Charles Ganga-Singh v Betting and Gaming and Lotteries Commission
| Jurisdiction | Jamaica |
| Judge | MANGATAL J: |
| Judgment Date | 11 January 2005 |
| Judgment citation (vLex) | [2005] 1 JJC 1101 |
| Court | Supreme Court (Jamaica) |
| Date | 11 January 2005 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
JUDICIAL REVIEW - Application inappropriate
1. Charles Ganga-Singh is an Attorney-at-Law. He was offered the position as Legal Officer in the service of the Betting Gaming and Lotteries Commission "the Commission" initially on a probationary basis in November 2001. His appointment to the position of Legal Officer was confirmed with effect from April 2002. On November 18, 2002 the Commission dismissed Mr. Ganga-Singh with immediate effect On the 16 th of December 2002 Mr. Ganga-Singh obtained leave to apply for judicial review of the Commission's decision to dismiss him. The learned Judge who dealt with the application also ordered that the grant of leave should operate as a stay of Mr. Ganga-Singh's dismissal. Mr. Ganga-Singh is in paragraph three of his Statement seeking Writs of Certiorari and/or mandamus to quash the decision of the Commission, which he says, was arrived at in contravention of the rules of natural justice. He also contends that the decision contravenes the Public Service Regulations and the Staff Orders of the Civil Service. The point which arose for my consideration on the hearing dates is a preliminary point taken by the Respondent that judicial review is wholly inappropriate and that the continuation of the application for judicial review would be an abuse of the process of the Court.
2. On the 19 th of October 2004 this matter first came on for hearing before me. That morning Counsel for the Applicant made an application that I should recuse myself from hearing the matter. The first limb of the application was on the basis that I had at a particular time, prior to the filing of this matter, been a Partner in the firm of Dunn, Cox, Orrett and Ashenheim, now Dunn Cox, and that Dunn Cox represents the Commission. The second basis was that the Attorney General's Department gave its opinion on or about the 20 th November 2002 by way of a letter in relation to a lawsuit against the Commission filed by another former employee Patrick Hall. The Attorney General's letter was offering advice to the Commission and this advice was rendered at a time when I was a Senior Member of the Attorney General's Department.
3. I considered the matter carefully and formed the view that there was no proper basis for recusing myself as there was no real danger or likelihood of bias There could also be no reasonable apprehension or suspicion on the part of a fair-minded member of the public that I would not discharge my duty impartially.
I completely ceased being a Partner in Dunn Cox Orrett and Ashenheim at the end of Januarv 2000, more than four and a half years ago, long before Mr. Ganga-Singh became Legal Officer at the Commission. I do not recall ever doing any work whatsoever whilst at Dunn Cox on behalf of the Commission, whether regularly, or otherwise. As to (he second limb of the application, whilst I was at the Attorney General's Department when the letter in question was written, to my knowledge I had no personal involvement whatsoever in the Patrick Hall matter, nor did I supervise or approve any advice in relation to it. I did not act for the Commission whilst at the Attorney General's Department Further, the opinion was offered in a different matter from the instant case I also had regard to the fact that this case was fixed for two days, there was no other judge available to hear it, and the next possible court date would have been months away. Judicial review matters must be dealt with expeditiously, though I appreciate not if there is any reasonable apprehension or suspicion of bias. However as i have already said there could be no such apprehension or suspicion here. J also had regard to Part 1 of the Civil Procedure Rules 2002 "the C.P.R." and the overriding objective of dealing with cases justly, in particular the need to deal with cases expeditiously and fairly. Dealing with a case justly also means that whilst one may be placed in a difficult personal position when a request to recuse is made, that does not mean that recusal should take place lightly or that the request itself should be automatically granted. I relied upon the Privy Council decision in Donald Panton and Janet Panton v. The Minister of Finance and the Attorney General Privy Council Appeal No. 20 of 2000, in particular paragraph 10. I also relied on the decision in Locabail (UK) LTD. v. Bayfield Properties Ltd. [2000] QB, 451, 480.
4. It was common ground on both sides that for the decision of the Commission to be amenable to judicial review there has to be an issue of public law involved in this case That is the umbrella issue, but some subsidiary issues are:
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(a) Was the relationship between the Commission and Mr. Ganga-Singh that of master and servant prior to the decision to dismiss him or is Mr. Ganga-Singh the holder of a public office?
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(b) Is the Applicant Mr. Ganga-Singh the holder of a permanent appointment? Does the concept of legitimate expectation apply to say that the Applicant as a permanent appointee would occupy the position for a very long time, and that he could not be terminated by three month's notice as the letter engaging his services on the face of it would suggest? If such an expectation arises, does that characterize the issue as being one of public law?
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(c) If the relationship is that of Master and servant, and assuming that the Commission is a public authority, does that inject a public law element into the relationship of Master and Servant?
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(d) How if at all is the question affected by the fact that Mr. Ganga-Singh was the recipient of a fiat from the Director of Public Prosecutions to prosecute offences under the Belting Gaming and Lotteries Act and that his job description required him to carry out certain prosecutorial functions?
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(e) Are the Public Service Regulations applicable to the relationship between the Commission and Mr. Ganga-Singh?
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(f) Are the Staff orders of the Public Service, 1976 applicable to the relationship between the Commission and Mr. Ganga-Singh?
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(g) If it is found that no public law issue arises, what is the appropriate way to treat with this case?
5. (a)Was the relationship between the Commission and Mr. Ganga-Singh one of Master and Servant prior to the dismissal or was the Applicant the holder of a public office?
To some extent Mr. Ganga-Singh's position with regard to this aspect of the matter has been difficult to follow, from the point of view of the Statement, grounds and Affidavits filed on his behalf as well as from the submissions advanced. For example, in his Affidavit sworn to on the 29 th of November 2002, paragraph 2 Mr. Ganga-Singh stated that he has been an employee of the Commission since the 3 rd of December 2001. However, in paragraphs 2 to 5 of his Third Affidavit sworn to on the 24 th of November 2003 Mr. Ganga-Singh claims to be the holder of a public office within the meaning of the provisions of the Constitution of Jamaica, the Civil Service Establishment Act and the Corruption Prevention Act. In paragraphs 6, and 9 to 12 of his Third Affidavit Mr. Ganga-Singh denied that the relationship of master and servant existed between himself and the Commission. In his submissions on the 20 th of October 2004, Mr. Samuels on behalf of Mr. Ganga-Singh submitted that the issue is not whether the Applicant is a public officer or not, but whether the nature of the Applicant's relationship, contract, or appointment with the Commission avails him of public law. He further submitted that the issue is not whether the Applicant's relationship with the respondent is called a contract or an appointment, but rather whether the contract of employment is one that goes beyond the ordinary master servant relationship. Whilst he was being cross-examined by Mr. Dennis Morrison Q.C. Mr. Ganga-Singh maintained that he was not at any time on a contract of employment, but rather he was on a letter of appointment. He said that the distinction is that a contract of employment has a fixed time period whereas a letter of appointment is for an indefinite period. His position was that in signing the letter dated November 14 2001 as agreeing to the terms he did not enter into a contract of employment.
6. By letter dated 14 th November 2001 Mr. Ganga-Singh was offered the position of Legal Officer- It is necessary to set out most of the contents of the letter.
Dear Mr Ganga-Singh,
Further to your application and subsequent interview on November 12 2001, you are being offered employment as Legal Officer in the service of the ...Commission, effective December 3. 2001.
Your employment is for a probationary period of three months in the first instance and if your performance is regarded as satisfactory at the expiration of this period, you will be considered for permanent appointment to the position.
You will be responsible to the Executive Chairman for the due performance of your duties. A copy of the relevant job description is enclosed for your guidance
Your appointment will be subject to such rules and regulations as the Commission may determine from time to time and will be terminable by three month's notice in writing by either side or three months pay in lieu of notice by the Commission.
Your compensation package will be as follows ..
Upon confirmation in the position you will be.
Required to participate in (he Commission's pension scheme........
Eligible for Group Life Coverage......
Enrolled in the Commission's Health Insurance Scheme.....
Your leave...
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Karen Thames v National Irrigation Commission Ltd
...Since the claimant had not been so appointed, her appointment was ‘based on an ordinary contract of service.’ Charles Ganga-Singh v The Betting Gaming and Lotteries Commission M-156/2002 January, 11, 2005 (unreported), followed Eugennie Ebanks . It is of significance that both courts relied......