Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

Se­nior Coun­sel Anand Ram­lo­gan is call­ing for the Pub­lic Ser­vice Com­mis­sion (PSC) to be dis­band­ed af­ter his client re­mained un­de­feat­ed in an al­most two-decade le­gal bat­tle over be­ing deemed to have aban­doned her job af­ter miss­ing work for sev­er­al months be­cause of in­jury and preg­nan­cy.

Ram­lo­gan made the call yes­ter­day, days af­ter the Unit­ed King­dom-based Privy Coun­cil de­liv­ered its de­ci­sion in what should be the fi­nal law­suit in­volv­ing his client, Fa­vian­na Ga­jad­har, and the com­mis­sion over her ter­mi­na­tion.

In an un­usu­al and un­prece­dent­ed move on Mon­day, five Law Lords de­liv­ered their judg­ment up­hold­ing Ga­jad­har’s ap­peal im­me­di­ate­ly af­ter hear­ing sub­mis­sions at the UK Supreme Court build­ing in Lon­don, Eng­land.

Lord George Leg­gatt, who de­liv­ered the Board’s rul­ing, was es­pe­cial­ly crit­i­cal of the com­mis­sion’s con­duct in its pro­tract­ed lit­i­ga­tion against Ga­jad­har, which re­sult­ed in her be­ing award­ed more than $3.5 mil­lion in com­pen­sa­tion.

Lord Leg­gatt said: “The his­to­ry of this case is a sor­ry one, which re­gret­tably does no cred­it to the Pub­lic Ser­vice Com­mis­sion of T&T.”

In a state­ment, Ram­lo­gan said the com­mis­sion had cost tax­pay­ers mil­lions of dol­lars through un­fair and il­le­gal de­ci­sions.

“It (PSC) has fa­cil­i­tat­ed and per­pet­u­at­ed dis­crim­i­na­tion, vic­tim­i­sa­tion, and op­pres­sive con­duct to­wards ag­griev­ed pub­lic of­fi­cers with le­git­i­mate griev­ances,” Ram­lo­gan said.

“It serves no use­ful pur­pose be­cause un­for­tu­nate­ly, in­stead of be­ing an in­de­pen­dent safe­guard to pro­tect pub­lic of­fi­cers, it is noth­ing more than a rub­ber stamp for un­law­ful con­duct,” he added.

Ram­lo­gan ac­cused the PSC of turn­ing a blind eye to dis­crim­i­na­tion and tac­it­ly sup­port­ing un­fair treat­ment by back­ing un­jus­ti­fi­able and in­de­fen­si­ble de­ci­sions.

“It con­stant­ly shifts the goal­post for pro­mo­tions and fa­cil­i­tates the ma­nip­u­la­tion of the pro­mo­tion process to favour some to the detri­ment of oth­ers. This is wrong and must stop,” Ram­lo­gan said.

He called on Prime Min­is­ter Kam­la Per­sad-Bisses­sar to re­view the PSC’s con­sti­tu­tion­al ne­ces­si­ty, util­i­ty and func­tion. He al­so called on the com­mis­sion’s cur­rent mem­bers to re­sign im­me­di­ate­ly.

Ga­jad­har, who joined the T&T Prison Ser­vice in 2000, suf­fered a back in­jury and was ab­sent from du­ty for ex­tend­ed pe­ri­ods be­tween 2004 and 2006.

She be­came preg­nant dur­ing that pe­ri­od and sought to re­sume her du­ties three months af­ter her daugh­ter was born in June 2006.

Her su­per­vi­sor barred her from re­turn­ing, say­ing she had not prop­er­ly ac­count­ed for her pe­ri­ods of ab­sence.

Ga­jad­har said she had sub­mit­ted her sick-leave and ma­ter­ni­ty-leave cer­tifi­cates. How­ev­er, the PSC de­clared that she had ef­fec­tive­ly re­signed from her post, ef­fec­tive June 2007, on the ba­sis that she had been ab­sent with­out leave from April 2006.

Ga­jad­har filed a ju­di­cial re­view case against the com­mis­sion. The High Court and Court of Ap­peal up­held her case and or­dered the com­mis­sion to re­con­sid­er its de­ci­sion.

The com­mis­sion re­con­sid­ered the mat­ter in No­vem­ber 2017 and stood by its orig­i­nal de­ci­sion, this time cit­ing an is­sue with Ga­jad­har’s ma­ter­ni­ty-leave ap­pli­ca­tion un­der the Ma­ter­ni­ty Ben­e­fit Act.

Ga­jad­har brought an­oth­er law­suit against the sec­ond de­ci­sion, which was al­so up­held by the lo­cal courts.

The PSC con­sid­ered the case for a third time and re­in­stat­ed Ga­jad­har in April 2022.

How­ev­er, Ga­jad­har was not paid the salary and ben­e­fits owed to her for more than 15 years. The PSC in­struct­ed the Pris­ons Com­mis­sion­er to do so by “clas­si­fy­ing” her ab­sence from du­ty.

The PSC even­tu­al­ly ac­cept­ed that Ga­jad­har was owed her out­stand­ing salary and ben­e­fits but said she would be paid on­ly af­ter an au­dit was con­duct­ed.

In 2023, Jus­tice Frank Seep­er­sad up­held a case con­cern­ing the PSC’s breach of Ga­jad­har’s con­sti­tu­tion­al rights through its de­lay in pay­ing her out­stand­ing ben­e­fits.

Most of the com­pen­sa­tion award­ed by Jus­tice Seep­er­sad rep­re­sent­ed the salary and al­lowances Ga­jad­har would have re­ceived had the PSC not im­prop­er­ly ter­mi­nat­ed her. She was al­so award­ed sig­nif­i­cant com­pen­sa­tion for breach­es of her con­sti­tu­tion­al rights.

The Court of Ap­peal up­held most of Jus­tice Seep­er­sad’s find­ings, in­clud­ing those re­lat­ing to com­pen­sa­tion, but ruled that he was wrong to find that her con­sti­tu­tion­al right not to be de­prived of prop­er­ty with­out due process had been breached.

In de­ter­min­ing the fi­nal ap­peal, Lord Leg­gatt found that Jus­tice Seep­er­sad’s rul­ing should not have been over­turned.

He found that the Court of Ap­peal was wrong to rule that the right had not been breached, on the ba­sis that Ga­jad­har would have been en­ti­tled to her salary and ben­e­fits on­ly af­ter her lit­i­ga­tion had reached an ad­vanced stage in 2021.

“The de­ci­sion of the Court of Ap­peal was made on an er­ro­neous premise,” Lord Leg­gatt said.

He not­ed that Ga­jad­har was en­ti­tled to her salary and ben­e­fits for the en­tire pe­ri­od she spent chal­leng­ing the PSC’s vary­ing de­ci­sions, as all of those de­ci­sions had been proven un­law­ful.

“It is man­i­fest that the salary was be­ing held with­out due process as no dis­ci­pli­nary process had been fol­lowed,” Lord Leg­gatt said.

Ga­jad­har was al­so rep­re­sent­ed by Jodie Black­stock, Katie Lines and Jared Ja­groo. The State was rep­re­sent­ed by Robert Strang and Camil­la Hart.