a role in the
selection of the Commissioner and Deputy Commissioner of Police.6 The Police Service
Commission was also given the power to terminate the services of the Commissioner and Deputy
Commissioner of Police on the grounds set out at section 123(8) with power to prescribe the
procedure for such termination in accordance with section 129.7
13. The new subsection (10) of section 123 provided that there would be no appeals to the
Public Service Appeal Board where the Police Service Commission had acted under the powers
conferred on it by the new section 123. Accordingly, after the amendment, no appeals lay to the
4 Sections 4 and 5 of the Constitution(Amendment) Act 2006 [sections 122 and 122A of the Constitution]
5 Section 6 of the Constitution (Amendment) Act 2006
6 The Prime Minister’s right to veto the appointment of the Commissioner or Deputy Commissioner of Police was
removed. 7 Section 123(9)
Page 7 of 17
Public Service Appeal Board from any decision of the Police Service Commission in respect of
disciplinary action taken by the Police Service Commission against the Commissioner and
Deputy Commissioner of Police and in respect of appeals to the Police Service Commission from
disciplinary decisions of the Commissioner of Police.
The new section 123A
14. The 1976 Constitution was further amended by inserting after section 123 a new section
123A8 which provided for the Commissioner of Police to have complete power to manage the
Police Service. The Commissioner of Police was required to ensure that the human, financial and
material resources available to the Police Service were used in an efficient and effective
manner.9 By section 123A(2) the Commissioner of Police was given various powers including
the powers 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;10
(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).
15. In addition, section 123A(3) authorized the Commissioner of Police to exercise any of his
functions under section 123A 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. By
subsection (4), in the performance of his functions under section 123A, the Commissioner of
Police had to act in accordance with the Police Service Act and the regulations made thereunder.
The new section 123A therefore heralded significant changes in the procedure for the discipline
of police officers and in the powers to be exercised by the Commissioner of Police in
disciplining police officers.
8 Section 7 of the Constitutional (Amendment) Act 2006
9 Section 123A(1)
10 The power to make appointments on promotion is now shared with the Police Service Commission by virtue of
section 123(1)(b).
Page 8 of 17
Transitional and savings provisions – section 123B
16. As to the matters which were pending before the Police Service Commission and the
Public Service Appeal Board when the Constitution (Amendment) Act 2006 came into force,
certain transitional and savings provisions were enacted by way of section 123B11
which read 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 the 1st January 2007, and in any event 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 (i.e., 1st January 2007) 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.
Construction of section 123B of the Constitution
The right of appeal
17. The trial judge reasoned that, since section 123B did not expressly preserve any right of
appeal to the Public Service Appeal Board except in the limited circumstance set out in
subsection (3) - where appeals were pending before the Board at the commencement of the
11
Section 11 of the Constitutional (Amendment) Act 2006
Page 9 of 17
Constitution (Amendment) Act - Parliament did not intend to preserve, after the coming into
force of the amendment, the power of the Police Service Commission to discipline persons like
the respondent, namely persons who had been disciplined by the old Police Service Commission.
18. Section 123B(1) provided for all the members of the Police Service Commission,
appointed under section 122, to vacate their offices within six months after the 1st January, 2007,
that is, by the 2nd
July, 2007, the effective date specified in subsection (1) and referred to in
subsection (2). In our view, the reference in section 123B(1) to members of the Police Service
Commission appointed under section 122, must be to the members of the old Police Service
Commission appointed under the previous section 122. It would be absurd for Parliament to
have intended that, after the commencement of the Constitution (Amendment) Act 2006,
members of the new Police Service Commission would be appointed pursuant to the procedure
provided for in the new section 122, and thereafter those same members would be required to
vacate their offices as at the 2nd
July, 2007. In our judgment, Parliament allowed a six month
time frame for the appointment of the members of the new Police Service Commission having
regard to the procedure for such appointment provided for by the new section 122.
19. In our view, section 123B(2) contemplated that there would be matters (not limited to any
particular type of matter) pending before the Police Service Commission immediately before the
effective date of the 2nd
July, 2007, and that from the 2nd
July, 2007, such matters would be
continued before the new Police Service Commission. The question therefore arose: what was to
be the position of those matters, and in particular disciplinary matters, that were pending before
the old Police Service Commission immediately before the commencement date of the 1st
January, 2007?
20. By section 123B(3) the power of the Public Service Appeal Board to hear and determine
appeals filed and pending before the Public Service Appeal Board at the commencement date of
the 1st January, 2007, was expressly preserved [as though the Act had not been passed]. The
Constitution (Amendment) Act 2006 made no change to section 132 which defined the powers
and supervisory jurisdiction of the Public Service Appeal Board.
Page 10 of 17
21. The decision of the Privy Council in Public Service Appeal Board v Omar Maraj
[2010] UKPC 29 was of significance to this appeal and set out important guidelines as to how
constitutional amendments were to be construed.
22. Section 129 of the Constitution was amended by the Constitutional (Amendment) Act,
2000 which added subsection (5) to the effect that where an officer was convicted of a criminal
charge a Commission might consider the relevant proceedings and punish the officer without the
institution of any disciplinary proceedings. The amendment had not expressly given to the
officer the right to appeal to the Public Service Appeal Board and the respondent had brought
judicial review proceedings to have the court review the decision of the Public Service Appeal
Board which alleged that it had no jurisdiction to consider such an appeal.
23. The Privy Council, affirming the decision of the Court of Appeal, held that there was
absolutely no reason to believe that Parliament intended to deprive those officers who were dealt
with under the new summary process pursuant to section 129(5) of the right of appeal which they
had all enjoyed prior to the 2000 amendment.12
In addition, Lady Hale made it clear13
that the
question in the case was not whether a constitutional right had been violated but whether an
enactment should be construed in such a way as to avoid such a violation. Lady Hale expressed
the view that whilst the constitutionality of a parliamentary enactment was presumed unless it
was shown to be unconstitutional14
, the Constitution must be given a broad and purposive
construction15
. Accordingly, a court should presume that Parliament intended to legislate for a
purpose which was consistent with the fundamental rights and not in violation of them. In those
circumstances, the right of appeal had been preserved.
12
Paragraph 22 of the judgment of Lady Hale 13
Paragraph 29 14
Grant v The Queen [2007] 1 AC 1, paragraph 15 15
Minister of Home Affairs v Fisher [1980] AC 319, 328
Page 11 of 17
24. The Interpretation Act Chap. 3:01 made provision for the repeal and amendment of any
written law. Section 27 subsection (1)(c) and (e) of the Act provides as follows:
“Where any written law repeals or revokes a written law, the repeal or revocation does
not, except as in this section otherwise provided, and unless the contrary intention
appears –
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred
under the written law so repealed or revoked;
(e) affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as mentioned
above,
and any such investigation, legal proceeding or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or punishment may be imposed, as if the
written law had not been repealed or revoked.”
25. Further, section 27 subsection (4) provides:
“The inclusion in the repealing provisions of a written law of any express saving with
respect to the repeals effected thereby shall not be taken to prejudice the operation of this
section with respect to the operation of those repeals.”
26. Section 27 of the Interpretation Act was applied by the Court of Appeal in Central
Broadcasting Services Ltd and Another v Attorney General [Civil Appeal No. 16 of 2004].
In that case, the regime for the grant of licences was changed when the Wireless Telegraphy
Ordinance 1936 was replaced by the Telecommunications Act 2001 (“the 2001 Act”). Section
85 of the 2001 Act (the transitional provisions) made no mention of pending applications and
nowhere in the 2001 Act was there any provision made in respect of applications pending at the
time of the commencement of the 2001 Act. The Court of Appeal held that the transitional
Page 12 of 17
provisions of the 2001 Act preserved the power of the President, acting on the advice of Cabinet,
to grant licences in respect of pending applications so that Cabinet might continue to deal with
CBSL’s pending application. The Privy Council did not disturb this finding.
27. In our view, the effect of the above decisions and the provisions of the Interpretation Act
was two-fold. Firstly, there was no good reason to believe that Parliament intended by section
123B subsections (1) (2) and (3) to deprive the respondent of his right of appeal from the
decision of the Police Service Commission to the Public Service Appeal Board, which right he
previously enjoyed prior to the Constitutional (Amendment) Act 2006.16
The respondent’s right
of appeal from a decision of the Police Service Commission to the Public Service Appeal Board,
was a right which had been acquired or accrued under the previous law and could not be affected
by the repeal of the old section 123.
28. We were also of the view that no contrary intention had been shown in the amending
provisions. Parliament had made it clear by the amended section 123(10) that the restriction on
the right of appeal from a decision of the Police Service Commission to the Public Service
Appeal Board was in respect of decisions made by the new Police Service Commission under the
new section 123.17
Under the new regime, appeals from the Commissioner of Police were to be
made to the Police Service Commission and consequently there was no necessity for appeals to
the Public Service Appeal Board.
29. Further, by section 123B(3), provision was made for those appeals pending before the
Public Service Appeal Board at the commencement date of the Act to be heard and determined
by the Board after the commencement of the Act. Therefore, there was no intention for the
immediate cessation of the right of appeal to the Public Service Appeal Board. In our judgment,
the trial judge was wrong to conclude that since Parliament had expressly provided for the right
of appeal to the Public Service Appeal Board where appeals were pending before the Public
Service Appeal Board at the commencement of Constitution (Amendment) Act 2006, and not
otherwise, it did not intend, after the coming into force of that amendment, to preserve the
16
Section 132 of the Constitution 17
See paragraph 9 of this judgment
Page 13 of 17
power of the Police Service Commission to discipline persons whose matters were pending
before the Commission at the commencement date.
30. Secondly, applying a broad and purposive construction, the provisions of section 123B of
the Constitution gave the Police Service Commission the power to continue to hear and
determine such disciplinary matters which were pending before them immediately prior to the
commencement of the Constitution (Amendment) Act 2006.
31. The trial judge also reasoned that since the power to discipline police officers after the 1st
January, 2007, was vested in the Commissioner of Police, it meant that proceedings pending
before the Police Service Commission had to be started afresh. This, he reasoned, was the
consequence of the Constitution (Amendment) Act 2006 and was the least offensive construction
so far as the rights of persons with pending disciplinary charges were concerned. In our
judgment, that position was plainly wrong.
32. The old disciplinary procedure for the hearing of disciplinary charges against police
officers was regulated by Chapter VIII of the Police Service Commission Regulations Chap.
1:01. The Police Service Commission was empowered to appoint a disciplinary tribunal which
heard the evidence and made findings of fact which were contained in a report to the
Commission.18
The Commission was empowered to impose a penalty under Regulation 101. It
was important to understand that the Police Service Commission did not itself hear the evidence
against an officer. It was therefore difficult to accept, given the regulatory framework for the
discipline of police officers, that Parliament intended that all disciplinary matters pending before
the Police Service Commission at the commencement of the Constitution (Amendment) Act
2006 should have been started de novo before the Commissioner of Police. In our view, the trial
judge was wrong to come to that conclusion.
18
Regulation 96
Page 14 of 17
The Decision to Dismiss the Respondent
No leave granted to review the respondent’s dismissal
33. Mr. Martineau S.C. on behalf of the appellant contended that the trial judge was wrong to
deal with the legality of the appellant’s decision to dismiss the respondent from the Police
Service. The appellant submitted that no leave was granted to the respondent to review the
decision of the Police Service Commission to dismiss him. As we noted at paragraph 6 of this
judgment, the Court of Appeal granted leave to the respondent to apply for judicial review only
in respect of the issue of the loss of his right of appeal to the Public Service Appeal Board. It
was not disputed before us that no amendment to the claim was sought or granted to challenge
the decision of the Police Service Commission to dismiss the respondent.
34. The importance of setting out the grounds in an application for judicial review has been
highlighted by the Privy Council in the case of Malcolm Johnatty v The Attorney General of
Trinidad and Tobago [2008] UKPC 55. In that case, there was a sharp conflict between the
parties on the facts to such an extent that the basis for the orders sought by the appellant would
be wholly undermined if the trial judge accepted the respondent’s version of the facts.
Nevertheless, the appellant did not seek to amend his application for judicial review. Lord Hope
who gave the judgment of the Board referred to section 5(4) of the Judicial Review Act Chap.
7:08 which provides:
“An applicant is not limited to the grounds set out in the application for judicial review
but if the applicant wishes to rely on any other ground not so set out, the Court may, on
such terms as it thinks fit, direct that the application be amended to specify such other
ground.”
35. Lord Hope was of the view that the appellant could have sought permission to alter the
grounds for his application when the affidavit evidence was filed.19
He had however to seek the
permission of the court if he wished to amend his application pursuant to section 5(4). The court
in its discretion would decide whether or not to permit an amendment and if so on what terms. It
19
See paragraph 18 of the judgment
Page 15 of 17
was pointed out that the appellant did not make use of that procedure, and having failed to do so,
he could not then raise this new issue. According to Lord Hope, the mere raising of an issue was
not the same thing as applying for leave to amend.
36. We were therefore of the view that in the absence of a grant of leave to amend the
application, the trial judge was wrong to allow the respondent to raise in his submissions the
question of the legality of the appellant’s decision to dismiss him. It was not a live issue before
him. In addition, the trial judge failed to take into account the issue of delay. Some thirty-two
(32) months had elapsed from the date when the decision of the Police Service Commission was
communicated to the respondent, and the 31st March, 2011, when his submissions were filed in
the High Court, raising for the first time the issue of the legality of his dismissal. The respondent
was therefore raising a different issue and seeking to challenge a completely different decision.
37. Further, the trial judge was of the view that there was no contention on the facts and that
the issue of the jurisdiction of the Police Service Commission was a question of law for which
each party had had the opportunity to make submissions.20
He relied on section 20 of the
Supreme Court of Judicature Act Chap. 4:01 as empowering him to make a decision on a point
of law even in the absence of a pleading.21
38. However, leave to apply for judicial review had been granted only in respect of the issue
of the loss of the respondent’s right of appeal to the Public Service Appeal Board. The Police
Service Commission had come to meet that specific case and had placed before the trial judge
only such evidence as was relevant to that sole issue. The appellant was clearly prejudiced by
being deprived of the opportunity to meet what was in effect a new case. Further, there was no
evidence as to whether the old or the new commission or a differently constituted commission
made the finding of guilt or imposed the penalty of dismissal. There was also no evidence as to
when the decision to dismiss was made, and whether such decision was made prior to the
commencement of the Constitution (Amendment) Act 2006. These were questions that might
have been answered if the issue of the respondent’s dismissal had been frontally raised.
20
See page 13 of his judgment 21
See page 14 of his judgment
Page 16 of 17
39. We were therefore of the view that the trial judge was plainly wrong to conclude (i) that
the Commission which made the finding of guilt was a differently constituted Commission to the
one which imposed the penalty and (ii) that disciplinary charges had been brought against the
respondent some time before the year 2005. The trial judge’s position that there was no
contention on the facts and that the issue of the legality of the respondent’s dismissal was only a
question of law was also wrong.
40. As we conclude we wish to make this observation. The respondent could not have
launched judicial review proceedings challenging the decision of the Police Service Commission
to dismiss him without making representations to the Commission and without seeking to
persuade it not to dismiss him. The appellant by letter dated the 6th
August, 2008 had noted that
the respondent did not submit any representations with respect to the penalty to be imposed on
him as a consequence of his having been found guilty of the disciplinary charges. In those
circumstances, we were of the view that a court could in the exercise of its discretion refuse to
grant relief.22
Cross Appeal
41. At the request of Mr. Sinanan S.C. on behalf of the respondent, we granted leave (without
objection) to the respondent to cross appeal on the ground that the trial judge was wrong to
conclude that the Public Service Appeal Board had no jurisdiction to hear an appeal from the
respondent as to his dismissal by the Police Service Commission. In view of our conclusions at
paragraphs 27, 28 and 29, we allowed the cross appeal since the respondent’s right of appeal to
the Public Service Appeal Board from the decision of the Police Service Commission had not
been removed by sections 123, 123A and 123B of the Constitution. Rather, the right was indeed
preserved.
22
See paragraph 29 of the judgment of Gopichand Ganga and others v Commissioner of Police/Police Service Commission [2011] UKPC 28
Page 17 of 17
DECISION
42. In the circumstances, we allowed the appeal and the cross appeal and set aside the order
of the trial judge. After hearing submissions as to costs, we ordered that the respondent pay to
the appellant costs of the appeal to be assessed by the Registrar. We also ordered that there be
no order as to the costs below and on the cross appeal.