Deegan v. Minister for Finance [1998] IEHC 68 (12th May, 1998)

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: "I am a person nominated under Section 3 of the Civil Service Regulation Act, 1956 to be a suspending authority. As it appears to me that you are guilty of grave irregularity warranting disciplinary action, and as it appears to me that the charge warrants investigation, I hereby suspend you under the terms of Section of the Civil Service Regulation Act, 1956 with immediate effect. 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, I refer to my minute of 21 February informing you of your suspension from duty, under the terms of Section of the Civil Service Regulation Act, 1956 . 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 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII