Acting Chief Justice Ian Chang has ordered Education Minister Shaik Baksh to restore former Queen’s College headmistress Freidel Isaacs to the status of retired principal, after finding that she was dismissed without a hearing.
The Minister’s decision to terminate Isaac’s services two days before she was due to retire and demote her from Graduate Headmistress (Senior Secondary) to Gra-duate Deputy Headmistress (Grade A) had been quashed temporarily, but the ruling last week made the order absolute.
Justice Chang called on Baksh to take the necessary steps with respect to the court’s ruling.
Isaacs’ service was terminated over her handling of the abuse of Neesa Gopaul, whose murder in October sparked widespread public anger.
But Isaacs filed the court action through her attorney Anil Nandlall, saying that she lost pension benefits as a Graduate Headmistress (Senior Secondary School) and would receive pension at a lower rate, as a result of the demotion. Her services were terminated under Section 11 (i) of the President’s College Act, No. 11 of 1990 and according to her, the Minister of Education did not have the power or authority, under the Act, to terminate her services and or demote her.
Isaacs, in the Affidavit in Support of the motion, detailed interventions she made on Gopaul’s behalf and she had argued that no charge of any kind, including dereliction of duty, had been brought against her and that she remained ignorant of the particulars of the matter of which she had been found guilty.
Justice Chang, in his ruling, questioned whether Baksh was under a common law duty to afford Isaacs an opportunity of being heard before he exercised his statutory power of removing her from office. He said that since the exercise of such a statutory power would directly and adversely affect both the livelihood and the professional life of Isaacs, the court had no difficulty in finding that “the attainment of procedural fairness would necessitate an implication that the Minister must afford to the office holder an opportunity of being heard before he exercised his statutory power to remove him or her from office.”
Baksh, the court said, did not see it fit to exhibit the report containing the findings made by the Investigative Team, on the ground that the report was a confidential document. As such, Justice Chang said that the court was not inclined to determine whether the Minister acted unreasonably or irrationally, but whether he acted lawfully or in a procedurally regular way.
The Chief Justice observed that since Isaacs was never informed of the findings of fact made by the Investigative Team and was never privy to the report submitted to the minister, Baksh ought to have informed her of the findings and afforded her an opportunity to respond to the allegations. “It must be appreciated that removal from office is serious sanction for any disciplinary authority to impose on an employee and therefore the applicant should not have been removed from office unheard by the Minister,” he said.
He found that no complaint was made against Isaacs before she received the letter removing her from office and he noted that the very purpose of the investigation was to discover whether there was any basis for the complaint against the school and those responsible for its administration. Chang ruled that since the outcome of the investigation produced some basis for an allegation to be leveled against the applicant, she ought not to have been found guilty unless she had been given prior notice of that allegation and afforded a fair opportunity of meeting that allegation.
Justice Chang also pointed out that while the letter, dated October 29, 2010, from the Permanent Secretary (PS) to Isaacs spoke to the immediate termination of her tenure of Office as Head of a Senior Secondary School and to the approval of the Minister of her immediate demotion to the post of Graduate Deputy Headmistress of a Senior Secondary School (Grade A), “it is quite apparent from the Affidavit in Answer sworn to by the PS on his behalf that it was the Minister who made the decision to demote the applicant which necessarily involved her removal from the post of headmistress to that of deputy headmistress.”
He added, “It is clear that the Minister did not approve a decision to demote made by another person or authority and that he himself made the decision to demote. In fact and substance, he made a single decision to demote the applicant which necessarily involved her removal from her more elevated position.”
In the pleadings, both parties accepted that it was the Minister who made the decision to demote Isaacs, on the basis of the Investigative Team as a source of information. The court pointed out that the Minister is empowered to remove or revoke the appointment of the Principal of Queen’s College and also empowered to effect an appointment to the post of Deputy Principal of Queen’s College. “The valid removal or revocation of the appointment of the applicant from the post of Principal of Queen’s College would have opened the door for the Minister to appoint her to the post of Deputy Principal of the School – effectively a demotion of the applicant,” it further noted.
