Iqbal Hussain Khan v. Attorney General
Read the full judgment text of CACV 57/1974 on BabelCite. This Court of Appeal judgment was delivered on 10 December 1979.
1. O'Connor, J. is unable to be present today, but he has authorised me to say that he agrees with the judgment I am about to deliver.
|
CACV000057/1974 Police Force Ordinance - Corporal promoted to Inspector "to serve a trial period" - reverted under s. 25(1) - no opportunity to be heard - natural justice - audi alteram partem did not apply.
----------------- Coram: Huggins, J.A., Leonard and O'Connor, JJ. Date of Judgment: 10 December 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. O'Connor, J. is unable to be present today, but he has authorised me to say that he agrees with the judgment I am about to deliver. 2. The judgment now being challenged was delivered by Cons, J. on 15th November 1974 in an action alleging a breach of the rules of natural justice by the Deputy Commissioner of Police on or about 21st November 1968. The delays cannot be justified, but I can understand the reluctance of the Attorney General to press for greater expedition and thus to give the appearance of harassing a plaintiff who for the most part has been without professional representation. 3. The Plaintiff (the Appellant before us) was a Corporal of Police. Some of his superiors thought that he had the qualities required of an Inspector and, with effect from 1st June 1968, he was "promoted to the rank of Inspector" to "serve a trial period of three years in that rank". On 3rd June 1968 he reported for a course of instruction at the Police Training School. The day before the end of the course and he not having been confirmed in the rank of Inspector he was ordered to revert to his substantive rank of Corporal with effect from 22nd November 1968. That order was made under s. 25(1) of the Force Ordinance. It was in fact made under the proviso to that subsection, the material words being:
The Plaintiff had been a police officer for longer than the period of ten years there specified and the Deputy Commissioner had authority to make the order on behalf of the Commissioner by virtue of s.3. 4. The contention on behalf of the Plaintiff has been two-fold: (i) that the Deputy Commissioner could not lawfully exercise the power of reversion conferred by s. 25(1) without first giving the officer an opportunity to be heard in opposition to it, and (ii) that the Plaintiff was not given an opportunity to be heard. Mr. Somerville, on behalf of the Attorney General, concedes that the Plaintiff was not given an opportunity to be heard, and the whole argument has therefore turned upon the question whether failure to give such an opportunity invalidates the order of reversion. 5. Historically the High Court has exercised its jurisdiction over judicial and quasi - judicial tribunals principally by means of the prerogative writs or, more recently, by the prerogative orders. It was assumed that such a writ or order could not be directed to an administrative body or official, however unfairly it might have acted. The judges had no doubt that a person or body discharging judicial or quasi-judicial functions ought to follow the basic principles upon which they themselves acted. These could be stated as a code of rules, the chief of which were "to act fairly, in good faith, without bias, and in a judicial temper, and to give each party an opportunity of adequately stating his case": 2 Jowett's Dictionary of English Law (2nd Ed.) 1221. However, with the growth of government by administrative officials the courts have widened their horizons and will now in appropriate cases issue certiorari to any person or body having "legal authority to determine questions affecting the rights of subjects": a judicial element may be inferred from the nature of the power: see per Lord Reid in Ridge v. Baldwin 1964 A.C. 40, 76. Concerning the right to be heard Lord Morris of Borth-y-Gest said at p. 122:
Nevertheless the same learned judge, delivering the opinion of the Judicial Committee in Furnell v. Whangarei High Schools Board 1973 A.C. 660, 679F, said:
6. What Lord Reid said in Ridge v Baldwin was embodied in the guidelines laid down by the Judicial Committee in Durayappah v Fernando 1967 2 A.C. 337 for determining whether the audi alteram partem rule is applicable in a particular case, but before one begins to consider those guidelines one must, where the source of the power is a statute, look at the statute conferring the power which has been exercised, for the Common Law cannot "supply the omission of the legislature" where the Legislature has made the omission intentionally. In the present case Mr. Somerville submits that the Legislature had indicated a clear intention that an Inspector being reverted under s. 25(1) of the Police Force Ordinance need not be heard. He argues that Part III of the Ordinance permitted the dismissal of officers holding substantive rank and provided a scheme for dealing with such allegations, a scheme which expressly required that the officer should be given an opportunity to defend himself, whereas no such requirement was laid down for dealing with discharge or reversion under Part II of the Ordinance, where s. 25 was to be found. Part III has been substantially amended since 1968 and no longer contains any reference to a tribunal, the constitution and procedure of the "appropriate tribunals" for dealing with disciplinary offences being prescribed solely by the Police (Discipline) Regulations made under powers conferred by s. 45. However, formerly the Ordinance itself contained the outline of the scheme for dealing with allegations against officers of substantive rank and I think that the scheme did contemplate that the "appropriate tribunal" hearing an allegation against an inspector under s. 32 should act in a judicial manner: it was a fact finding tribunal and had no powers of punishment, any punishment being inflicted by the Commissioner of Police or by the Governor. Part II was couched in very different language and did not obviously confer a right to be heard. 7. Even if a comparison of Parts II and III did not alone sufficiently indicate an intention that an Inspector on probation need not be heard before his reversion, the scheme of the Ordinance falls to be considered in relation to the first and second factors in the guidelines supplied in Durayappah v Fernando. In this connection it must be remembered that the only form of unfairness in issue in this court has been the failure to give the Plaintiff an opportunity to present a "defence". The guidelines are set out at 1967 2 A.C. 349D:
Thus it is clearly material that the power of reversion was not being exercised here by way of punishment upon a substantive Inspector (where, it is conceded, the audi alteram partem rule would apply) but merely by way of terminating the appointment of an Inspector on trial or probation who was not alleged to have committed any disciplinary offence but who had been found not to possess the essential qualities required in a commissioned officer. In my judgment the fact that the Plaintiff was on trial was fundamental to the nature of the office he held: subject to a further condition it was for him by his conduct to prove himself to be fit to fill the office in a substantive capacity. The further condition was that he was to supply such proof both within and over a period of three years. This did not bind the Commissioner to retain him for three years if it became obvious at an earlier date that the Plaintiff could not prove himself fit, but simply ensured that the Plaintiff could not be kept in suspense for a longer period. The decision to revert was a purely administrative one. By its very nature it depended in part upon a subjective assessment of the Plaintiff's character by his superiors over the entire period of their knowledge of him. Again, that does not mean that the Deputy Commissioner could with impunity act whimsically (to use the word employed in argument), but he was not bound to act judicially. The "sanction" was the termination of a privilege to which the Plaintiff had no right but which had been given to him for the purpose of enabling him to prove his fitness for substantive promotion. In the absence of any duty to give reasons for his decision it might be difficult to challenge the decision of the Deputy Commissioner, but the jurisdiction to interfere would still be vested in the High Court if, for example, bad faith could be established. 8. The test was put thus by Buckley, L. J. in Stevenson v United Road Transport Union 1977 2 All E.R. 941, 949a:
I am not persuaded that this was such a case: it is distinguishable from the case just cited by reason of the nature of the appointment. 9. Mr. Bernacchi contends that even though the Plaintiff was on trial he none the less had a "property", consisting of his status and the salary and other material benefits accruing from his appointment, which ought not to have been taken from him without his being heard. Mr. Bernacchi relies heavily upon Reg. v Aston University Senate, Ex parte Roffey 1969 2 Q.B. 538, where two undergraduates were held to have been entitled to an opportunity to defend themselves before being asked to withdraw from their courses after failing twice in examinations in subsidiary subjects. The ratio decidendi on this aspect of the case was that the examiners took into consideration the students' academic and personal histories and that the examiners might be unaware of material factors which only the students themselves could have known. Emphasis was placed on the rights and privileges attaching to the status of an undergraduate and the chance of achieving graduate status in due time. I confess that I had grave doubts about this reasoning and was not surprised to learn that it had been questioned in Herring v Templeman 1973 3 All E.R. 569 at 584h and by Professor Wade in (1969) 85 L.Q.R. 468. I readily accept that the decisions reached by the university authorities in those cases and the decision reached by the Deputy Commissioner in the present case were important decisions, which had grave consequences for each of the plaintiffs, but that of itself was not sufficient to entitle them to be heard. In particular the probationary nature of this Appellant's appointment, the fact that the appointment was in a disciplined force and the subjective judgment upon which the decision was inevitably based appear to me much weightier considerations. It has been argued that the Plaintiff had some kind of vested property in a substantive appointment and that he is entitled to a declaration that he is now an Inspector of Police in spite of the expiry of the three-year trial period and the absence of any confirmation. I totally reject that contention. 10. Again, it has been argued that the reversion of the Plaintiff to his substantive rank of Corporal was in the nature of a penalty. I do not view it in that light, although it may so appear to the Plaintiff himself. Indeed, I can appreciate the fact that the Plaintiff might feel (as he undoubtedly does) a sense of grievance, for, in retrospect, it seems that his hopes arising from his acceptance for the Inspectors' course were ill founded. Although he was in fact recommended for the course, two senior officers who had known him well clearly think the recommendation should not have been made. This diversity of opinion itself indicates the futility of giving the Plaintiff a chance to defend himself against "the charge" of "unsuitability", although I have not forgotten the view expressed by Lord Reid in Ridge v Baldwin at 1964 A.C. 68 that it is at least very doubtful whether, where the audi alteram partem rule applies, the fact that a hearing would have been unlikely to produce a different decision could be accepted as an excuse for denying a hearing. This was a case where, in the words of 1 Halsbury (4th Ed.) 81 (66)(n. 5), "fairness may simply denote abstention from abuse of discretion". As Sachs, L.J. said in In re Pergamon Press Ltd. 1971 1 Ch. 388, 403D:
11. I think the real substance of Mr. Bernacchi's argument became apparent when he said: "the Appellant had no opportunity to make his allegation of corruption". What was suggested was that some of the reporting officers had given false assessments of the Plaintiff's capabilities because he had not greased their palms. The matter was touched upon in evidence but the judge did not allow the Plaintiff to go into the matter at length because he took the view that it would be relevant only if the person making the final decision was party to the corruption, which was not alleged. This aspect of the case was not developed before us and the decision of the judge upon it is not directly raised by the notice of appeal. I am inclined to think that that decision may have stated the law too narrowly and that it might have been sufficient to show that the Deputy Commissioner had relied upon reports of his subordinates which to his knowledge were suspect without making proper enquiry, even though he was not himself party to the corruption. However, nothing of the kind was pleaded and it has never been suggested that the Deputy Commissioner had any reason to suspect, when he made his decision, that the reporting officers had acted corruptly. No attempt was made to cross-examine the Deputy Commissioner concerning his knowledge of any allegation of corruption and it is clear that the Appellant had lodged no formal complaint of corruption with the Anti-Corruption Branch of the Police Force: he did at one point say that he had seen an Inspector Iu, but he did not answer a question as to the date of any report which he had made, and gave as a reason for his failing to make a report that he was afraid there would be trouble. 12. As I have said, the only basis advanced for the complaint of unfairness was the failure to apply and observe the audi alteram partem rule. For the reasons given I think that rule was not applicable and that the appeal should be dismissed. Leonard, J.: 13. I also agree and have nothing to add. 10th December 1979. |