Director of Social Security Fund v Public Service Appeals Board (Civil Side No. 162 of 2010 ) [2011] SCSC 46 (28 July 2011);

THE REPUBLIC OF SEYCHELLES

IN THE SUPREME COURT OF SEYCHELLES HOLDEN AT VICTORIA

Civil Side No. 162 of 2010

Director of Social Security Fund == ====== ===Petitioner

 

versus

 

Public Service Appeals Board ====== ===~=Respondent

 

Divino Sabino for the Petitioner David Esparon for the Respondent

 

 

 

 

JUDGMENT

 

 

Egonda-Ntende, CJ

[1] The Petitioner has come to this court by way of judicial review in exercise of this court's jurisdiction under article 125 of the Constitution of Seychelles. He is aggrieved by the decision of the Respondent, a constitutional body, in entertaining a complaint of one Tina Charles, a cashier with the Ministry of Finance, whose employment had been terminated by the Principal Secretary of that Ministry on grounds of gross negligence and in the interest of the organisation.

 

 

[2] The letter terminating Ms Charles read in part,

 

 

'Reference is made to the hearing held on 28 September 2009. Based on the evidence gathered on file and during the hearing, this is to inform you that your actions have led to gross negligence and you are being terminated from the service in the interest of the organisation, with

immediate effect. Upon termination, you will be paid all your terminal benefits, details of which will be shown under separate cover.'

[3] Ms Charles lodged a complaint with the Respondent which after hearing her and her employers, concluded,

 

 

'We do not condone the behaviour of the Complainant. However, after careful consideration we feel that the complainant should be given another chance. There are other effective modes of punishment available to the Authority. Our view is that the Complainant must pay for her gross negligence through a forfeiture of five days salary, refund of the cash shortages and that she is given a strong worded warning. We make the following order:

1. That the letter of termination issued on 23rd October 2009 by the Social Security Fund is withdrawn.

2. That the cash shortages are refunded by the Complainant.

3. That 5 days salary is forfeited from the Complainant's salary.

4. That the Complainant is issued with a strong warning letter.'

[4] The decision of the Respondent is attacked on three grounds. First under attack is the order to withdrawal the termination letter on the twin grounds that it is vague as it does not necessarily mean reinstatement. At the same time it is irrational given Ms Charles had committed a serious disciplinary offence. Secondly the order to refund cash shortages was lacking for not detailing the amount and was therefore procedurally improper. Lastly that the respondent acted improperly in violation of Order 120 of the Public Service Orders that would have required the complainant to first appeal to the Principal Secretary responsible for Public Administration and then to the Minister before appealing to the respondent. At the hearing of this petition Mr Sabino Divino, learned counsel for the Petitioner regurgitated the said points.

 

 

[5] The Respondent opposed this application, asserting that it had made its decision within the law, without any procedural impropriety. It put the petitioner to strict proof of its claims. During the hearing of this matter, Mr David Esparon, the learned Principal State Counsel, appearing for the Respondent, vigorously submitted that this petition had no merit as it was attacking the merits of the decision of the respondent rather than any procedural impropriety or irrationality.

 

 

[6] There is little attraction in the arguments put forth by Mr Sabino Divino. There is nothing vague in the order directing a withdrawal of the termination letter. Once withdrawn the status of the subject is clear. It is the status that he or she enjoyed prior to the issuance of the letter. Neither is it irrational in anyway. The Petitioner had found the subject guilty of gross negligence. The Respondent agrees with that finding. They differ only on punishment. It is not the duty of this court to sit on appeal on the decision of the Respondent much as it may be possible I could reach a different decision.

 

 

[7] The order requiring the complainant to refund cash shortages is attacked for not specifying the sums in question. The question of cash shortage was not averted to in the termination letter and I can only presume it must have arose during the hearing before the respondent. This is up to the petitioner. If there is no cash shortage, it need not recover anything. If there is a cash shortage, it should determine the amount and recover the same.

 

 

[8] With regard to the contention that the Respondent acted with procedural impropriety in so far as Ms Tina Charles had not exhausted her avenues for appeal before the Respondent would be seized with the jurisdiction to handle her complaint, Mr Divino Sabino, submitted that under Order 120 of the Public Service Orders an aggrieved government employee had to appeal first to the Principal Secretary of Ministry of Administration and Manpower Development, then to the Minister, before an appeal or a complaint could lie with the Public Service Appeals Board. As the aggrieved employee in this case had not appealed the decision to the Principal Secretary and to the Minister, an appeal before the respondent was procedurally improper.

 

[9] The Public Service Appeals Board is a creature of the Constitution. . Article 145(1) provides,

 

There shall be a Public Service Appeal Board which shall perform the functions conferred upon it by this Constitution and any other law.'

[ 10] The functions are provided for in article 146( 1) as:

 

'The Public Service Appeal Board shall hear complaints by persons aggrieved by-

(a)

(b)

(c)

(d) the termination of appointment of a person who was holding an office.

(e) in the public service.

(2)

(3)

(4)

(5)

(6) A complaint made under this Article shall not affect the right of the complainant or other person to take legal or any other proceeding under any other law.'

 

[11] It would appear to me that by virtue of the foregoing constitutional provisions raising a complaint before the Respondent is constitutionally protected, regardless of other remedies a party may have. This, in my view, includes remedies provided for under the Public Service Orders. A procedure provided for in those orders cannot override a constitutionally mandated avenue to a party to seek redress.

 

[12] I need not point out that the Public Standing Orders are not a legislative enactment and on their own face 'have no legislative force.' Chapter 1, Order 1(c) states in part,

'It is emphasised that although these Orders have no legislative force, they are published by authority of the President. Whereas the provisions of these Orders are normally consistent with legislation, should they be in any way at variance with the terms of any legislation, the terms of such legislation will naturally prevail.'

[13] The Constitution provides an unfettered access to the Public Service Appeal Board by those with complaints, relating to the areas set out in the Constitution, regardless of any existing avenue under any other law or instrument. In the result I reject the claim that the Respondent acted with procedural impropriety in entertaining the complaint it did. The Respondent was well within their jurisdiction to entertain the complainant's complaint.

 

[14] This petition has no merit. It is dismissed with costs.

 

Signed, dated and delivered at Victoria this 29th day of July 2011

 

FMS Egonda-Ntende

Chief Justice