THE Guyana Court of Appeal had, in 2003, declared that a High Court Judge was right when he ruled that the Public Service Appellate Tribunal had erred when it allowed an appeal by Dwarka Nauth, a Social Security Officer of the Regional Council.
Nauth, an employee of the Regional Council, was at the time protesting his dismissal from an acting appointment with the Public Service Commission; but, instead of citing the REO for wrongful dismissal, he cited the Public Service Commission via the Attorney General.
The facts of the case disclosed that the appellant, a Social Security Officer in the Regional Council, had been appointed by the Public Service Commission to act as Assistant Hospital Administrator from March 1st 1994 until the end of 1995, when he was reverted to his position as a Social Security Officer in the Regional Council.
The appellant’s services were terminated by the Regional Executive Officer with effect from September 1, 2000, and he appealed to the Public Service Appellate Tribunal, which allowed his appeal in 2003.
He then claimed from the respondents the sum of $5,096,353.00 with interest, which would have been salary earned between January 1st, 1996 and March 31, 2003.
The trial judge denied Nauth’s claim on ground that the Appellate Tribunal had no jurisdiction to determine his appeal. Nauth then appealed to the Court of Appeal, constituted by Justices of Appeal Singh, Kissoon and Chang, JJ.A.
The Court of Appeal found as follows: The position of Social Security Officer was not employed by the Public Service Commission, but was a Regional Council position. In the circumstances, the Public Service Commission did not have jurisdiction to pronounce on the termination of the appellant’s services, and its decision was therefore a nullity. Decision of trial judge upheld.
Mr. Benjamin Gibson appeared for the appellant; Mr Doodnauth Singh, SC, appeared for the Attorney General, while Mr. Younge appeared for the respondents.
Justice of Appeal Singh delivered the judgment. According to the judgment, Dwarka Nauth, the appellant, by way of a specially indorsed writ, was claiming the sum of $5,096,353.00 with interest against the respondents. This amount represented the salary he would have earned as a Social Security Officer for the period January 1st, 1996 to March 31st 2003, had his services not been terminated by the Regional Executive Officer on January 1st 1996.
He appealed the decision to the Public Service Appellate Tribunal, which allowed his appeal on March 21st 2003; it was on the basis of that decision that his services were unlawfully terminated. He claimed the abovementioned amount as salary.
The trial judge denied his claim on the ground that the Appellate Tribunal had no jurisdiction to determine his appeal.
At the trial, the appellant testified that he was Social a Security Officer in Region 2, and was appointed by the Public Service Commission to act as an Assistant Hospital Administrator with effect from March 1st 1994.
He worked until 1995, when he was interdicted from duty on a charge of forgery.
During this period, he received three-quarters (¾) of his salary (see letter from Secretary of the Public Service Commission at page 55 of the record).
At page 56 of the record, there is a letter (Ex D) addressed to the appellant which makes it crystal clear that his acting appointment had been terminated. The letter read: “Since you are not performing the duties of Assistant Hospital Administrator at present, you cannot be paid any portion of the acting allowance.”
It is obvious that, after he had been interdicted, his acting appointment had come to an abrupt end and he had been reverted to his former position of a Social Security Officer.
On April 10th, 2000, the charge against him was dismissed. On June 26th, 2000, his counsel, by letter, so informed the Public Service Commission and the Regional Executive Officer (see page 61 of record). On August 9th, 2000, the Deputy Regional Executive Officer wrote, inviting him to “discuss your future employment”. On August 31, 2000, he received a letter, of which paragraph 3 read: “It is with regret therefore that I have to inform you that your service is hereby terminated with effect from September 1st, 2000”.
Nauth then appealed this decision to the Appellate Tribunal. At page 46 of the record is an affidavit in support of his notice of appeal to that tribunal. At paragraph 20, he deposed: “The
Regional Council have compounded their ultra vires act by removing me from an office the jurisdiction of which is vested solely in the Public Service Commission.”
At paragraph 22, he further deposed: “That in the circumstances and the foregoing. I appeal to the Appellate Tribunal to protect my rights.”
Mr. Gibson argued that the Appellate Tribunal was a constitutional body, and its decisions were final. He argued, moreover, that the trial judge acted not only ultra vires, but unconstitutionally in finding that the appellant was not a public officer.
The Attorney General submitted that the Public Service Commission had no jurisdiction over the appellant, since, upon his interdiction, his acting appointment came to an end, in that he had been reverted to his former position as a temporary Social Security Officer.
The Guyana Court of Appeal held that the ruling of the Appellate Tribunal was a nullity, and affirmed the judgment of the trial judge.
The Court of Appeal also noted that the appellant adopted the wrong procedure in not suing the Regional Executive Officer (REO) for wrongful dismissal.
The respondents were awarded costs in the sum of $10,000.
In 2003, the Court of Appeal declared that a High Court Judge was right when he ruled that the Public Service Appellate Tribunal had erred when it allowed an appeal by Dwarka Nauth, a Social Security Officer of the Regional Council. Nauth, an employee of the Regional Council, was at the time protesting his dismissal from an acting appointment with the Public Service Commission; but, instead of citing the REO for wrongful dismissal, he cited the Public Service Commission via the Attorney General.
By George Barclay
