Prison officer to get salary illegally withheld by commission

A prison officer who was dismissed by the Public Service Commission (PSC) in 2019 for discreditable conduct, but successfully appealed in 2020, has again won a lawsuit against the commission, over the payment of a portion of his salary.

Caramchand Sammy will receive all the sums “unlawfully withheld” from him after they are properly calculated by the PSC.

Justice Carol Gobin made this order in a decision on Monday.

Sammy challenged the legality of the PSC's decision to continue to withhold a quarter of his salary during the period of his suspension, between September 19, 2018, when he was slapped with the three charges, and the appeal board’s ruling on March 9, 2020.

On September 19, 2018, Sammy was charged for using a cell phone to take photographs of an inmate who had been stabbed by another inmate. Officers are not allowed to bring their cellphones into prisons.

Sammy, who was assigned to the infirmary of the Maximum Security Prison, Arouca, shared the photographs in a phone chat with infirmary officers.

A quarter of his salary was withheld and on March 18, 2019, he pleaded guilty to the charge. He asked for a reprimand and discharge but, instead, the commission deducted a month’s salary for two charges and dismissed him from the prison service.

Sammy appealed to the Public Service Appeal Board (PSAB), which overturned the PSC’s decision and reprimanded and discharged him on two charges. It set aside the order of dismissal and imposing a $5,000 fine.

The PSAB’s orders were served on the PSC and Sammy was told that once he notified the prison service of his reinstatement, he would be able to resume work and receive the unpaid salary owed to him.

However, he was later told while the dismissal had been lifted, he would not receive the pay that had been withheld, despite the PSAB order.

In defence of its position, the PSC argued that suspension and withholding a part of a salary was provided for under regulation 89, and if found guilty, an officer was not entitled to have his salary restored. It also argued that regulation 89 was “saved law,” as it predated the 1976 Constitution, which sets out the disciplinary powers of the commission.

But in her ruling, Gobin held that the regulation relied on by the PSC was unlawful and inconsistent with the Constitution.

She said regulation 89 was not a stand-alone provision but a part of an elaborate disciplinary procedure established by the regulations.

Gobin said when the appeal process was invoked, it rendered the PSC
functus, or no longer having authority, in the matter.

“It would follow that no further decision or deprivation could have been imposed on the officer,” she held. “To allow the PSC to exercise any of those first-instance functions post-appeal undermines the jurisdiction of the PSAB and allows a residual power in the PSC long after its disciplinary jurisdiction has been exhausted.”

In her ruling, Gobin granted the declarations that the decision not to restore the portion of the salary withheld during suspension was illegal, and that the PSC's decision to determine what he should be paid was also illegal.

She quashed the decision to withhold part of his salary and also granted Sammy several declarations relating to the constitutionality of the decisions.

Sammy will receive all salary emoluments wrongfully withheld, as well as the income he was not paid from December 2018-October 2020, with five per cent interest per annum.

The PSC was also ordered to pay Sammy’s costs for a senior counsel and two junior attorneys.

He was represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Renuka Rambhajan, Natasha Bisram and Jared Jagroo.

The PSC was represented by Nadine Nabbie, Jinai Chong Singh, Chelvi Ramkissoon and Michelle Benjamin.