JUWAHEER T. D. v Dr V.

JOGOO

2017 SCJ 71

Record No. 113135

THE SUPREME COURT OF MAURITIUS

In the matter of:

Thanika Devi Juwaheer

Applicant
V

1. Dr Vasantt Jogoo
2. Roomeela Mohee
3. University of Mauritius
4. Professor Anwar Hussein Subratty
5. Neha Devi Goorah
6. Tejnarain Chumroo
7. Shailen Gungah
8. Subhashini Gopee

Respondents
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JUDGMENT

This is an application for leave to apply for a judicial review of the decision making
process relating to a decision of the Staff Committee of the respondent No. 3 dated 18 March
2016 to set up a Disciplinary Committee in relation to two charges levelled against the applicant.

The grounds on which that decision making process was being challenged were initially
that the decision was illegal, biased, wrongful, arbitrary, ultra vires, driven by improper motives,
grounded on irrelevant considerations and Wednesbury unreasonable. However, at the hearing
of this application, Mr A. Domingue S.C., Counsel for the applicant, indicated that he would
press one ground only, namely the illegality of the decision, the contention being that the Staff
Committee, which set up the Disciplinary Committee, was not legally empowered to do so in
respect of the applicant, the Pro-Vice-Chancellor (Planning and Resources) at the University of
Mauritius.

This contention is being resisted by respondents 2 to 8, respondent No. 1 the former

Chairman of the Staff Committee of the third respondent having left default. Respondent No. 2
is the Vice-Chancellor of respondent No. 3 and a member of the Staff Committee. Respondents
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Nos. 4 to 7 are four other members of the Staff Committee, respondent No. 7, the Director of
Human Resources of respondent No. 3, being a co-opted member in relation to non-academic
staff issues. Respondent No. 8 is the Secretary of the Staff Committee.

The sole issue in this application for leave is whether the applicant has an arguable case
that the Staff Committee was not legally empowered to set up the Disciplinary Committee in
relation to the two charges levelled against the applicant.

It is the contention of Mr Domingue S.C. that, having regard to (i) the relevant provisions
of the University of Mauritius Act and the Statutes of the University of Mauritius 2013 [GN No.
93 of 2013], and (ii) section 28 (1) (a) of the Interpretation and General Clauses Act, there is an
ambiguity in the law in relation to the issue raised. Accordingly, he submits, leave should be
granted to apply for judicial review in view of the law being interpreted.

On the other hand, Miss Moonshiram, Counsel for the defendants No. 2 to 8, has
submitted that the law is clear on the issue and provides unequivocally for the power of the Staff
Committee to set up a Disciplinary Committee in respect of charges against any member of the
staff of the respondent No. 3, without distinction, and therefore including the applicant as Pro-
Vice Chancellor (Planning and Resources).

The Provisions of the University of Mauritius Act

Section 12 of the University of Mauritius Act [Act 17/1971] provides for two Pro-Vice-
Chancellors of the University who are appointed in such manner and on such terms and
conditions as are prescribed by the Statutes of the University. Those Statutes are, by virtue of
section 20 of the Act, made by the Council of the University set up under section 15 as the
executive body having general control over the conduct of the affairs of the University. The
Statutes may, under section 20 (1) (b), provide for, inter alia, the power and functions of such
bodies as the Council or the Senate (set up under Section 16 as the academic authority of the
University) thinks proper to set up and to be prescribed or regulated.

The provisions of the Statutes of the University of Mauritius 2013

The Statutes of the University of Mauritius 2013 [GN No. 93 of 2013] were made by
Special Resolution of the Council after consultation with the Senate under section 20 of the Act.
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Article 8 (1) of those Statutes provides for the appointment by the Council of the Pro-Vice-
Chancellor (Planning and Resources) after consideration of a report of a committee the
composition of which is prescribed. Article 17 (1) of the Statutes provides for a Staff Committee,
appointed by the Council, which shall make recommendations to the Council on all
appointments in the University other than that of, inter alia, the Pro-Vice-Chancellor (Planning
and Resources).

Article 17 (2) of the Statutes then reads as follows:

The Staff Committee shall in addition:

(a) be generally responsible for staff matters such as conditions of

service, criteria for appointments, promotions, transfer of academic
staff, discipline and welfare.

(b) []

(c) appoint a Disciplinary Committee.

Under Article 30(1) the Staff Committee and Disciplinary Committee are subsumed
under the appellation of Statutory Committees, and under Article 30 (14), every Statutory
Committee may appoint such Committees consisting wholly or partly of its own members, as it
thinks fit, and any Committee so appointed may in the same manner appoint Sub-committees.

Section 28 (1) (a) of the Interpretation and General Clauses Act

Section 28 (1) (a) of the Interpretation and General Clauses Act [Act 33/1974] which,
appears under the general heading Powers included in power to appoint reads as follows:

(1) Where an enactment confers a power or imposes a duty to make an

appointment or to constitute or establish any board, tribunal,
commission, committee or similar body, the person having the power
or duty may also

(a) remove, suspend, dismiss or revoke the appointment of, and re-
appoint or reinstate, any person appointed in exercise of the power
or duty

Having considered all the above provisions to which our attention was drawn by Counsel
for the applicant, we are unable to find any ambiguity which arises in relation to the power of the
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Staff Committee to set up a Disciplinary Committee in connection with the charges levelled
against the applicant as Pro-Vice-Chancellor (Planning and Resources).

It is clear to us that

(a) the applicant is appointed by the Council and that therefore, by virtue of
section 28 (1) (a) of the IGCA, the power to remove, suspend, dismiss
or revoke the appointment of the applicant devolves on the Council;
(b) this in no way detracts from the powers of the Staff Committee, under
Article 17 (2) of the Statutes of the University, to exercise its general
responsibility for staff matters, including discipline, and to appoint a
Disciplinary Committee. The applicant, as Pro-Vice-Chancellor
(Planning and Resources), is nowhere exempted from the application of
section 17 (2) of those statutes.

It is significant, as rightly pointed out by Counsel for the respondents Nos. 2 to 8, that

(i) the sole provision for the institution of a Disciplinary Committee is that under
section 17(2) of the Statutes of the University and nowhere is any other specific
disciplinary procedure provided in respect of the Pro-Vice-Chancellors;
(ii) a letter filed by the applicant herself (as annex 1 to her affidavit dated 11 July
2016) indicates that the Council of the University of Mauritius considers that it is
not mandated to set up a Disciplinary Committee and that it is the Staff
Committee which has the power to appoint a Disciplinary Committee.

As no ambiguity arises, in our view, in relation to the interpretation of the law regarding
the issue raised, we hold that the applicant has no arguable case to apply for a judicial review
and accordingly set aside the application. With costs.

E. Balancy
Senior Puisne Judge

A. F. Chui Yew Cheong

Judge
28th February 2017
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Judgment delivered by Hon. E. Balancy, Senior Puisne Judge

For Applicant : Mr. G. Noel, Attorney-at-Law

Mr. A. Domingue, Senior Counsel

For Respondent No. 2-: Miss K. Mardemootoo, Attorney-at Law

Miss Y. Moonshiram, of Counsel

For Respondent No. 3-8: Mrs A. Ghose, Attorney-at-Law

Miss Y. Moonshiram, of Counsel