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Deegan v. Minister for Finance [1998] IEHC 68 (12th May, 1998)
THE
HIGH COURT
JUDICIAL
REVIEW
95JR/1997
BETWEEN
MARGARET
DEEGAN
APPLICANT
AND
THE
MINISTER FOR FINANCE
RESPONDENT
118JR/1997
SUSAN
GAVIN
APPLICANT
AND
MINISTER
FOR FINANCE
RESPONDENT
117
JR/1997
MARY
LYNCH
APPLICANT
AND
THE
MINISTER FOR FINANCE
RESPONDENT
JUDGMENT
delivered by Mr. Justice O'Higgins on the 12th day of May, 1998.
1. The
Applicants in these three proceedings for Judicial Review by way of Certiorari
are civil servants attached to the Ordnance Survey Section of the Department of
Finance. They all seek similar Orders and while there are some difference in
the facts in each of their cases there are not such as to make it necessary to
give separate judgments, so I propose to deliver a single Judgment covering all
three applications. In the cases of Susan Gavin and Mary Lynch the grounds
upon which relief was sought are as follows. The Respondent has acted ultra
vires and without due regard for the Applicants' rights pursuant to Bunreacht
na hÉireann in:
(i) Purporting
to suspend the Applicant from her employment without pay and without according
to her an opportunity of hearing the allegation made against her or of
challenging the same.
(ii) Purporting
to suspend the Applicant without notifying her of the ground for such suspension,
(iii) By
purporting to delegate to one Richard A. Kirwan the power to suspend the
Applicant pursuant to the terms of the Section 13 of the Civil Service
Regulations Act, 1956.
(iv) Purporting
to suspend the Applicant without due regard for fair procedures and to the
Applicant's right to earn a livelihood.
2. Ground
No. 3 was not sought to be relied on by the second and third named Applicants.
Ground No. 3 was abandoned at the commencement of the proceedings by the second
and third named Defendants and the first named Applicant was not given leave to
argue on these grounds. The grounds upon which relief was sought by the first
named Applicant were similar. however, in addition she contended that there
had been non-compliance with the Respondent's disciplinary code. She further
complained about the indefinite nature of the purported suspension. Counsel
sought to argue further grounds, namely,
(a) that
there was no internal enquiry and that the Respondent had no powers to delegate
his duties of inquiry to the Gardai and
(b)
that
the time of suspension was too long and that by reason of the length of time in
the circumstances the Order should be quashed.
3. However,
having heard Counsel on both sides, I did not allow these grounds to be added.
4. The
facts of the matter are not greatly in dispute. All three Applicants are
cartographers in the Ordnance Survey Section of the Department of Finance. All
three are established civil servants. In early February 1997 all three
Applicants were told that an internal audit was being carried out. Some days
after the arrival of the auditors all three were asked to attend a conference
where they were interviewed by Ms. Anne Maher and
5. Mr.
Pat McCarthy. On the 21st day of February, 1977 Ms. Deegan attended a meeting
with Mr. Kirwan where he proceeded to read a letter of suspension. When he had
finished reading the letter he asked her did she understand its contents she
answered that she did not, that she was in a state of shock and could not
understand what was happening. Mr. Kirwan then read the letter again, signed
it and handed it to her and asked if she had any questions. She said it was at
that stage that she asked Mr. Kirwan what allegations were being made against
her. He responded that there was a fraud investigation and the Gardai were
involved in the same. Ms. Gavin was also seen by Mr. Kirwan on the 21st
February and a similar letter was read over to her. In the case of Mary Lynch,
however, she was on sick leave. She had no meeting on the 21st February with
Mr. Kirwan. A letter identical in its terms to that received by the other
Applicants was sent to her home by courier.
6. The
letter of the 21st February to each of the Applicants was as follows:
You
are permitted under Section 14 of the Civil Service Regulation Act, 1956 to
satisfy the appropriate authority that by reason of the prolongation of the
investigation into your case that undue hardship is being caused and that some
payment be made to you for the mitigation of hardship while you are suspended."
and
it is signed Richard A. Kirwan, Director of Operations.
Letters
were sent on behalf of the three Applicants as follows. On the
26th
February
"Re:
Our Client Margaret Deegan Cartographer
Dear
Mr Kirwan,
We
are consulted by our above named client Mrs Margaret Deegan with reference to
her summary suspension without pay on the 21st February, 1997. The letter of
suspension refers to grave irregularities warranting disciplinary action. We
are satisfied that her suspension was unlawful and unwarranted.
Unless
our client is reinstated forthwith she will now take such action as she may be
advised without further notice to you.
Yours
sincerely,
David
Wallace & Co.,
Solicitors."
7. Susan
Gavin's letter was sent on the 27th February, 1997 to Mr. Kirwan. It read:
"Dear
Sir,
We
act for Ms. Susan Gavin of 19 Ashlawn Park, Ballybrack, Co. Dublin who has
passed us your letter dated the 21st February, 1997. We would be obliged if
you would specify what you mean when you say 'That our client appears to you to
be guilty of a grave irregularity warranting disciplinary action.'
We
also understand that we (sic) told or (sic) client that the matter was now in
the hands of An Garda Siochana and we would be obliged if you would indicate
what station or unit are investigating this matter.
Garret
Sheehan & Company"
8. In
respect of Mary Lynch on the 4th March the following letter was sent:
"Dear
Sir,
We
act for Mary Lynch of Ardnew, Longwood, Co. Meath who has handed us your letter
of 21st February, 1997.
Please
let our client know by return what grave irregularity you say our client is
guilty of which warrants her suspension. Please note that our client
emphatically denies any wrongdoing and reserves all her rights.
Yours
faithfully,
Garrett
Sheehan & Company
On
the 18th March Mr. Kirwan wrote to all three Applicants. in the case of
Ms.
Gavin the letter read as follows:
"Dear
Ms. Gavin,
A
preliminary investigation in the Map Sales area has brought to light certain
irregularities in your performance of duties, and evidence linking you to
possible fraud. The Internal Audit, which commenced on 5 February found that
you had a significant excess of cash over receipts in your possession, for
which you failed to furnish a satisfactory explanation. There is also evidence
that receipts issued by you to customers to not match the corresponding
receipts which you submitted to accounts.
If
you wish to comment on the contents of this letter you may to do so in
writing. The investigation of all aspects of this matter has been placed in
the hands of the Garda Bureau of Fraud Investigation.
Yours
sincerely
RICHARD
A. KIRWAN
DIRECTOR
OF OPERATIONS"
9. The
other two Applicants received letters in similar, though not quite identical,
terms.
10. I
have been referred by Counsel to the case of
Ahern
-v- Minister for Industry and Commerce
1991 1 IR Page 462 where at Page 468 of the Report Mr. Justice Blaney observed:
"I
start accordingly with the question of whether Mr. Bennett's decision to put
the Applicant on compulsory sick leave is justiciable. It seems to me that on
balance it is. If the Applicant had been suspended without pay, there is no
doubt that the decision would have been justiciable, it would have effected the
Applicant's right to be paid a salary."
11. I
was also referred to a passage in
John
-v- Rees and Ors.
,
Martin
and Anor -v- Davis and Ors.
Rees
and Anor -v- John
reported 1969 2 All England Reports at Page 247 where McGarry J. said at page
305:
"In
essence suspension is merely expulsion pro tanto. Each is penal, and each
deprives the member concerned of his enjoyments of membership or office.
Accordingly, in my judgment the rules of natural justice prima facie apply to
any process of suspension in the same way they apply to expulsion. In my
view
therefore, it is clear that the suspension of the Applicant is justiciable."
12.
Counsel referred me to a passage in the case of
Flynn
-v- An Post
a decision of the Supreme Court reported in 1987 Irish Reports at page 69, and
in particular to a passage in the judgment of Mr Justice Henchy at page 75/76
of the Report which reads as follows,
"The
second main ground of appeal rests on the submission, made unsuccessfully in
the High Court and put forward again in this Court, that the purported
suspension was invalidated because, in breach of the Plaintiff's fundamental
rights, he was not adequately informed of the misconduct relied on in support
of his suspension. I readily accept that where there is a suspension without
pay in circumstances such as apply here the fundamentals of justice require
that the suspected person be given at the time, or as soon as reasonable (sic),
practicable thereafter, an adequate statement of the reasons for the
suspension, so that he may take such steps as may be thought necessary to
cancel or alleviate the suspension."
in
the case
Ni
Bheolain -v- City of Dublin Vocational Educational Committee Ireland and the
Attorney General
a judgment of Miss Justice Carroll delivered the 28th January, 1993, at page 41
of the judgment she says:
"It
seems to me beyond question that the basic requirements of fair play require
that someone suspended should be immediately told the exact reasons why. The
person suspended must know the actual grounds of suspension in
order
to prepare for the Inquiry which must follow quickly. Another reason why this
information should be given is that it should be open to the person concerned
to approach the Minister and ask him to terminate the suspension under the
power given to him by subsection 3. It might be that where a suspension has
been made, there is an acceptable explanation for the conduct warranting the
suspension and the Minister may terminate the suspension immediately and
restore the salary. The whole affair is thus concluded without the formality,
delay and expense of an Inquiry. It must be part of the overall procedure that
this channel of communication is open. If the person suspended does not know
the specific reasons therefor, the possibility of persuading the Minister to
terminate the suspension is prevented
."
13. The
first reason given in that case may be differentiated from the present case in
that there were statutory provisions for the inquiry in that case to follow as
soon as may be convenient, and there are no such requirements in the present
case. It could be argued that there is not quite the same urgency here.
14. The
second reason, however, seems to me to be applciable in this case too. The
Civil Service Regulation Act, 1956 by Section 13(2) says:
"A
suspending authority may terminate the suspension of a Civil Servant suspended
under subsection 1 of this Section."
15. It
should be open, therefore, to a person concerned, to approach the suspending
authority and ask him to terminate the suspension under the powers of that
subsection. In order so to do it would be essential that the person would have
sufficient detail of the allegations. In the present case I am satisfied that
the information given to the three Applicants falls far short of being
sufficient to enable them to make such representations. No convincing reason
has been given for such failure though in the case of one of the Applicants it
was stated that the matter was sub judice - and in default of adequate
explanation for this failure, the Applicants are entitled to succeed
16. The
Applicants also claim to be entitled as part of the fair procedures guaranteed
by the Constitution to a right to make representations at the meeting that
suspended them. In my opinion in relation to suspension I would agree with
Miss Justice Carroll where she said at page 34/35 of the Judgment in the the
Ni
Bheolain
case:
"In
relation to suspension it seems to me that no such general rule can be laid
down. It seems to me to be dependant on all the circumstances of an individual
case."
17. Having
given examples of cases where immediate suspension without communication or
warning might be justified Miss justice Carroll says:
"In
less serious cases however, it seems to me that suspension without some form of
advance warning would be a denial of fair procedures. If there is a
possibility that some simple explanation sought in advance would obviate the
necessity for suspension, then in my opinion, there should be communication
with the person involved."
18. In
the present case there might indeed have been reasons why and there was no
communication with the persons involved such as that envisaged by Carroll J.
No reason has been given for the failure to seek such explanation. On this
ground also the Plaintiffs are entitled to succeed.
19. I
will discuss the form of the Order with Counsel.
© 1998 Irish High Court
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