Neutral Citation No:  IEHC 28
Record No. 295 JR/1988
Judgment delivered by O'Hanlon J., the 9th day of June, 1989.
The Applicant is a Technical Agricultural Officer who has been employed in the Department of Agriculture for the past nine years and upwards. He brings these judicial review proceedings for the purpose of challenging the validity of certain disciplinary measures taken against him within the Department in the year 1988.
The documentary evidence put before the Court, supplemented by oral evidence given when the Applicant and a representative of the Department, Andrew Irving, were cross-examined on the contents of their affidavits, satisfied me that 5the Applicant had been guilty of certain irregularities in the manner in which he carried out his duties in relation to the Beef Premium Scheme in the year 1987. The matters of complaint were put to him in detail in a letter dated the 28th January, 1988, from Mr. Irving, and were later the subject of discussion between representatives of the Department and the Applicant and his Trade Union before any disciplinary action was taken.
It appears to me that the Applicant was fully informed of the case he had to meet and was given every opportunity to make his response to the allegations made against him, and that the requirements of natural justice were fully complied with in the investigation which took place.
By letter dated the 27th July 1988 from Mr. Irving, the Applicant was informed that it had been decided that the following disciplinary action should be taken against him -
"1. Your increment due on 18 January 1988 will not be paid
2. You will not be allowed compete for any competitions within or outside the Department for 2 years
3. Your headquarters will be changed to the District Livestock Office, Limerick. Accordingly, please report to Mr. John Donegal DS on Monday 8th August for instructions as to your duties."
For the Applicant it was contended that the correct procedure had not been followed by the Department; that the matter should have been dealt with pursuant to the provisions of the Civil Service Regulation Act, 1956, section 15, sub-sec. (1) - (no loss of public moneys or public funds having taken place) and that any decision should have been made by the "Appropriate authority" as defined in sec. 2 of the Act (i.e. the Government or the relevant Minister of State) whereas it was made, in fact, by the Personnel Officer within the Department, holding the rank of Principal Officer.
It was submitted, on behalf of the Respondent, that the case was not sufficiently serious to warrant the matter being referred to the Minister for decision. There was no question of placing the Applicant on a lower rate of remuneration, or reducing him to a lower grade or rank, which were the only disciplinary measures contemplated in proceedings under sec. 15, sub-sec. (1) (a) of the Act. Other lesser transgressions, it was submitted, could be dealt with on a more informal basis, and in accordance with procedures worked out by agreement between the Departments and the Unions representing the various grades employed in the public service.
In addition, matters such as entitlement to payment of increments, the rules governing promotion within the Civil Service, and the determination of the officer's place of work from time to time, were regulated in part by the conditions of service accepted by the officer on taking up his appointment, and in part by Departmental Circulars issued from time to time, incorporating decisions made pursuant to Section 17 of the Civil Service Regulation Act, 1956.
One such Circular was Circular 9/87 which issued from the Department of Finance on the 17th September, 1987, dealing with payment of increments. It supplemented the Conditions of Service applicable in the case of an established position as Agricultural Officer in the Department of Agriculture Office which already contained a provision in the following terms:-
"Increments are granted annually if the officer's services are satisfactory."
The Circular in question provided (inter alia) as follows:
-"3. The onus is on individual officers to show that their performance during the year merits an increment. It follows that officers are not entitled to any prior formal warning of possible deferral of an increment. However, every effort should be made to ensure that officers are advised in good time of any perceived deficiencies in their performance and are given an opportunity to remedy them .....Deferral of Increments
13. If a certificate of satisfactory service cannot be given, payment of the increment will be deferred for a specified period e.g. three, six, nine or twelve months. On the expiration of the period, the officer's performance should be reviewed and the increment may be allowed with effect from the end of the review period provided the officer's service is satisfactory. The increment should not be restored with effect from an earlier date save in the most exceptional circumstances.
14. The deferment of an increment does not in itself necessarily involve the alteration of future incremental dates. If the period of deferment is less than one year, and if the officer's conduct and service continue to be satisfactory after the award of the deferred increment, the next increment may be allowed in the ordinary course on the date on which it normally falls due. If, however, the period of deferment extends to one year the officer's normal increment, in addition to the deferred increment, may be allowed at the end of the period of deferment if the officer's conduct and service have been satisfactory in the period."
I am of opinion that the Applicant was entitled to have the question of deferral of his incremental payment determined in accordance with the provisions of that Circular when the matter came up for consideration, but through an oversight on the part of the officers dealing with the case effect was given instead to an earlier Circular which, at the relevant time, had been superseded by the new Circular 9/87. For this reason the decision was a simple decision not to pay the increment due on the 18th January, 1988, whereas the correct course would have been to defer payment for a specified period, subject to review at the end of that period.
I think I can dispose of this part of the case briefly by saying that in my opinion the decision taken not to pay the increment which would, in the normal course of events, have become due on the 18th January, 1988, was invalid for the reasons stated. I do not consider that the decision to grant or defer payment of an increment need necessarily be taken prior to the date when the increment would normally become payable as investigations having a bearing on the decision might not be concluded by such date.
In such circumstances it would, in my opinion, be lawful to withhold payment of an increment for such reasonable period as was necessary to enable such investigation to be completed. Nor do I consider that the payment in error of the increment with one instalment of pay after the relevant date, when payment of the increment had not been duly sanctioned, prejudiced the situation of either party. Entitlement to the increment is made dependent on certification by a certifying officer as to satisfactory performance of duties by the person concerned during the previous year, and could not be affected by the payment in error of one increment without such certification. The matter must now revert back to the Department to consider whether in the circumstances of this particular case the increment should be paid in arrear as though it had been duly certified at the time, or whether the entitlement to receive the said increment should be reconsidered at this stage in the light of and in accordance with the provisions of Circular 9/87.
With regard to the second decision taken against the Applicant, i.e., that he would not be allowed to compete for any competitions within or outside the Department for 2 years, I can find no authority either in the Civil Service Regulation Acts, 1956 and 1958, or in any of the Circulars referring to decisions of the Minister for Finance under the powers conferred on him by Section 17 of the Act of 1956, for the imposition of this penalty. The issue of promotion is dealt with in Circular No. 12/49 which stipulates (inter alia) that before promotion is made to any post of a type referred to in the Circular (which would appear to incorporate any categories of promotion which might be open to the Applicant) the Head of the Department was required to certify, "(b) that the officer is fully qualified for the higher post and that he is the best qualified of the officers in the Department eligible for the post."
In the event of any dereliction of duty occurring on the part of an officer it is to be expected that the record of his service will contain particulars of any such matters which might count against him when the possibility of his promotion to a higher post is under consideration, but it appears to me that the decision taken in relation to the Applicant - if upheld - would have the effect of blocking all hope of promotion for him for a fixed period of two years in a manner which seems to be incompatible with the general discretion to promote subject only to compliance with the conditions outlined in Circular No. 12/49. This penalty is one of such significance that it cannot be regarded as one capable of being imposed independently of the disciplinary powers conferred expressly by the Acts, and the further conditions of service dealt with by Circulars emanating from the Department of Finance. Accordingly, on this issue also, I feel constrained to decide in favour of the Applicant that the penalty imposed was invalid and not authorised by law or by any terms of the Applicant's employment.
Finally, there is the matter of the direction that the Applicant's headquarters were to be changed to the District Livestock Office, Limerick, as and from the 8th August 1988. The Conditions of Service which apply in the case of the Applicant, and to Civil Servants generally specify that, "An officer's headquarters will be such as may be designated from time to time by the Head of the Department."
I am satisfied that the decision to move the Applicant from his previous place of employment to a new headquarters, (which involved the Applicant in some additional travel each week), was based on the bona fide belief arising as a result of the matters of complaint against the Applicant which had been investigated, that there was a danger that the Applicant was tending to relax the strict requirements of the Beef Premium Scheme when dealing with farmers close to home with whom he would be acquainted personally, and that it would be preferable to locate him in a new headquarters somewhat removed from his home area. I am satisfied that this was a decision made in good faith for administrative reasons and should not be regarded as a punishment or penalty imposed on the Applicant, although referred to as "disciplinary action" in the letter of the 27th July, 1988, addressed to the Applicant.
The decision, however, was taken by the Personnel Officer in the Department, who, at the time was a Principal Officer, and does not appear to have been ratified by the Head of the Department, as envisaged by the Conditions of Service, nor has it been shown to my satisfaction that the power to make this decision was lawfully delegated to the officer who made it.
On this basis only, I have come to the conclusion that that decision cannot stand. With regard to the general claim for relief made on behalf of the Applicant, I do not propose to grant relief by way of certiorari, as I feel that the situation can be adequately dealt with by a declaratory order, declaring that the decisions made in respect of the Applicant and numbered 1, 2 and 3 respectively in the letter of 27th July, 1988, addressed to the Applicant by the Personnel Division of the Department of Agriculture and Food, were ultra vires and invalid, and that is the form of order I propose to make in the proceedings, reserving to all parties liberty to apply if it should be necessary for them to do so.