Derek Achong

The Pub­lic Ser­vice Com­mis­sion (PSC) does not have the ju­ris­dic­tion to with­hold a por­tion of a pub­lic of­fi­cer’s salary while they are sus­pend­ed pend­ing the de­ter­mi­na­tion of dis­ci­pli­nary charges against them.

De­liv­er­ing a judg­ment on Mon­day, High Court Judge Car­ol Gob­in up­held a nov­el con­sti­tu­tion­al case brought by prison of­fi­cer Caram­c­hand Sam­my.

Ac­cord­ing to the ev­i­dence in the case, in Sep­tem­ber 2018, the PSC brought three charges of dis­cred­itable con­duct against Sam­my, who was then as­signed to the in­fir­mary at the Max­i­mum Se­cu­ri­ty Prison in Arou­ca.

The charges stemmed from an in­ci­dent in 2017 in which Sam­my used his cell­phone to take pho­tographs of a pris­on­er who was stabbed by an­oth­er in­mate and shared the im­ages on a group chat with col­leagues, who were al­so as­signed to the in­fir­mary.

Sam­my was sus­pend­ed and the PSC de­cid­ed to with­hold one-quar­ter of his salary pend­ing the out­come of the dis­ci­pli­nary process.

Sam­my even­tu­al­ly plead­ed guilty to the charges and was sub­se­quent­ly found guilty of them.

He was fined two months’ salary for two of the charges and was dis­missed from the Prison Ser­vice on the third.

In March 2020, the Pub­lic Ser­vice Ap­peal Board (PSAB) over­turned the PSC’s de­ci­sion on the penal­ties im­posed on Sam­my.

Sam­my was in­stead rep­ri­mand­ed and dis­charged on the first two charges and fined $5,000 for the third.

He filed the law­suit af­ter the PSC re­fused to re­store the por­tion of his salary that was with­held dur­ing his sus­pen­sion af­ter he was even­tu­al­ly re­in­stat­ed.

In de­fence of the case, the PSC con­tend­ed that its pow­er to with­hold a por­tion of Sam­my’s salary fell un­der Reg­u­la­tion 89(3) of the PSC’s Reg­u­la­tions. It al­so con­tend­ed that un­der Reg­u­la­tion 89(4), Sam­my was on­ly en­ti­tled to re­im­burse­ment if he was ex­on­er­at­ed on ap­peal and it (the PSC) had the dis­cre­tion to de­cide if he was not cleared of all wrong­do­ing.

In de­cid­ing the case, Jus­tice Gob­in had to con­sid­er the ef­fect of Sec­tion 129(4) of the Con­sti­tu­tion on the reg­u­la­tions. The seg­ment of the Con­sti­tu­tion pre­cludes the PSC from im­pos­ing penal­ties on pub­lic of­fi­cers be­fore the con­clu­sion of the dis­ci­pli­nary process.

Jus­tice Gob­in not­ed that the reg­u­la­tions would have been valid un­der the 1962 Con­sti­tu­tion as the Sec­tion 129(4) pro­vi­sion was on­ly in­tro­duced when it (the Con­sti­tu­tion) was amend­ed when T&T be­came a re­pub­lic in 1976.

As a sec­ondary is­sue, Jus­tice Gob­in had to con­sid­er whether the PSC had the ju­ris­dic­tion un­der Reg­u­la­tion 89(4) to de­cide whether Sam­my should be giv­en his with­held salary af­ter his suc­cess­ful ap­peal.

Jus­tice Gob­in ruled that the PSC could not weigh in on the is­sue af­ter it was con­sid­ered by the PSAB.

In her judg­ment, Jus­tice Gob­in is­sued a se­ries of de­c­la­ra­tions over the reg­u­la­tions.

She al­so or­dered that Sam­my be paid the salary emol­u­ments that were wrong­ly with­held dur­ing his sus­pen­sion be­tween De­cem­ber 2018 and Oc­to­ber 2020, plus in­ter­est.

Sam­my was rep­re­sent­ed by Anand Ram­lo­gan, SC, Jayan­ti Lutch­me­di­al, Renu­ka Ramb­ha­jan, and Natasha Bis­ram.

The PSC and the Of­fice of the At­tor­ney Gen­er­al were rep­re­sent­ed by Na­dine Nab­bie, Ji­nai Chong Sing, Chelvi Ramkissoon, and Michelle Ben­jamin.