The Gazette 1981

SEPTEMBER 1981

GAZETTE

Jacob was dismissed and, at a special meeting on 10 January 1900, Dr. Blaney was appointed to this post. Dr. Jacob contended unsuccessfully that the resolutions passed at these meetings were null and void and that Dr. Blaney's appointment was irregular. Dr. Jacob also contended unsuccessfully that he could only be dismissed for cause, otherwise he would be entitled to reinstatement. It was held that the surgeon of an infirmary is merely the paid servant of the Governors; the Governors may dismiss him arbitrarily. (5) R. (McMorrow) r. hitzpatrick I 19181 2 l.R. 103. This case dealt with the construction of S. 29 of the Petty Sessions Clerk (Ireland) Act, 1858. which gave the Lord Lieutenant full power to prescribe conditions of age for candidates for the post of Petty Sessions Clerk; this office was to be held at the pleasure of the local Justices and of the Lord Lieutenant. This was a motion by the plaintiff to make absolute a conditional order of Mandamus directed to the Justices of the Peace for a Petty Sessions District in Leitrim, commanding them to elect a clcrk of Petty Sessions for that district in the manner required by law. The limits of age were set out in the regulations. The plaintiff was appointed Clerk by the local Justices, although he was under the prescribed age; the Lord Lieutenant would not accept the appointment and ordered a fresh election. This was ultimately held on 3 1 August 1917. The plaintiff went forward again as a candidate and secured a majority of votes from the Justices, but Captain Fitzpalrick, R.M., declared the next candidate elected, as he was within the prescribed age limit. The Court then discharged the conditional order of mandamus as the order of the Lord Lieutenant was final. Having summarised the five cases, this writer fails to sec how one of the most important posts in the State from the point of view of security, that of Commissioner of the Garda, can be compared to the positions of County Surgeon, Corporation Treasurer, or Clerk of a Petty Sessions District — particularly when the majority judgments of the Supreme Court had emphasised that, if the correct procedure had been adopted, the dismissal of the Commissioner would have been valid. As regards the modern case law, Henchy J, emphasised that the decided cases on the point of Natural Justice were few, not of recent origin and are all of one opinion. Only three cases decided in the last half century were referred to — namely, Ridge i\ Baldwin 119641 A.C. 4 0 and Glover r. B.L.M. Ltd. I 19731 LR. 3 88 - which contained an obiter judicial observation that a person who holds office at will and pleasure is not entitled to Natural Justice, but neither case was concerned with a person holding such an officc. Malloch i\ Aberdeen Corporation I 19711 2 All. E.R. 1278 dealt with a schoolmaster who held officc at will or pleasure but, since the body with powers of removal (the British Education Board) was required by statute to give each of its members three weeks noticc of the consideration of the office holder's dismissal at a meeting, it was held that the requirement of Natural Juslicc was thereby imputed and applied. Kenny J. emphasised that, in Ridge r. Baldwin \ 19641

A.C. 40, Section 191 (4) of the Municipal Corporations Act. 1882, had there a safeguarding provision for the Chief Constable of Brighton, but that there was no (statutory) safeguarding provision of any kind for the holder of the office of Commissioner; this leads inevitably to the conclusion that Kenny J. considers that the combined principles of Natural Justice and of Article 40 (3) of the Constitution arc to be ignored. The majority decision of our Supreme Court in Garvcy's case is of primary importance, inasmuch as it has specifically related the principles of Natural Justice, as principles of fair procedure and fair play, to Article 40 (3) of the Constitution. By doing so, it has reinforced the dictum of Gavan Duffy J. in The State (Burke) v. Lennon I 19401 LR. at p. 154:- "Thc Constitution is the Charter of the Irish people. and I will not whittle it away". In a separate action on 19th December 1979 McWilliam J. awarded Mr. Garvey a sum for damages and for compensation for loss of office. It was established that Mr. Garvcy had been paid his full salary as Commissioner up to 7th May 1979. •

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