Gallagher v Revenue Commissioners

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Blayney
• Judgment Date: 11 January 1991
• Neutral Citation: 1991 WJSC-HC 548
• Date: 11 January 1991
• Docket Number: [1989 No. 2433P],No. 2433p/1989

1991 WJSC-HC 548

THE HIGH COURT

No. 2433p/1989

GALLAGHER v. REVENUE COMMISSIONERS

BETWEEN

PAUL GALLAGHER

PLAINTIFF

AND

THE REVENUE COMMISSIONERS

AND

DAVID J. O'CALLAGHAN

DEFENDANTS

Citations:

FLYNN V AN POST 1987 IR 68

O'CONNELL, STATE V FAWSITT 1986 IR 362

CUDDY, STATE V MANGAN 1988 ILRM 720

FLANAGAN V UCD 1989 ILRM 449

CIVIL SERVICE REGULATION ACT 1956 S14

ROAD TRAFFIC ACT 1961 S49

Synopsis:

EMPLOYMENT

Suspension

Duration - Civil servant - Complaints - Irregularities - Investigation - Domestic enquiry - Delay - Natural justice - Fair procedures - Serious allegations of numerous defaults - (1989/2433 P - Blayney J. - 11/1/91) [1991] 2 IR 370 [1991] ILRM 632

|Gallagher v. Revenue Commissioners|

NATURAL JUSTICE

Fair procedures

Employment - Employee - Civil servant - Misconduct - Complaints - Suspension - Domestic enquiry - Delay - Employee's right to receive copy documentation - Right to be professionally represented - (1989/2433 P - Blayney J. - 11/1/91) [1991] 2 I.R. 370

|Gallagher v. Revenue Commissioners|

DELAY

Tribunal

Enquiry - Commencement - Employee - Civil servant - Misconduct - Complaints - Suspension - Duration - Domestic enquiry - (1989/2433 P - Blayney J. - 11/1/91) [1991] 2 IR 370 [1991] ILRM 632

|Gallagher v. Revenue Commissioners|

TRIBUNAL

Procedure

Fairness - Employee - Civil servant - Misconduct - Suspension - Enquiry - Delay - Right to documentation - Right to be professionally represented - (1989/2433 P - Blayney J. - 11/1/91)

|Gallagher v. Revenue Commissioners|

1 Judgment of Mr. Justice Blayney delivered the 11th day of January 1991

2 The Plaintiff is an Officer of Customs and Excise and, as such, a civil servant and a member of the staff of the Office of the Revenue Commissioners, the first named Defendants. The second named Defendant (to whom I shall refer as Mr. O'Callaghan) is the Personnel Officer of the Revenue Commissioners. By letter dated the 25th January 1988 from Mr. O'Callaghan to the Plaintiff, the Plaintiff was informed that he had been suspended from duty by the Revenue Commissioners as it appeared that he had been guilty of grave irregularity and grave misconduct warranting disciplinary action.

3 The Plaintiff immediately consulted his Solicitors who wrote asking for details of the alleged grave irregularity and grave misconduct. They were informed by Mr. O'Callaghan that the investigation into the allegations had not been concluded and that it was hoped to have it completed before the end of March 1988 and that details would then be furnished. No details having been furnished at the date indicated, the Plaintiff's Solicitors wrote again on the 3rd October 1988 asking for the particulars sought. They received an acknowledgment dated the 6th October saying that a reply would issue in due course.

4 By letter dated the 23rd of January 1989 sent to the Plaintiff by Mr. O'Callaghan, the Plaintiff was sent copies of eighteen sets of charges being brought against him, each set relating to a separate transaction and containing four charges similar in nature. The first set of charges was as follows:

"In relation to the Volvo lorry vehicle registration number and letters YSO 380T recorded by you as seized on the 19th day of February 1985, it is alleged against you as follows:-"

(1) That you falsely named the importer of the vehicle as Patrick McElvoy of Green Acres, Dundalk, County Louth in the report of the seizure prepared by you.

(2) That you deliberately undervalued the said vehicle for the purposes of Custom clearance under G.O. 55/80 as amended by G.O. 65/83 by attributing to the said vehicle a market value of IR£900 when in fact the market value of the vehicle on the date in question was IR£3036.

(3) That you failed to transmit a form 1017, being an advice form to the Gardai of clearance of road vehicle registration number and letters YSO 380T, to the Garda Siochana at Dundalk as you were obliged to do, contrary to instructions issued by the Revenue Commissioners.

(4) That you failed to procure the counter signature of the importer of the vehicle on official receipt no H. 1118958, as you were obliged to do, contrary to instructions issued by the Revenue Commissioners."

5 The Plaintiff was informed that he could make written or oral representations in regard to the charges; if he decided to make written representations, they should be submitted within two weeks; if he decided to make oral representations, his decision to this effect should be communicated within two weeks.

6 The Plaintiff's Solicitors replied on the 31st January stating that the Plaintiff required an oral hearing. They asked that prior to the hearing they should be furnished with copies of all statements made by the people making the alleged charges and copies of all written documents relating to the matter, and they stated that, if these were not furnished, an application would be made to the High Court for an Order prohibiting the hearing from taking place until they were furnished. The Plaintiff's Solicitors wrote again on the 6th February 1989 referring to certain occasions on which the Plaintiff had been interviewed in connection with the matters the subject of the charges and asked for a copy of the transcript of such interviews.

7 The Revenue Solicitor wrote on 8th February 1989 stating that Mr. O'Callaghan was agreeable to have an oral hearing, and that the date of the hearing had been fixed for Tuesday the 28th February; evidence would be given at the hearing by two senior Custom Officers, Mr. Darcy and Mr. Cullen, who had conducted the investigation, and the Plaintiff could make representations and call witnesses if he so wished. Neither of the parties at the hearing would have legal representation.

8 The Plaintiff's Solicitors wrote on the 9th February 1989 referring to the requests in their previous letters and asked for copies of the statements of Messrs. Darcy and Cullen, and asked also if the Revenue Solicitor's reference to neither party being entitled to legal representation meant that the Plaintiff would not be entitled to legal assistance at the oral hearing.

9 The Revenue Solicitor replied on the 13th February stating that the Plaintiff was not entitled to the production of the statements of Messrs. Darcy and Cullen nor to a copy of the transcript of their interviews with the Plaintiff; and that he was not entitled to be legally represented at the hearing.

10 The present proceedings were then instituted by the Plaintiff by Plenary Summons issued on the 27th February 1989 and on the same day the Plaintiff sought and obtained an interim injunction restraining the Defendants until after Monday the 6th March 1989 from holding any inquiry into the charges. By an interlocutory injunction granted on the 29th May 1989, the interim injunction was continued until the trial of the action.

11 The relief claimed by the Plaintiff falls to be considered under four separate headings:-

12 (1) The Plaintiff's suspension.

13 2 It is claimed that it was invalid ab initio or alternatively that it became invalid.

14 (2) Delay.

15 3 It is claimed that because of the delay in holding the oral hearing the Plaintiff would be greatly prejudiced in making his defence, and that because of this the Defendants should be permanently restrained from holding any such hearing.

16 (3) The Defendants" failure to make available the statements of Messrs. Darcy and Cullen and the transcript of their interviews with the Plaintiff.

17 4 It is claimed that the holding of the oral hearing should be restrained until these have been furnished.

18 (4) Legal representation at the oral hearing:

19 5 An Order is claimed permitting the Plaintiff to be legally represented at the oral hearing.

20 I have already dealt in part with the question of the Plaintiff's suspension. At the end of the case I held, following the decision of the Supreme Court in Flynn v. An Post 1987 I.R. page 68, that the Plaintiff's suspension had become invalid on the 1st May 1988 and I made an immediate Order to that effect. All that remains to be dealt with under this heading is whether the suspension was invalid ab initio, which in effect means between the 25th January 1988 and 1st May 1988.

21 In Flynn v. An Post, Mr. Justice Henchy said in his Judgment at page 75:-

"The second main ground of appeal rests on the submission, made unsuccessfully in the High Court and put forward again in this Court, that the purported suspension was invalidated because, in breach of the plaintiff's fundamental rights, he was not adequately informed of the misconduct relied on in support of his suspension. I readily accept that...