Shotte v Attorney General

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Saunders, J.
• Judgment Date: 30 May 2001
• Neutral Citation: MS 2001 HC 5
• Docket Number: Civil Suit No. M5 of 2000
• Date: 30 May 2001

Shotte

and

Attorney General

Saunders, J.

Civil Suit No. M5 of 2000

High Court

Judicial review - Certiorari — Applicant appealed recommendation of the Commissioner of Police that he be dismissed from the Force for repeated breaches of discipline — Applicant given and accepted the option to resign — Applicant paid for 3 months of his accumulated working days' leave — Sought certiorari to quash decision of Governor restricting the sum payable to only 3 months of leave — Whether Governor had lawful basis for interfering with any of applicant's benefits once he had resigned — Whether applicant's eligibility for leave amounted to “property” to which he was entitled — Judgment for respondent.

Appearances:

Mr. George Kirnon for the applicant.

The defendant appearing in person.

Saunders, J.

1 The applicant is a former Police Inspector. He joined the Royal Montserrat Police Force in 1970. In 1997 he was repeatedly found guilty of serious breaches of discipline. The then Commissioner of Police recommended his dismissal from the Force. The applicant appealed to the Governor of Montserrat.

2 If the applicant had been dismissed from the Force he would have lost his gratuity, his pension and even perhaps much of what was left of his reputation. The Governor informed the applicant that he would give him three days to consider resigning from the Force. If the applicant exercised this option then he would be assured his gratuity and pension. The appeal process would be rendered otiose.

3 The applicant elected to resign. He did so on 1st June, 1998. His resignation was accepted. He received a gratuity of over $80,000.00. He has since then been drawing a monthly pension of $1,300.00. This pension will continue until he dies. He appeared to me to be in good health. He is now 52 years old.

4 After his resignation the applicant had some difficulty establishing his right to receive monies withheld from him while he was on suspension pending the hearing of the disciplinary charges brought against him. He however did eventually receive those funds. This case concerns his leave. At the date of his resignation the applicant was apparently eligible for 276 working days' leave. When he elected to resign, the Governor directed that he should be paid for three months (or 75 days) of that leave. The applicant now brings this action against the State claiming the rest of his leave, that is the remaining 201 days. He claims that he is entitled to be paid for that leave. He has filed a Motion for certiorari seeking the quashing of the Governor's directive that he should be paid for only three months' leave.

5 His counsel developed the point in this way. Upon resignation, he submitted, the applicant was entitled to all the “natural benefits” that flowed as a consequence of the act of resignation. These included, according to counsel, the applicant's gratuity, his pension and his accumulated leave. Notwithstanding the less than becoming conduct of the applicant and the perceived leniency of the Governor in allowing him to resign and not risk losing everything, the Governor had no lawful basis for interfering with any of those benefits once the applicant had resigned. The directive that the applicant should receive only three months of his 276 days leave amounted to a forfeiture of monies to which the applicant was entitled. This forfeiture, counsel argued, was an unconstitutional deprivation of property and should forthwith be refunded.

6 The Attorney General, in the pre-litigation correspondence with the applicant and at trial, resisted the claim on several grounds. A great deal of effort was put into a submission that there was a binding agreement made between the applicant and the Governor that, as a condition for being permitted to resign, the former would accept the 75 days' leave in full satisfaction of all leave due. If there was any such agreement I am not satisfied that it has been proven before me. I therefore reject that defence.

7 Several submissions were made by the applicant's counsel in support of the allegation that the applicant was unconstitutionally deprived of property. I consider these skillfully argued submissions to be all flawed because they proceed upon the premise that the 201 days' leave for which the applicant was not compensated amounted to “property” to which the applicant was entitled. I do not share that view.

8 There are in existence General Orders governing the terms and conditions of all public officers in Montserrat. These General Orders took effect on 1st July, 1986. Section 6.02 of the General Orders defines leave as “the absence from duty with permission in accordance with the provisions of [the General] Orders”. There are also specific Police Regulations that address the issue of leave for police officers. There is no definition of “leave” specifically set out in the Police Regulations. In my view however the definition of “leave” contained in the General Orders is fully compatible with the provisions of the Police Regulations. I am therefore prepared to hold that leave for police officers can be similarly defined as absence from duty with permission in accordance with the Police Regulations and the General Orders (if and where applicable).

9 Regulation 27 of the Police Regulations permits Police Officers to accumulate leave due up to certain specified maximums. The first proviso to this Regulation states that “… vacation leave shall only be granted when the exigencies of the Service permit”. The second proviso outlines “that no Inspector… shall be eligible for any compensation if it should not be possible to grant him the vacation leave for which he is eligible under this regulation or if it should be necessary to recall him from vacation leave before the expiration of the vacation leave granted to him”. Regulation 34 bars police officers from being granted leave if they are “under punishment” or are facing pending disciplinary charges. Eligibility for leave does not amount to a right to leave as and when the officer requires the same or at all. The practice is that leave is applied for and not infrequently such applications are denied.

10 A person who is eligible for leave will therefore only enjoy that leave after the person has fulfilled certain criteria and “the exigencies of the Service” allow for such leave to be granted and enjoyed. It seems to me therefore that eligibility for leave is one thing. Entitlement to leave and/or eligibility for compensation for such leave amounts to quite another. In my view the applicant's eligibility for leave does not amount either to “property” or to an “interest in or right over property” to which the applicant is entitled. In my judgment “leave” does...