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ACHANA v. KASSENA-NANKANI LOCAL COUNCIL


  • New
  • 1962-06-25
  • HIGH COURT
  • 1 GLR 499-501
  • Print

DJABANOR, J.


Summary

Master and servant?-Interdiction?-Whether servant entitled to full salary for period of interdiction.Master and servant?-Gratuity and pension?-When payable.

Headnotes

The plaintiff, an employee of the defendant?-council, was interdicted in September, 1958, and placed on half salary. He was never at any time formally dismissed, but after June, 1959, the council stopped paying him anything at all. In July, 1960, he applied to the council for permission to retire. The council did not send any reply; the plaintiff on his own therefore left their employment. He instituted these proceedings for his pension and gratuity and for G407 3s. 4d. arrears of salary, contending that he was entitled to his full salary for the period that he was under suspension, and also for the period July, 1959 to June, 1960.

Judgement

ACTION for arrears salary, gratuity and pension. The facts are fully set out in the judgment of Djabanor, J.

By his writ of summons the plaintiff claimed from the defendants G407 3s. 4d. arrears of salary; G318 3s. 6d. gratuity; and G95 9s. 0d. pension from the 3rd July, 1960 to 5th July, 1961.

I will first take the claim for arrears of salary. The defendants' defence was that the plaintiff had been dismissed from their service and he was, therefore, not entitled to any salary from July, 1959, when he was so dismissed. The plaintiff claiming, as he does, full salary from July, 1958 till July, 1960, must prove that he had been in the employment of the defendants all that period. In September, 1958, the plaintiff was served with a letter of interdiction. As a result of that letter he was placed on half salary. That is the usual practice, and this half salary continues to be paid until dismissal or the withdrawal of the interdiction. The plaintiff is saying that because this interdiction was not followed up by a final dismissal notice he considered himself still in the full employment of the council. I am not in full agreement with that proposition. I am satisfied from the available evidence that the plaintiff was lawfully interdicted, but that either through ignorance or oversight the local council did not formally dismiss him. By exhibit B dated the 1st September, 1958, the plaintiff was requested to report to the finance and staff committee of the local council for interview and "to show cause why (he) should not be recommended to full council for interdiction". The terms of this letter are clear and unambiguous and need no interpretation.

By exhibit C, dated the 12th September, 1958, the plaintiff was informed that proceedings for his dismissal were being taken. From the proceedings of the minutes book, exhibit 5, it appears that the plaintiff was recommended for dismissal, but that no action was taken to implement it. I am satisfied that the plaintiff was lawfully interdicted but that he was not dismissed lawfully. In fact the council was aware of this, for I note that the following observation appears in the minutes of the 13th September, 1960, item 18/60:

"The Local Government Service Committee sat on the report and confirmed that Mr. Achana be dismissed ... but unfortunately the Interim Secretary failed to issue instructions to enable the Council to serve Mr. Achana with a letter of dismissal ...

The Committee further pointed out that as Mr. Achana was not served with a letter of dismissal, he should be given one month's salary in lieu of notice".

At page 5 of exhibit A, the Local Government Conditions of Service, 1956, appears the following:

"10. Dismissals

Dismissal should be in writing signed by the Clerk of the Council following an appropriate enquiry and decision of the Council or its Staff Committee?"

This in my view puts it beyond doubt that the alleged dismissal of the plaintiff never took place. If plaintiff had not written that letter asking permission to retire I would have considered him still in the employment of the defendant-council, though interdicted. [p.501]

The plaintiff claimed arrears of salary, at the full rate, from the date of his interdiction till 5th July, 1960 when he asked to retire. I do not think he is entitled to that. What in my view he is entitled to is his salary as an interdicted, and not yet dismissed, servant of the council. He had already received this salary to June, 1959. I think he is entitled to the same half salary from July, 1959 to June, 1960, or rather 5th July, 1960. This I calculate, subject to correction, as G131.

The plaintiff also claimed gratuity and pension. I do not know the basis of his calculation, but that is not important in view of the fact that I do not think he is entitled to it. As I understand it the gratuity and pension are paid to officers when they are retired from the service, not when they vacate their posts. The plaintiff obviously understood that the time for one's retirement is not a decision which can be taken by the retiring officer unilaterally. For this reason he sent in exhibit 4. The first paragraph of this letter reads: "I should be very grateful if you would accept this my humble application for retirement". The last paragraph said: "I shall be grateful if this request is given your kind consideration". The plain fact is that this application was not accepted. But the plaintiff nevertheless left the service of the defendants. In my view the plaintiff did not retire, but vacated his post. He is accordingly not entitled to either gratuity or pension

In the result I will give judgment for the plaintiff for G131 only. His claim for gratuity and pension fails. I will award the plaintiff the costs of this action assessed at 50 guineas.

Decision

Judgment for plaintiff.

Plaintiff / Appellant

E. O. Appiah

Defendant / Respondent

J. Owusu Yaw for T.A. Totoe

Referals

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