Acting Chief Justice Ian Chang has overturned the dismissal of Chief Co-operative Development Officer Kareem Abdul-Jabar, after finding that the Public Service Commission (PSC) and the Ministry of Labour found him guilty of breaches of the public service disciplinary code even before giving him a chance to respond to the charges.
Jabar had moved to the court in March to challenge what he contended were unlawful attempts to discipline him after he was sent on administrative leave to facilitate a probe into alleged breaches resulting from his actions in the sale of a disputed Lamaha Gardens property.
He was subsequently served with a letter from the PSC informing him of his dismissal and he also challenged its legality. Through his lawyer, Roysdale Forde, he had obtained temporary orders from Chang against the PSC and the Ministry’s Permanent Secretary Lorene Baird for them to show cause why the decisions they took should not be overturned.
“Under the compulsion of judicial restraint, this court merely expresses the view that the PSC and the Ministry of Labour… had done nothing which can be considered as procedurally regular or fair after the said Ministry had sent the applicant on administrative leave and informed the PSC that it was conducting an investigation. Therefore, a comedy of errors due to ignorance or mistake followed,” Justice Chang’s 33-page decision said, while noting that the Rules of the Public Service Commission 1998 were observed in the breach—if at all. As a result, the court saw it fit to order that the Orders or Rules nisi of Certiorari and Prohibition granted on March 11, 2013 be made absolute.
The decision stated that on March 5, 2013 Jabar by way of Notice of Motion applied for seven prerogative orders.
The ruling noted that Jabar, in his affidavit in support, stated he received a letter dated February 4, 2013, under the hand of Baird, indicating that the ministry’s administration had taken a decision for him to proceed on administrative leave with immediate effect.
In that letter he was asked to submit a comprehensive report on the matter and he complied.
On February 21, 2013, Jabar received a letter under the hand of Patrick Findley, Deputy Permanent Secretary, informing him that he was being invited to attend a hearing before the Inquiry Panel. That panel comprised of Findlay, Hydar Ally, Permanent Secretary, Public Service Ministry and Colin Croal, Permanent Secretary, Ministry of Local Government.
The hearing, which was to take place on February 22, 2013, had to do with the sale of the Lamaha Gardens land, which was sold in January this year, leading an outcry by residents who said it belonged to the community. President Donald Ramotar subsequently asked the Labour Ministry to probe the sale.
The ruling added that on February 21, Jabar also received a letter which stated that appeal was granted for him to proceed on administrative leave and that he was not permitted to enter the Ministry’s compound unless authorized by the Permanent Secretary or the Minister.
That same day, his lawyer wrote to Findlay indicating that he (Jabar) would be unable to attend the Inquiry Panel and requested a copy of the authority under the PSC rules which permit the holding an Inquiry Panel by the Public Service Ministry and/or its agents. It was pointed out that neither Jabar nor his attorney received any reply to that letter.
Jabar subsequently received a letter, dated February 25, 2013, under the hand of J Jaigobin, Secretary of the PSC, which stated that he had failed to appear before the disciplinary committee on February 21 and 22, and as such he had breached Offence No. 4 of the Disciplinary Code.
It also stated that he had breached Offences No. 35 and No. 37 of the Disciplinary Code; dealing with malpractices with fraudulent intent and dishonesty in official dealings.
Abdul-Jabar, in the same letter, was asked to respond to the charges by February 27, failing which the PSC would proceed with the matter in his absence.
The judge said that since the time to respond was insufficient, Jabar’s lawyer sent a letter to the secretary of the Public Service Commission requesting seven days to respond. A letter was received on February 27 indicating that the request had been granted.
‘Bordering on the ridiculous’
It was noted that Baird, in her affidavit in answer, stated that she had informed the PSC on February 8, 2013 that an investigation was being conducted in relation to the applicant and requested permission of the PSC for him to be sent on administrative leave with immediate effect pending the determination of the matter.
It was stated that on February 11 Jaisingh responded and indicated that PSC had given its approval to the request. Jaisingh’s letter, according to the decision, also indicated that the PSC had approved a committee or disciplinary tribunal of three persons senior to the applicant to be set up to investigate the allegations. The names of those persons were also provided by Jaisingh.
It was stated that Jabar did not respond to the charges against him as had been granted by Jaisingh. Instead on the date March 4, Jaisingh received a letter by the attorney indicating that he had received the letter and that Jabar would be unable to respond to the charges in writing as no charges were set out in the first letter which was dated February 25, 2013.
Baird, according to the decision, said that it was not until February 28 that Findlay received a letter, dated February 21, from Forde, challenging the authority of the Disciplinary Tribunal.
The decision said that in was in a letter, dated February 4, that Jabar was informed that he was to proceed immediately on administrative leave. “Thus it was the Ministry not the PSC which decided to send the applicant on administrative leave,” the judge noted, while adding that the court was unable to see why the decision to have him submit a comprehensive report relating to the land sale could not have been made by the Ministry.
It was noted that Baird was conducting a departmental inquiry into the circumstances relating to the land sale that Jabar was admittedly involved and it could not be unlawful for the Permanent Secretary to send the applicant on administrative leave to protect the integrity of the inquiry. ‘The Ministry was not the body which was empowered to take punitive action against the applicant and even if the administrative leave was in substance, suspension, the action of sending the applicant on suspension did not attract the application of the principles of natural justice since the Ministry was merely inquiring and not taking disciplinary action and could not impose any penalty,” the decision read.
It was, however, pointed out that the ministry sought approval of the PSC after it had informed the applicant that he was on immediate administrative leave.
Justice Chang said that what was clear was that the Investigative Committee was not of the Ministry creation but that of the PSC, since by letter, dated February 19, 2013, the Committee was required to submit its findings to the PSC. “This the PSC was on its own approving the conduct of a new investigation by personnel chosen by the Ministry but approved by the PSC and which was required to report its findings to the PSC not to the Ministry,” the decision said.
The decision said that Findlay in his capacity as the Deputy Permanent Secretary of the Ministry wrote to the PSC, a memorandum in which his own name (Patrick Findlay) was recommended as a member of the Investigative Committee. “Bordering on the ridiculous, not only did the PSC approve Mr Findlay as a member of the Investigative Committee but it also delegated its disciplinary authority to that Investigative Committee,” the judge observed.
The tribunal appointed to investigate and conduct a hearing, the judge said, had reported not to the Permanent Secretary or the Head of Department but rather to the PSC and what was reported was their inability to conduct the hearing for reason of the applicant’s failure or refusal to attend the hearing. “That was no basis at all not to concluded or even conduct a hearing for such a reason,” he stated.
Further, the judge noted that it was clear that the members of the Disciplinary Tribunal were collectively in dereliction of their duties and were seeking the assistance of the PSC to take over the matter.
It was stated that in asking Jabar to respond to the charges against him, not only had the PSC found him guilty but that this view was based on a letter from Findlay in which the dismissal of Jabar for serious misconduct was requested.
