Appellant adopted wrong procedure

THE facts of the case disclosed that the Appellant Dwarka Nauth , a Social Security Officer in

the Regional Council , was appointed by the Public Service Commission to act as Assistant Hospital Administrator from March 1, 1994 until the end of 1995, when he 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.

He appealed to the Public Service Appellate tribunal which allowed the appeal in 2003. He then claimed the sum of $5, 096, 353.00 from the respondents with interest, which would have been salary earned between January 1, 1996 and March 31. 2003. The trial judge denied his claim on the ground that the Appellate Tribunal had no jurisdiction to determine his appeal. He then appealed to the Court of Appeal.
Held: The position of Social Security Officer was not employed by the Public Service Commission, but 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.
The Appellate Tribunal in this case was of the view that there was a decision of the service comission terminating the Appellant’s services while the decision was that of the REO. In the circumstances, it had no jurisdiction to make any pronouncement and as such its decision was a nullity.

The Appellant had adopted the wrong procedure in not suing the REO for wrongful dismissal. The decision of the learned judge was accordingly upheld.
Costs in the sum of $10,000 to the Respondents.
Mr. Gibson for the Appellant.
Mr. Doodnauth Singh, S.C., Attorney General for the Respondents.
Justice of Appeal Singh delivered the judgment of the Court: Dwarka Nauth, the Appellant, by way of a specially endorsed writ, claimed the sum of $5,096,353 with interests against the Respondents. This amount represents the salary he would have earned as a Social Security Officer for the period Jan 1st. 1996 to March 31st , 2003 , had his services not been terminated by the Regional Executive Officer (REO) On January 1st , 1996.

Nauth appealed the decision to the Public Service Appellate Tribunal which allowed the appeal on March 21st , 2303. It was on the basis of that decision that his services were unlawfully terminated. He claimed the above-mentioned 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 had testified that he was a Social Security Officer in Region Two 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 of his salary (see letter from the Secretary of the Public Service Commission at page 55 of the record.) At page 56 of the record 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, 2000 at present, you cannot be paid any portion of the acting allowance.”

It is obvious that after he was interdicted his acting appointment came to an abrupt end and he reverted to his former position as 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 31st 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.”

He then appealed this decision to the Appellate Tribunal. At page 46 of the record is an affidavit in support of the 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 decision was final. 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 reverted to his former position as a temporary Social Security Officer.
Concluding the judgment of the Guyana Court of Appeal, Justice Singh said: “ I find the dictum of Lord Diplock in the case of O’Reilly v. Mackman [ 1983] 2 AC 237 at 278 apt and instructive.

“The breakthrough that Anisminic made was the recognition by the majority of this House that if a tribunal (…) mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question ,i.e one into which it was not empowered to enquire and so had no jurisdiction to determine . Its purported determination, not being the ‘determination’, within the meaning of the empowering legislation, was accordingly a nullity.
“I adopt this pronouncement of the learned Law Lord.

The Appellate Tribunal in this case was of the view that there was a decision of the Public Service Commission terminating the Appellant’s services while the decision was that of the REO. In the circumstances, it had no jurisdiction to make any pronouncement and as such its decision was a nullity.
“The Appellant adopted the wrong procedure in not suing the REO for wrongful dismissal. The decision of the learned trial judge is accordingly upheld.”