O'Mahony v Arklow Urban District Council

JurisdictionIreland
Judgment Date01 January 1967
Date01 January 1967
Docket Number(1963. No. 435 P.)
CourtSupreme Court

Supreme Court.

(1963. No. 435 P.)
O'Mahony v. Arklow Urban District Council
TADG O'MAHONY
and
ARKLOW URBAN DISTRICT COUNCIL and THE MINISTER for LOCAL GOVERNMENT

Local government - Town clerk - Irregularities in carrying out office - Suspension from office - Removal from office - Procedure - Order of Minister consenting to removal from office - Whether such consent validly sought - Whether removal in pursuance of such consent valid - County Management Act, 1940 (No. 12 of 1940), s. 19 - Local Government Act, 1941, (No. 23 of 1941), ss.4, 25, 26, 27 - Local Government (Officers) Regulations, 1943 (Stat. R. & Or., No. 161 of 1943), Arts. 3, 9, 31, 32.

Appeal from the High Court.

The plaintiff, Tadg O'Mahony, was town clerk of Arklow Urban District Council. He had been guilty of certain irregularities in the exercise of that office and the County Manager for Wicklow suspended him from office by an order, made on the 6th February, 1961, in the following terms:—"Suspension of Mr. T. O'Mahony, Town Clerk: Order: Since Mr. Tadg O'Mahony, Town Clerk to Arklow Urban District Council, has absented himself without leave and has failed to perform satisfactorily the duties of his office it is hereby decided that he be suspended from the performance of the duties of the office of Town Clerk, while his failure to perform satisfactorily his duties is being enquired into and the disciplinary action in regard thereto is being determined."

The above order was made under the powers conferred on the Minister for Local Government and the local authority by s. 27 of the Local Government Act, 1941.

After further investigation the County Manager decided to apply to the Minister, under the procedure laid down in s. 26 of the Local Government Act, 1941, for the consent of the Minister to remove the plaintiff from office as town clerk of the Arklow Urban District Council. On the 25th March, 1961, the County Manager made an order in the following terms:—

"Removal from office of Mr. Tadg O'Mahony, Town Clerk, Arklow: Order:

Notice to be given to Mr. Tadg O'Mahony, Town Clerk, Arklow, that it is intended to apply to the Minister for Local Government for consent to remove him from the office of Town Clerk, Arklow, under the provisions of section 26 of the Local Government Act, 1941, and the Local Government (Officers) Regulations, 1943. The reasons for the application for consent of the Minister to such removal from office are:—

The failure of this officer to perform satisfactorily the duties of the office of Town Clerk, and misconduct in relation to such office . . . Mr. O'Mahony to be informed that the Minister, in pursuance of the Local Government (Officers) Regulations, 1943, will consider any representations in relation to this removal from office as he (Mr. O'Mahony) may send to the Minister before the expiration of seven days after the giving of this notice."

A copy of the above order together with a covering letter was sent to the plaintiff by registered post on the day on which it was made. The letter was in the following terms:—"I wish to notify you that application has been made to-day to the Minister for Local Government, for consent to remove you from the office of Town Clerk, Arklow. This application is being made under section 26 of the Local Government Act, 1941, and the Local Government (Officers) Regulations, 1943.

I am to inform you that the reasons for the application for the consent of the Minister to your removal from office are:

Failure to perform satisfactorily the duties of the office of Town Clerk, Arklow, and misconduct in relation to such office.

These reasons are set out in more detail in the order which has been made to-day, and copy of which is attached. A copy of this order relating to the seeking of consent to your removal from office is also being sent to-day to the Department of Local Government.

The Minister for Local Government, in pursuance of the Local Government (Officers) Regulations, 1943 (Article 31), will consider any representations in relation to your removal from office, which you may submit to him before the expiration of seven days after the giving of this notice."

There was no order that application actually be made to the Minister for his consent to the removal of the plaintiff; in fact, no application to remove the plaintiff from office was ever made by the County Manager, as appeared from his evidence in cross-examination. The Minister made an order on the 3rd November, 1961, in the following terms:—

"Removal from office of Mr. Tadg O'Mahony Town Clerk, Arklow Urban District Council.

I hereby (1) terminate the suspension of Mr. T. O'Mahony, and consent to his removal from the office of Town Clerk, Arklow U.D.C., with effect from the 7th November, 1961; and (2) direct that the remuneration which he would have received in respect of the period of suspension had he not been suspended shall be wholly forfeited."

The plaintiff sought the following relief:— (i) A declaration that the order dated the 6th November, 1961, made by the first-named defendants through their executive officer, the County Manager for the County of Wicklow, whereby the first-named defendants purported to remove the plaintiff from the office of town clerk of the Urban District of Arklow and the purported consent in writing, dated the 4th day of November, 1961, of the second-named defendant to the making of such order are and were ultra vires and void, inoperative and of no legal effect;

(ii) A declaration that on and from the 7th November, 1961, the plaintiff was and is the permanent and pensionable town clerk of the Urban District of Arklow in the County of Wicklow;

(iii) An order that an account be taken of the salary and emoluments of his said office of town clerk due to the plaintiff from the 7th day of November, 1961, to date;

(iv) An order for the payment by the first-named defendants of the amount found due upon the taking of such an account;

(v) An order for further and other relief as found necessary;

(vi) Costs.

The plaintiff appealed to the Supreme Court (1) from so much of the above judgment as held that the suspension of the plaintiff from office was valid. The grounds of his appeal were:— that the learned Judge was wrong in law and in fact in holding 1, that the plaintiff has been since the 6th day of February, 1961, and still is validly suspended from the performance of the duties of the office of Town Clerk of the Urban District of Arklow;

2, That the second-named defendant's consent to the termination of the plaintiff's suspension from his office of Town Clerk to the Urban District Council of Arklow with effect from the 7th November, 1961, was invalid;

3, That the plaintiff was not entitled to assert and thereby rely on the termination of his suspension made by the second-named defendant by his order of the 3rd November, 1961;

4, That the invalidity of the proceedings in relation to the giving of the second-named defendant's consent to the removal from office of the plaintiff invalidated the termination of his suspension;

5, That there was no inquiry into the alleged failure of the plaintiff in the performance of his duties, misconduct or unfitness for office and determination of disciplinary action to be taken in regard thereto;

6, That the invalidity in the method of securing the second-named defendant's consent to the removal from office of the plaintiff nullified the inquiry into his conduct and the determination of the disciplinary action to be taken;

7, That the plaintiff was not entitled to an account of the salary and emoluments of his office from the date of the termination of his suspension, namely, the 7th November, 1961;

8, That there was an inconsistency in finding that the plaintiff's suspension was not terminated having regard to the declaration that he was on and from the 7th day of November, 1961, and still is the permanent and pensionable Town Clerk of the Urban District of Arklow;

9, Having regard to the fact that it was within the knowledge of the defendants that the County Manager had not properly applied for the consent of the Minister for Local Government for the removal from office of the plaintiff, the plaintiff, by reason of having to amend his pleadings to assert the fact that there was no proper application, should be deprived of all his costs of the action.

The defendants, the Arklow Urban District Council, in pursuance of Order 58, Rule 10, of the Rules of the Superior Courts gave notice that the Council would seek to have the order of Kenny J. varied by deleting the declaration that the plaintiff had not been effectively removed from the office of town clerk and in lieu thereof that it be declared that he had been so removed.

M. was town clerk of Arklow Urban District Council. Owing to certain irregularities in the performance of his office he was suspended from duty by the County Manager of Wicklow. Subsequently, with the consent of the Minister for Local Government under s. 26 of the Local Government Act, 1941, he was removed from his office and as a result forfeited his salary from the commencement of the period of his suspension in February, 1961. The Local Government Act, 1941, provides for various procedures for removing local government officials from office and the proper method to be adopted for the removal of M. was that set out in s. 26, including a requirement that the local authority should first obtain the consent and authority of the Minister for Local Government for the removal. The Minister is empowered under the section to define the procedure to be adopted and the conditions to be fulfilled in relation to the exercise of the powers conferred by the section, which provides that the powers shall be exercised by means of regulations. Briefly, the regulations required (by article 31) for the exercise of the power of removal from office of an official certain conditions, namely, (a) that before applying to...

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