DR V.

PYNEEANDEE v THE MINISTRY OF HEALTH & ANOR

2016 SCJ 526
Record No.76657
THE SUPREME COURT OF MAURITIUS
In the matter of:
Dr Veyasen Pyneeandee
Plaintiff
V
1. The Ministry of Health
2. The State of Mauritius
Defendants
----------------------JUDGMENT
The plaintiff is suing the defendants for breach of contract. According to the plaintiff,
whilst he was under a contract of employment with the defendant No. 1 as Specialist/Senior
Specialist in the field of Obstetrics and Gynaecology in the Ministry of Health and Quality of life,
that Ministry the defendant No. 1 has abusively and wrongly sought to prevent him from
undertaking private practice in clinics or otherwise and as a result of its illegal acts and doings
he has sustained damage and prejudice. On the basis of these averments, the plaintiff alleges
that the defendants are jointly and in solido bound to make good to him the damage and
prejudice sustained by him and assessed at 10 million rupees.
Material facts not in dispute
The following materials facts are not in dispute:
(1) In a letter dated 2 April 1998 (Document H), written from Australia
and addressed to the then Permanent Secretary of the defendant
No. 1, the plaintiff referred to an interview at the Public Service
Commission and stated that as he had a promising career as a
consultant in U.K and a good job in Australia he would not be able
to accept working in Mauritius unless he was allowed to practise in
both the public and private sectors.

(2) By letter (Document K) signed by the then Permanent Secretary of

the Ministry of Health and Quality of Life (the defendant No. 1), the
date of which should be read as 3 July 1998 instead of 3 June
1998 as typed by error, the plaintiff was offered contract
employment as Adviser in Obstetrics & Gynaecology in that
Ministry. That letter in fact mentioned that the offer to the plaintiff of
such employment was enclosed. Indeed a document dated 3 July
1998 containing the offer of such employment on a contract basis
for one year on specified terms and conditions was enclosed.
(3) The letter (Document K) also informed the plaintiff that the Minister
of Health and Quality of Life had, in virtue of the powers vested in
him under section 6 of the Public Health Act, authorised him to
undertake private practice in the field of Obstetrics and
Gynaecology under the terms and conditions mentioned in an
annex to the letter.
(4) Following a selection exercise by the Public Service Commission in
relation to the post of Specialist/Senior Specialist, a letter dated 9
November 1998 (Document N) was addressed by the then
Permanent Secretary of the Defendant No. 1 to the plaintiff. The
material parts of that letter read as follows:
I am directed by the Public Service Commission to inform you
that the Commission has decided to offer you appointment as
Specialist/Senior Specialist in the field of Obstetrics &
Gynaecology in the Ministry of Health and Quality of Life
with salary at the rate of [.]
2. [..]
3.Your appointment will take effect from the date of your
assumption of duty and will be on twelve months probation. At
the end of your probationary period, if you are favourably
reported upon, you will be confirmed and will then be placed on
the permanent and pensionable establishment.
4 [..].

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5. Your appointment will be subject to the laws, rules and
regulations governing the public service of Mauritius and to the
Public Service Commission Regulations for the time being in
force as appropriate.
6. I am to request you to inform me in writing within a week of the
date of this letter whether you accept appointment on the above
terms or not. If you accept, you should report for duty to the
Regional Health Director, Sir S. Ramgoolam National Hospital on
Monday 16 November 1998.
(5) The plaintiff accepted the offer of appointment as Specialist/Senior
Specialist and assumed duty accordingly.
(6) After this appointment, the plaintiff continued private practice
without making an application for the authorisation of the Minister
of Health under Section 6 of the Public Health Act (which provides
that medical officers of the Ministry of Health shall not undertake
private practice except with the special permission of the Minister)
(7) By letter dated 29 December 1999 [Document R] the then
Permanent Secretary of the defendant No. 1 wrote to the plaintiff
as follows:
It has been reported to me that you have committed several
serious short comings in the performance of your duties as
Specialist/Senior Specialist (Obstetrics and Gynaecology), viz
neglect of duty, indulging in private practice without authority and
unsatisfactory attendance.
2. In the above circumstances, I have decided to interdict you
from the exercise of the powers and functions of your office of
Specialist/Senior Specialist (Obstetrics & Gynaecology) forthwith
with a view to initiating disciplinary action under section 37 of the
Public Service Commission Regulations for your dismissal.
3.You are hereby interdicted from the exercise of the powers and
functions of your office of Specialist/Senior Specialist (Obstetrics
and Gynaecology) forthwith.
4. During the period of your interdiction, you will continue to
receive the salary of your post []

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(8) Another letter also dated 29 December 1999 [Document S] and
addressed by the then Permanent Secretary of the defendant No.
1 to all pharmacists and all licensees of pharmacies read as
follows:
Suspension of medical practitioner
You are hereby informed that the Ministry of Health has
suspended Dr. Veyasen Pyneeandee, Specialist/Senior
Specialist (Obstetrics & Gynaecology) from the practice of
medicine as from 29 December, 1999.
You are consequently requested not to process any
prescription from the abovenamed doctor and to refer such
prescriptions to the undersigned or to the Medical Council of
Mauritius (phone: 698 8304) immediately.
(9) In a letter dated 5 January 2000 (Document T) the then Principal
Medical Officer wrote on behalf of the then Permanent Secretary of
defendant No. 1 to the Director of the private clinic known as
Medical and Surgical centre, where the plaintiff practised
medicine, to inform the said Director that the plaintiff had no right to
private practice as per the Public Health Act in force and was also
interdicted to practise in the Ministry of Health and Quality of life.
The letter further read as follows:
You are hereby requested to ensure that the above mentioned
officer does not involve in private practice at your hospital
failing which legal action will be taken against both your
hospital and the doctor in question. Any decision to allow him to
work at your hospital will be your sole responsibility.
(10)

An annual practising certificate (Document U) was issued by

the Medical Council of Mauritius on 17 January 2000 certifying that

the plaintiff, as registered medical practitioner, had complied with
the provisions of the Medical Council Act 1999 and its regulations
in respect of the annual practising fee and was accordingly
entitled to practise as a specialist during the year 2000.

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(11)
his

On 20 January 2000, the plaintiff submitted his resignation from

post

of

Specialist/Senior

Specialist

(Obstetrics

and

Gynaecology) with effect from that same date.

The crucial issue in this case
It is agreed by Counsel on both sides that the crucial issue in this case is whether the
privilege of private practice had or had not lapsed upon the plaintiff accepting appointment in a
substantive capacity as Specialist/Senior Specialist in the fields of Obstetrics and Gynaecology.
It is the case for the plaintiff that his privilege of private practice did not lapse in
November 1998 when he took up the post of Specialist/Senior Specialist as he was never made
aware that his acceptance of that post would entail such a result. Had he been made aware of
that, he would have declined the post in view of his stand, taken in his letter dated 2 April 1998,
written from Australia, where he indicated he would not be prepared to accept working in
Mauritius unless he was allowed to practise in both the public and private sector.
The case for the defendant, on the other hand, is that the privilege of private practice
had been granted in relation to the plaintiffs employment as Adviser in Obstetrics and
Gynaecology and lapsed upon the plaintiffs acceptance of employment as Specialist/Senior
Specialist (Obstetrics and Gynaecology).
It is further contended that, contrary to the assertion of the plaintiff, he was fully made
aware that his acceptance of the latter post entailed the loss of the privilege of private practice
granted in relation to the former post.
The dispute about whether Document L was annexed to Document K
It is a matter of dispute between the parties whether a document mentioned as an annex
in the letter (Document K) which enclosed the offer of employment for the first post, was in fact
annexed. According to the testimony of Mr A. Seetanah, Human Resource Manager of the
respondent No. 1, there was an annex (Document L) relating to private practice attached to
Document K. According to the plaintiffs testimony, however, no such annex was enclosed. In
my view, whether that annex was enclosed or not is not material to the crucial issue since the
annex simply set out the conditions of private practice when authorised.

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Assessment of the respective contentions in the light of the evidence
The undisputed part of the evidence shows, in my view, that there were two separate
contracts of employment, as submitted by Counsel for the defendants. The two posts in turn
held by the plaintiff were clearly distinct from each other. The first post was that of Adviser in
Obstetrics and Gynaecology and was on a contractual basis for one year. The contract was
obviously terminated by both parties upon the plaintiff accepting the post of Specialist/Senior
Specialist (Obstetrics and Gynaecology) after a selection exercise held in relation to that
specific post.
The plaintiffs contention, however, is that the privilege of private practice, which was
granted in respect of the first post, did not lapse but continued to exist following his appointment
to the second post.
After anxious consideration, I have come to the conclusion that the plaintiffs contention
is untenable for the following reasons:
(1) I find substance in the submission of Counsel for the defendants that
the second post being a different post carrying with it other conditions
of service, the plaintiff was not entitled to assume that the privilege of
private practice, which was granted in respect of the first post, would be
applicable to the second post. It is significant that, whilst the offer of
employment for the first post, being on a contractual basis for a period
of one year, was made by the defendant No. 1, the offer of appointment
to the second post, which was intended to be on a permanent basis
following a period of probation, was made by the Public Service
Commission. It is also significant that in the letter (Document K)
enclosing the offer of appointment to the first post, it was specifically
mentioned that the Minister of Health and Quality of Life had under
section 6 of the Public Health Act, authorized the plaintiff to undertake
private practice in the field of Obstetrics and Gynaecology whereas no
such mention was made in the offer of appointment (Document N) to
the second post.
(2) As a matter of law, the Public Service Commission, which appointed
the plaintiff to the second post, has nothing to do with the granting of

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authorisation to engage in private practice whilst working as a public
officer. Such authorization is granted by the Minister of Health under
section 6 of the Public Health Act. The letter of offer relating to the
second post (Document N) made it clear that the appointment would be
subject to the laws, rules and regulations governing the public service
of Mauritius. Accordingly, upon accepting appointment to the second
post by the Public Service Commission, the applicant had, if he wanted
to enjoy the privilege of private practice whilst engaged in that post, to
apply for the Ministers authorisation under section 6 of the Act. This, he
did not do and the fact that he did not do so as a result of ignorance of
the law would be no excuse.
(3) The plaintiffs testimony to the effect that he was not made aware that
the privilege of private practice was not applicable to his second post
cannot, in my assessment, outweigh the detailed testimony of Mrs R.
Veerapen to the contrary. At the material time Mrs Veerapen was
occupying the post of Principal Assistant Secretary at the Ministry of
Health. She testified to the effect that she had several meetings with
the plaintiff following his appointment to the second post, and that she
did inform him that the privilege of private practice, which was granted
in respect of his previous post, did not apply in relation to his second
post such that he had to apply anew for the privilege of private practice.
According to her testimony, he always said yes he would apply but he
never so applied.
I have taken into consideration that, as submitted by Counsel for the
plaintiff, the above version of Mrs Veerapen was not put to the plaintiff
in cross-examination. However, it was open to Counsel, in the
circumstances, to move that the case of the plaintiff be re-opened to
allow him to reply to the testimony of Mrs Veerapen. In the absence of
such a motion, Counsel for the plaintiff cannot justifiably submit that the
testimony in question from Mrs Veerapen should not be acted upon.

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In the light of my above conclusions, I hold that the plaintiff has not established on a
balance of probabilities that the defendants have committed any breach of contract by the acts
of defendant No. 1 in relation to his continued exercise of private practice subsequent to his
assumption of the second post.
The amended plaint with summons is accordingly set aside. With costs.

E. Balancy
Senior Puisne Judge
28th December 2016

-----------------------

For Plaintiff :

Mr. Y. W Appado, Attorney-at-Law

Mr. A. Domingue, SC

For Defendants:

State Attorney
State Counsel