Judge: Finance Minister wrong to bypass BIR commissioner for top job

FINANCE Minister Colm Imbert has been found to have acted unlawfully and irrationally when he decided not to recommend an assistant commissioner of the Board of Inland Revenue (BIR) to the position of commissioner in 2021.

In a written decision on Tuesday, Justice Margaret Mohammed granted the declaration sought by Rohonie Ramkissoon, a field auditor and acting commissioner of the BIR, that Imbert’s decision was unlawful, null and void and of no effect.

The judge also quashed the minister’s decision.

However, she did not grant the order compelling the minister to reconsider Ramkissoon since, the judge said, Ramkissoon was on pre-retirement leave from March 23-July 10, 2022, so that relief was no longer applicable.

She also did not agree with the claim for damages based on the difference in salary Ramkissoon would have received had she been elevated to the top post at the BIR.

Ramkissoon contended Imbert arrived at his decision not to recommend her as chairman of the BIR on the basis of a “concern” he had arising out of an investigation.

She said she was bypassed on the basis that she knew of an investigation of which she was not the subject, and the decision was unlawful, arbitrary and made in a procedurally unfair manner, without giving her an opportunity to be heard.

In her ruling, Mohammed said the court could not “condone any action of a public authority who acts in violation of the principle of natural justice.”

She said the minister, as a public body, had the discretion to advise the President under section 80 of the Constitution to appoint the commissioner of the BIR.

“In the absence of any legislative procedure to guide the defendant, it is important that he understands that he has a duty to exercise his discretion lawfully, comply with the principles of natural justice and act reasonably and rationally when making his decision.

“It is very likely that in the future, the defendant will have to exercise his discretion to make recommendations for similar appointments and these declarations ought to serve as a deterrent to avoid the missteps as in this matter.”

The BIR comprises five commissioners, one of whom is appointed chairman by the President, on the advice of the Cabinet.

Ramkissoon’s lawsuit said she was questioned about an investigation into proposed tax refunds to two companies, and she acknowledged she was aware of a previous investigation involving the two entities, but that had been resolved.

It said no specific allegation was raised against her, nor was she told she was the subject of an investigation

Again, in March 2021, she was told another recommendation had been made to the President and that the minister could not recommend her because of concerns arising out of the VAT refund investigation.

In her ruling, Mohammed said Ramkissoon was “ambushed” at the meeting with the minister, who, she said, had a duty to inform her the meeting was for the post of commissioner and she would have to address concerns relating to the alleged VAT refunds claims.

“In my opinion, this was critical as the position the claimant was being interviewed for was the very senior position of CBIR (commissioner BIR) and not a junior clerk position.

“In my opinion, if the defendant had information concerning allegations of wrongdoing or misconduct prior to his meeting with the claimant and that she was a person of interest in the CTIU’s (Criminal Tax Investigation Unit) investigation, he had a duty at the meeting to bring these allegations to her attention and afford her a reasonable opportunity to respond.

“This was important as the defendant relied on the said information to make his decision that the claimant was not fit for the position of CBIR.”

The minister was ordered to pay Ramkissoon’s costs, to be assessed by a registrar.

Ramkissoon was represented by attorneys Dinesh Rambally, Kiel Taklalsingh, Stefan Ramkissoon and Kristy Mohan. The minister was represented by Senior Counsel Martin Daly, SC, Christopher Sieuchand and Sashi Indarsingh.