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Labour –
Employment - Condonation of
Labour Services - Quantification
of pension and end-of-service
benefits – Statute of
limitation. - Practice
direction of the Head of Civil
Service - Whether or not the
condonation extends to 2002, as
averred by the Plaintiff, or
whether it extends only to 1980
- Social Security - Chapter 30
(Cap 30) - Whether or not the
Plaintiff retired under Cap 30
upon reaching the age of sixty
(60) years - Whether or not
Plaintiff is entitled to pension
and end-of-service benefits
applicable to him from Ghana
Cocoa Board under Cap 30 - Rule
15.6 of the Supreme Court Rules
(CI 16):
HEADNOTES
The plaintiff
is a trained teacher who was
employed by the Government of
Ghana, through the Ghana
Education Service, in 1966.
After serving in the Ghana
Education Service till 1968, he
was granted study leave without
pay to study for an
undergraduate degree at the
University of Ghana, Legon.
Upon completion of his degree in
1971, he was employed at the
Ministry of Finance and Economic
Planning from June to August
1971, at the Ghana Water and
Sewerage Corporation from
September 1971 to June 1976, at
the National Investment Bank
from May 1976 to October 1978
and, finally, at the Ghana Cocoa
Marketing Board, from November
1978 to October 1979. The
plaintiff’s last employer in the
public service was the Ghana
Cocoa Marketing Board, which
terminated his employment
because of a reorganization that
the corporation had undertaken.
On attaining the retiring
age of sixty in 2002, the
plaintiff applied to the Ghana
Education Service (‘GES’) for
the
payment of his pension and
end-of-servive benefits.
Because the Ghana Cocoa
Marketing Board had not
redeployed him after his
termination, the plaintiff
applied in 2005 to the Head of
the Civil Service through the
Director-General of the GES for
condonation of break in
service. the Head of Civil
Service granted the condonation
of break in service through a
letter dated 12th
April 2005, thus making the
plaintiff’s service continuous
from 1966 to 10th
November 2002. The actual text
of the letter of condonation did
not, however, support this
assertion since that letter
written on behalf of the Head of
the Civll Service, The plaintiff
averred that he had written
several petitions on this
matter, including to the
President of the Republic. He
denied that, as falsely claimed
by the first defendant, he had
already claimed benefits from
his previous employers. He
further contended that even if
he had collected his provident
fund benefits from his previous
employers, he would still be
entitiled to his pension and
other end of service benefits.
The plaintiff claimed that on
the coming into force of the
Social
Security and National Insurance
Trust Law, he had opted in
writing to remain a pensionable
employee under the
Chapter
30 (Cap 30) scheme. It was
his case, therefore, that he was
entitled to retire from the
service with his full earned
awards. The high Court held that
he plaintiff was entitled to a
condonation in break of service
as set out in the letter of 12th
April 2005. He therefore held
that the Plaintiff is not
entitled to a pension calculated
from 1966 to 2002. He however
declared that the plaintiff is
entitled to a pension benefit
calculated from 1966 to 1980, as
granted by the letter from the
Head of the Civil Service. He
therefore ordered that the
plaintiff’s pension from 1966 to
1980 be calculated and paid to
him forthwith. Being
dissatisfied with the dismissal
of his appeal in the Court of
Appeal, he has further appealed
to this Court.
HELD
In my humble
view, this letter from the
Attorney-General does not assist
the appellant in securing the
reliefs claimed in his Statement
of Claim. It can in no way be
interpreted to support the
plaintiff/appellant/appellant’s
view of the effect of the letter
of condonation. I do not, thus,
consider any of the grounds 5 to
9 justify a reversal of the
judgment of the Court of Appeal.
I would, therefore,
dismiss this appeal as
unmeritorious.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules (CI 16)
High Court
(Civil Procedure) Rules 2004 (CI
47)
Pensions and
Social Security (Amendment) Act
1975 (SMCD 8),
Social
Security and National Insurance
Trust Law
Chapter 30
(Cap 30) of the laws of the Gold
Coast 1954
Government
Employees Pension Fund Law, 1996
(Proclamation No. 21 of 1996)
South Africa
CASES
REFERRED TO IN JUDGMENT
Larbi v. Cato
(1959) GLR 35.
Woledzi v.
Akufo-Addo (1982-83) 1 GLR 421
Korley v.
State Construction Corporation
(1982-83) 1 GLR 576
Vasant Heraji
Kadu v. The State of Maharashtra
& Ors, dated Friday, January 28,
2011
BOOKS
REFERRED TO IN JUDGMENT
Industrial
Law 3rd Edition by I.
T. Smith & J. C. Wood
DELIVERING
THE LEADING JUDGMENT
DR. S. K.
DATE-BAH JSC:
COUNSEL
APPELLANT
APPEARS IN PERSON.
CECIL
ADADEVOH [WITH HIM APPIAH OPARE]
FOR THE RESPONDENTS
ญญญญญญญญญญญญญญญญญญญญญญญญญญญ______________________________________________________________________
J U D G M E N
T.
______________________________________________________________________
DR. S. K.
DATE-BAH JSC:
The plaintiff
is a trained teacher who was
employed by the Government of
Ghana, through the Ghana
Education Service, an agency of
the Ministry of Education, in
1966. After serving in the
Ghana Education Service till
1968, he was granted study leave
without pay to study for an
undergraduate degree at the
University of Ghana, Legon.
Upon completion of his degree in
1971, he was employed at the
Ministry of Finance and Economic
Planning from June to August
1971, at the Ghana Water and
Sewerage Corporation from
September 1971 to June 1976, at
the National Investment Bank
from May 1976 to October 1978
and, finally, at the Ghana Cocoa
Marketing Board, from November
1978 to October 1979. The
plaintiff’s last employer in the
public service was the Ghana
Cocoa Marketing Board, which
terminated his employment
because of a reorganization that
the corporation had undertaken.
On attaining
the retiring age of sixty in
2002, the plaintiff applied to
the Ghana Education Service
(‘GES’)for the payment of his
pension and end-of-servive
benefits. Because the Ghana
Cocoa Marketing Board had not
redeployed him after his
termination, the plaintiff
applied in 2005 to the Head of
the Civil Service through the
Director-General of the GES for
condonation of break in
service. The plaintiff averred
in his Statement of Claim that
the Head of Civil Service
granted the condonation of break
in service through a letter
dated 12th April
2005, thus making the
plaintiff’s service continuous
from 1966 to 10th
November 2002. The actual text
of the letter of condonation did
not, however, support this
assertion since that letter
written by one W.K. Kemevor, on
behalf of the Head of the Civll
Service, and which was delivered
to the High Court in compliance
with Order 21 of the
High
Court (Civil Procedure) Rules
2004 (CI 47) relating to
discovery of documents stated
that (at p. 34 of the Record):
“I wish to
convey approval for the
condonation of the break, which
occurred in the service career
of Mr. Kwabena Aboagye from
1971 to 1980 when he worked with
the Ministry of Finance and
Economic Planning, the Ghana
Water and Sewerage Corporation,
the National Investment Bank and
finally the Ghana Cocoa
Marketing Board.
Consequently,
Mr. Kwabena Aboagye’s service
career is made continuous for
pension purposes from 1966 to
1980.”
The main
controversy in this case relates
to
whether the condonation extends
to 2002, as averred by the
Plaintiff, or whether it extends
only to 1980, as expressly
indicated in Mr. Kemevor’s
letter of 12th April,
2005.
The
plaintiff’s case, as set out in
his Statement of Claim, was
that: the condonation granted
him extended to 10th
November, 2002; that upon
receipt of the condonation
letter, he had written to the
Chief Treasury Officer of the
Controller and
Accountant-General’s Department
to process his retirement
benefits for payment; that the
First Defendant had written to
the plaintiff’s previous
employers and had been given
written responses about the
current position, equivalent
salary scales of the plaintiff
for computation of the
plaintiff’s pension and
end-of-service benefits; that
the advice of the
Attorney-General, when sought by
the First Defendant, was that
the plaintiff’s pension was to
be paid with any advantageous
increases due to the plaintiff,
but the first defendant, had
failed to pay the plaintiff.
The plaintiff further contended
that when he lost his employment
with the Government of Ghana as
a result of the reorganization
of his particular office, he was
not redeployed, even though he
was available for redeployment.
The
plaintiff averred that he had
written several petitions on
this matter, including to the
President of the Republic. He
denied that, as falsely claimed
by the first defendant, he had
already claimed benefits from
his previous employers. He
further contended that even if
he had collected his provident
fund benefits from his previous
employers, he would still be
entitiled to his pension and
other end of service benefits.
The plaintiff claimed that on
the coming into force of the
Social Security and National
Insurance Trust Law, he had
opted in writing to remain a
pensionable employee under the
Chapter 30 (Cap 30) scheme. It
was his case, therefore, that he
was entitled to retire from the
service with his full earned
awards.
The reliefs
that he sought were specifically
(as stated in his Statement of
Claim):
a.
“A declaration
that
Plaintiff retired under Cap 30
upon reaching the age of sixty
(60) years
b.
A declaration that
Plaintiff
is entitled to pension and
end-of-service benefits
applicable to him from Ghana
Cocoa Board under Cap 30
c.
An order that the Plaintiff’s
period of pension and
end-of-service benefits be
calculated from 1966 to 10th
November 2002 when he turned 60
years and would have thus
retired from the service.
d.
An order that Plaintiff’s
pension and end-of-service
benefits be as calculated above
be paid to him by the Defendants
forthwith.
e.
Interest at the statutory rate
on monies due to the Plaintiff
from the Defendants from 10th
November 2002 to date of final
payment.
f.
General Damages.”
These reliefs
were an expansion of the reliefs
endorsed on the Writ of Summons
which were as follows:
a.
“A declaration that Plaintiff is
entitled to pension and
end-of-service benefits
applicable to him from Ghana
Cocoa Board and retired under
Cap 30 upon reaching the age of
sixty (60) years
b.
A declaration that the Plaintiff
enjoys a condonation of his
service from 1966 to 1982
c.
An order that the Plaintiff’s
period of pension be calculated
from 1966 to 10th
November 2002 when he turned 60
years and would have thus
retired from the service
d.
An order that Plaintiff’s
pension, calculated under
paragraph c above be paid to him
by the Defendants forthwith.”
Presumably,
the Plaintiff intended that his
Statement of Claim should be
taken as having amended the
reliefs as endorsed on his Writ
of Summons.
The
defendants in their Statement of
Defence dated 4th
February 2008 denied that the
plaintiff was entitled to any of
the reliefs endorsed on his writ
of summons. More specifically,
they averred that when the
plaintiff’s appointment was
terminated he had failed to seek
redress then and so no action
could arise at the time of the
statement of defence (which was
after 29 years) on account of
the
statute of limitation. They
further averred that the
plaintiff had failed to join the
Civil Service after his
termination at the Ghana Cocoa
Board. Though they admitted Mr.
Kemevor’s letter of 12th
April 2005, they denied that the
letter made the plaintiff’s
service continuous from 1966 to
2002.
At the close
of pleadings, counsel for the
plaintiff applied to have the
suit disposed of by legal
argument. Accordingly, no oral
evidence was adduced. The trial
judge, Asante J., indicates in
his judgment, delivered on 22nd
December, 2008, that the
plaintiff’s counsel stated that,
with coming into force of the
Pensions
and Social Security (Amendment)
Act 1975 (SMCD 8), the
plaintiff, who was then a
pensionable officer, exercised
the option to remain under Cap
30. Counsel argued that it was
this option which informed the
plaintiff’s decision to wait
until he reached the age of 60
years before making a claim for
his pension. The learned trial
judge indicated that counsel
could not produce any proof of
the exercise of this option,
although he informed the court
that he would furnish it with
such proof.
The learned
trial judge concluded that the
letter of condonation dated 12th
April 2005 did not support the
claim made in paragraph 10 of
the plaintiff’s Statement of
Claim that the letter made the
plaintiff’s service continuous
from 1966 to November 2002. The
learned trial judge stated (at
p.67 of the Record):
“My
understanding of the letter is
that from 1971 to 1980, the
plaintiff worked outside the
Ghana Education Service ie
outside the Civil Service and
since all the establishments
with which he worked are all
government related, the head of
the Civil Service condoned the
break in service and approved
that he be paid his pension from
1966 when he was a Teacher up to
his last post at the Cocoa
Marketing Board in 1980.
Nowhere in
this letter has it been stated
that the period of 23 years when
the plaintiff stayed at home
after his termination because of
the reorganization should be
condoned and pension paid to him
for that period as falsely
claimed in paragraph 10 of the
statement of claim.”
The learned
trial judge then relied on a
practice
direction of the Head of Civil
Service, according to which
those who held a pensionable
grade as of 1st
January 1972 and whose office
had been abrogated as a result
of re-organisation could apply
for condonation.
In the
circumstances, he found that the
plaintiff was entitled to a
condonation in break of service
as set out in the letter of 12th
April 2005. He therefore held
that the Plaintiff is not
entitled to a pension calculated
from 1966 to 2002. He however
declared that the plaintiff is
entitled to a pension benefit
calculated from 1966 to 1980, as
granted by the letter from the
Head of the Civil Service. He
therefore ordered that the
plaintiff’s pension from 1966 to
1980 be calculated and paid to
him forthwith.
The plaintiff
then applied for a review of
this judgment. In his affidavit
in support of his application
for review, the plaintiff
contended that he did not break
service from 1966 to 1980 since
all his employers in that period
were within the Public Service.
He insisted that the break in
service occurred in 1980 when in
January the Cocoa Marketing
Board stopped paying him because
of the termination of his
appointment on the ground of
re-organisation. He contended
that the condonation he applied
for was not to aggregate his
years of service outside the
civil service, as stated in the
judgment of the leaned trial
judge. The affidavit further
stated:
7.
“That condonation of break in
service as explained in
paragraph (1) of the practice
direction dated 31/01/2008 and
titled “Condonation of Break in
Service” when granted treats the
break in service in 1980 as if
it never occurred thus making
Plaintiff service continuous
from 1966 up (sic) November 2002
when Plaintiff attained the
compuisory retiring age of
Sixty.
8.
That the Director of Human
Resource and Manpower
Department’s letter dated
12/04/05 titled “TRANSFER OF
SERVICE FROM THE GHANA EDUCATION
SERVICE – MR. KWABENA ABOAGYE
REGD. NO 1482/05” which made
Plaintiff’s service from 1966 to
1980 continuous for pension
purposes was an obvious error in
that there was no break in
service from 1966 to 1980.
9.
That it was when the 1st
Defendant’s attention was drawn
to the obvious error in the
Director of HRMD’s letter dated
12/04/05 that the 1st
Defendant sought the
Attorney-General’s opinion which
brought about Justice VCRAC
Crabbe’s advice letter dated
2/11/05.
10.
That as in paragraph 4(11) of
the practice direction all what
the Plaintiff was required to
support his application for
condonation of break in service
was that his break in service
was honourably done and in the
case of the Plaintiff his
appointment was terminated due
to re-organisation without being
re-deployed though he was
available.
11.
That the Plaintiff never sought
as part of his reliefs as
endorsed on the Writ of Summons
or stated in the Statement of
Claim a declaration that
Plaintiff enjoys a condonation
of his service from 1966 to 1980
as captured in page 2 of the
judgment in that there was no
break in service.”
The
defendants opposed the
application for review on the
ground that the plaintiff’s
affidavit in support did not
disclose anything new beyond
what was argued before the
delivery of judgment.
Counsel for
the plaintiff in arguing the
application for review indicated
that the basis for the
plaintiff’s application was that
the court had based its judgment
on an erroneous letter, namely
the letter of condonation. (See
p. 103 of the Record). He made
the point that the condonation
could not have been for a period
during which the plaintiff was
working in the public sector.
The condonation letter had
therefore misled the court into
an error. He therefore prayed
the court to correct its
erroneous finding by extending
the period of condonation to
2002 when the plaintiff attained
the age of sixty years. Counsel
for the defendants in response
argued that there was no error
in the letter of condonation and
that counsel for the plaintiff
had not satisfied the
preconditions for the grant of a
review by the High Court. He
argued that the proper forum for
the plaintiff’s grievance would
be the Court of Appeal.
His Lordship
Asante J., in his ruling,
delivered on 19th
March 2009, dismissed the
application for review, stating
that his grant of condonation in
his judgment was based on the
letter of condonation written on
behalf of the Head of the Civil
Service which had expressly
granted a condonation from 1966
to 1980. He rejected the
plaintiff’s submission that the
Head of Civil Service made a
mistake in indicating that the
condonation was from 1966 to
1980. He indicated if there was
any error in that letter, it was
the responsibility of the Head
of the Civil Service to correct
it. Such correction could not
be effected by way of a review
of the High Court’s original
judgment.
The plaintiff
appealed to the Court of Appeal
against both the judgment and
the ruling of Asante J.
Being
dissatisfied with the dismissal
of his appeal in the Court of
Appeal, he has further appealed
to this Court. Although the
plaintiff had been represented
by counsel in the courts below,
in this court he appeared in
person and represented himself.
The plaintiff’s grounds of
appeal were:
1.
“The Court of Appeal
misunderstood the term
“Condonation of break in
service” as provided in
Regulation 15(2)b by
misconstruing the term “Condone”
to mean “Conjoin”, thus
delivering a judgment that
cannot be supported by the legal
arguments made at the trial High
Court as found in pages 76-88 of
the appeal record.
2.
The Court of Appeal erred by
failure to correct the mistake
in the Condonation letter from
the Head of Civil Service found
at page 34 of the appeal record
as an issue put before the Court
with an Exhibit to support such
needed correction at pages 38-40
of the appeal record.
3.
The Court of Appeal erred in the
face of the fact in the appeal
record in ruling that the
Appellant had breaks in his
service career when at page 33
of the appeal record Appellant
provided clearly that
Appellant’s service career was
broken only once in 1979/80 as a
result of termination of his
appointment by reason of
re-organisation.
4.
The Court of Appeal erred in
stating that the Appellant asked
for condonation of his break in
service from 1966 to 2002, when
he clearly asked for condonation
of the break in his service
career from 1980 when his
appointment was terminated by
reason of re-organisation to the
year 2002 when he attained the
compulsory retiring age of sixty
for the purpose of calculating
the Appellant’s pension and
end-of-service benefits.
5.
The Court of Appeal erred by
incorrectly interpreting the
Attorney-General’s letter in a
vacuum, that is, without
reference to the contents of the
letter of the Controller, dated
29th September 2006
to which the Attorney-General’s
letter was directly addressing.
6.
The Court of Appeal erred in
taking the Appellant’s demand
for pension payment to be, as
if, it is payment of salaries
over the condoned period and so
made Appellant seem to be
demanding payment of salaries
over the period he was not
working for the Civil or Public
service.
7.
The Court of Appeal erred in not
awarding interest on the
Appellant’s pension payment to
restore eroded value due to the
delay in payment by the
Controller & Accountant-General
pension which compelled the
Appellant to institute the
instant action.
8.
The Court of Appeal erred in
declaring that the Appellant is
not entitled to damages and not
ordering the Appellant to prove
same when the Court found that
the Appellant was entitled to
pension and condonation but had
not been paid since November,
2002 when Appellant attained the
age of sixty.
9.
The Court of Appeal erred in not
awarding costs in favour of the
Appellant, in that, it is not
required of a public officer who
has satisfied the necessary and
sufficient conditions for
pension payment to go to Court
before being paid.”
The
plaintiff/appellant/appellant
argued grounds 1,2,3 and 4
together. He contended that
between 1966 and 1980 he was in
the public service without any
break and therefore was
qualified on his own continuous
service for pension under Cap
30. He did not need any
condonation to enjoy a pension
in relation to those 14 years.
The condonation of break in
service granted by the Head of
the Civil Service had to be
construed rather as relating to
the break in his service that
occurred from 1980 till 2002
when he reached the compulsory
retirement age of 60.
I am afraid I
have a logical difficulty with
this argument. Break in service
connotes that there are at least
two periods of service with a
gap in between them. However,
in 2002, the plaintiff was
manifestly not in the employment
of the civil nor public
service. I cannot, therefore,
understand how it can be
meaningfully argued that there
was a break in service between
1980 and 2002. The plaintiff’s
employment in the public sector
terminated at the end of 1979
and no amount of clever
argumentation can mask that
salient fact.
I sympathise
with the view of Asante J. in
the trial court, expressed in
his ruling on the review
application, when he indicated
that if there was an error in
the letter of condonation the
responsibility lay with the
issuer of the letter to correct
it and not for the courts to
rectify the alleged error. As
far as I am concerned, this is a
simple matter that has been
unnecessarily dragged through
the court system. The letter of
condonation by its express and
unambiguous terms relates to the
period between 1966 and 1980.
If this was erroneous what
needed to be done was for the
issuer of it to withdraw it and
substitute another letter for
it. This has not been done.
This issue of fact for me
concludes this issue. There
simply is no letter of
condonation covering the period
1980 to 2002 on the record.
Accordingly, I am unable to hold
that the period between 1980 and
2002 which was manifestly spent
by the plaintiff outside the
public service has been
condoned. Indeed, if the Head
of Civil Service were to issue a
letter of condonation for that
period, an issue would arise as
to whether he has the authority
to do so, in the light of my
understanding of break of
service outlined above.
However, that issue does not
arise on the actual facts of
this case. I would accordingly
dismiss grounds 1 to 4 as
unmeritorious.
The
plaintiff/appellant/appellant
argued the rest of his grounds
(5 to 9) together. In arguing
these grounds, the appellant
purported to introduce fresh
evidence through his Statement
of Case by annexing 7
attachments “in order to be able
to demonstrate to the Supreme
Court how and why the Court of
Appeal erred in interpreting the
letter of the Attorney-General,
dated 29th November,
2005, without having the
Controller’s letter dated 29th
September, 2005 and reading the
contents of the letter.” This
introduction of fresh evidence
through the Statement of Case is
impermissible, by the Supreme
Court Rules, and it is therefore
disregarded. According to
Rule 15.6
of the Supreme Court Rules (CI
16):
“6) The
statement of case of each party
to the appeal-
(a) shall set
out the full case and arguments
to be advanced by the party
including all relevant
authorities and references to
the decided cases and the
statute law upon which the party
intends to rely; and
(b) in the
case of a respondent may include
a contention that the decision
of the court below be varied.”
Accordingly,
also disregarded are all
unproven allegations of fact
which the appellant introduced
into his Statement of Case. The
Statement of Case may only rely
on facts established by evidence
already on record.
The letter
from the Attorney-General that
is referred to is in fact dated
2nd November 2005 and
is one of the documents filed by
the plaintiff in the court
below. Its text is as follows:
“PENSION PAYMENT –
MR. KWABENA ABOAGYE
May I refer to your letter dated
the 29th September,
2005.
I
am directed by the
Attorney-General to inform you
that Mr. Kwabena Aboagye’s
entitlement to pension depends
on the law applicable to him at
the time of his retirement from
the Public Services. Once that
right had accrued, subsequent
changes in the law would not
affect the accrued right, which
has now become, as it were, a
vested interest, unless the law
specifically applies to take
away the accrued right. In the
circumstances of this case, Mr
Kwabena Aboagye should be paid.
a)
the pension to which he is
entitled as a public officer at
the time of his retirement from
the Public Services, and
b)
any advantageous increases in
the quantum of the pension
payable.
VCRAC CRABBE
COMMISSIONER
STATUTE LAW REVISION
MR. CHRISTIAN
SOTTIE
CONTROLLER
AND ACCOUNTANT-GENERAL
P O BOX M79
ACCRA”
In my humble
view, this letter from the
Attorney-General does not assist
the appellant in securing the
reliefs claimed in his Statement
of Claim. It can in no way be
interpreted to support the
plaintiff/appellant/appellant’s
view of the effect of the letter
of condonation. I do not, thus,
consider any of the grounds 5 to
9 justify a reversal of the
judgment of the Court of Appeal.
I would,
therefore, dismiss this appeal
as unmeritorious.
(SGD) DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
W. A.
ATUGUBA, J.S.C:
This case
hinging on
condonation of Labour Services
has reached this court as
res integra. I therefore wish to
venture some views on it.
As the facts
have been masterly stated by my
able brother Dr. Date-Bah
J.S.C., I will not repeat them
except where necessary.
As I
understand the appellant’s
stance it is that break in
service needing condonation for
the purposes of pension rights
does not arise at all to a
series of services or
employments engaged in so long
as they are in the Public
Service. He contends that break
in service relates to premature
disruption of an employee’s
service career when he has not
reached the retiring age of 60
years, occasioned by an event
such as loss of job due to
redundancy or reorganisation of
the employer’s business. It is
his further contention that in
such circumstances the gap
between the premature loss of
job and the date of retirement
can be bridged by the grace of
condonation by the Head of Civil
Service, thus enabling the
employee to earn his full
retirement benefits from the
date he first worked in the
Public Service up to the date he
attained the age of 60 years.
No judicial
authority has been cited by any
of the parties, no doubt because
as I pointed out earlier it is
res integra in the Ghanaian
judiciary. The appellant’s range
of permissible condonation is
rather startling. There seems to
be little wonder that his grant
of condonation ex facie exhibit
M4 is restricted to the period
1966 to 1980 when the appellant
rendered various fractured
services in the Civil and Public
Services of Ghana. He contends
that the said stated period of
condonation is a clear error
based on his contentions as to
the nature and ambit of
condonation earlier stated
supra. Were his contentions as
to error plausible I should be
disposed to read the letter
granting him the condonation ut
res magis valeat quam pereat, it
being trite law that the rules
for the construction of statutes
are very much the same for
documents. Such a course has
been pursued often. See
Larbi v.
Cato (1959) GLR 35.
However in
Woledzi
v. Akufo-Addo (1982-83) 1 GLR
421 at 439, Cecilia
Koranteng-Addow J lamented the
situation of a former supervisor
of mails at the Posts and
Telecommunication Corporation
thus:
“The
plaintiff is now unemployed. He
received no retiring benefits,
after fifteen years of service.
He said he received only ข150 on
his retirement because he had
not reached the retiring age. He
said his contemporaries who are
still at the job are now senior
inspectors receiving annual
salaries of ข4,360. This is a
new scale which came into effect
in 1970. He was 41 years when he
was compulsorily retired. He is
married with seven children, but
he is completely incapacitated
by this accident. In July 1967,
when a medical report was issued
on him, Dr. K. G. Korsah found
him to be 70 per cent
incapacitated. In 1979, when he
conducted a further examination
to assess his improvement, he
found that his condition had
retrogressed, and he assessed
incapacity at 100 per cent.
There is total blindness in the
right eye, with pains in it…”
(e.s)
Continuing at 440 her Ladyship
said:
“The
plaintiff is deformed; the
squint and the twisted mouth
have deformed him. He is a man
who lost his self-confidence due
to his present appearance. In
his present condition there is
little he can enjoy; a man who
is so affected and afflicted
with pain can hardly be said to
enjoy full amenities of life. He
has also lost his pension
rights.
Lastly, his
inability to make a living to
support himself and family –he
is 54 years old; he was only 42
at the time of the accident.
Considering the heights he would
have attained in his job if he
had not been disabled by this
accident, he should be
compensated for that loss. His
damages should take seriously
into account his pension rights
which he lost and his total
incapacity. …”
Again in
Korley v. State Construction
Corporation (1982-83) 1 GLR 576
at 584 Cecilia
Koranteng-Addow J lamenting the
predicament of a 50 years old
man who worked with the State
Housing Corporation as a
carpenter from 1958 to 1973,
said:
“ … He has
suffered pain and loss of
amenities. His pain has
persisted from the time of the
accident and it is still
continuing, he has lost
amenities of life. In his
present condition, the plaintiff
cannot do the things he enjoyed
doing before the accident. He
cannot stand on his feet, and he
walks with a lot of strain. The
plaintiff undoubtedly retired
before reaching the retiring
age, so he must have lost some
earnings.”
In these two
grim cases the parties were
represented by experienced
counsel and it seems rather
awkward that there is no hint in
the computation of damages for
prospective loss, of the kind of
condonation that the appellant
claims so confidently.
I have also
looked at the renowned work,
Industrial Law 3rd
Edition by I. T. Smith & J. C.
Wood but have found nothing
that supports the appellant’s
contention. The discussion that
comes closest to this matter is
at page 166, 173 to 177 and 317
to 319, dealing with continuity
of service and pension rights.
It is clear that the English
notion of continuity of service
is similar to Ghana’s scheme of
condonation but nothing therein
comes near the appellant’s claim
in this case.
The instance
of condonation of service which
is very similar to the matter at
hand I have come across in
respect of South Africa is one
effected statutorily along the
lines of condonation of service
granted the appellant herein. It
is as follows:
ACT
To give
effect to a petition granted by
the National Assembly condoning
the interrupted service of a
certain individual for the
calculation of pension benefits
payable to his spouse under the
Government Employees Pension
Fund Law, 1996 (Proclamation No.
21 of 1996); and to provide
for matters connected therewith.
BE IT ENACTED
by the Parliament of the
Republic of
South
Africa, as follows: -
Interpretation
1.
In this Act,
unless the context indicates
otherwise, a word or expression
to which a meaning had been
assigned in the Government
Employees Pension Fund Law, 1996
(Proclamation No. 21 of 1996,
has the meaning assigned to it
in that Act
Condonation of Interrupted
Service
2.
(1) Despite
anything to the contrary in any
other law, the service of
Advocate Abraham Gerhardus
Kellerman, as rendered to the
former Department of Justice for
the period 1 January 1980 until
31 January 1991 and for the
period 1 September 1991 until 6
September 2000, must be regarded
as continuous service of 20
years for the purposes of
calculating the pension benefits
due to his surviving spouse,
Chloe Jemima Kellerman, under
the Government Employees Pension
Fund Law, 1996, Proclamation No.
21 of 1996), and the Rules
issued under that Law.
(2) The
benefits to which his spouse is
entitled to in terms of
subsection (1) is payable from
the date of his death on 6
September 2000, and is payable
by the Government Employees
Pension Fund.
(3) The
benefits payable under
subsection (2) must be paid to
his spouse within 60 days of the
commencement of this Act.
Compensation of Fund
3.
(1)(a) The
employer must pay a single
one-off amount calculated by an
actuary appointed by the Fund as
compensation in full for the
liability incurred by the Fund
in terms of section 2.
(b) In
calculating the liability
contemplated in subsection (1),
the actuary must take into
account –
(i) any
contributions paid to the Fund
or previous fund, by the
employer or Advocate Abraham
Gerhardus Kellerman, not paid to
Advocate Abraham Gerhardus
Kellerman on termination of his
services on 31 January 1991; and
(ii) interest
on the contributions
contemplated in subparagraph
(i).
(2) The
compensation contemplated in
subsection (1) is a
direct
charge against the National
Revenue Fund.
Short Title
4.
This Act is
called the Government Employees
Pension Fund (Condonation of
Interrupted Service) Act, 2008.”
(e.s.)
Finally I
refer to the Indian case decided
by the High Court of Judicature
at Bombay, Nagpur Bench, Nagpur,
intituled
Vasant Heraji Kadu v. The State
of Maharashtra & Ors, dated
Friday, January 28, 2011.
The facts and decision thereof
are as follows:
“The
petitioner having acquired the
qualification of B. Sc. B. T.
was appointed as Assistant
Teacher in Mahatma Ghandi
Vidyalay, Armori on 18.10.1956.
He was confirmed there and
thereafter was promoted as Head
Master in the same school on
1.4.1958. However on 1.5.1961
the services of the petitioner
were terminated by paying three
month’s salary, he being
permanent employee. This was the
first break in his service.
Thereafter on 1.6.1961 he was
appointed as Head Master in
Katol High School, Katol. On
6.4.1969 he resigned from the
said post. His resignation was
accepted on 1.10.1969 and was
relieved on 6.10.1969. This was
the second break in his service.
Thereafter he was appointed as
Assistant Head Master in
temporary post in Tidke Viyalay,
Nagpur on 25.6.1972. This was
the third break in his service.
Thereafter he was appointed as
Head Master in Pragatik Vidyalay
on 3.7.1972. His services were
terminated in 30.4.1974. This
was the fourth and the last
break in his service. Lastly he
was appointed as Assistant
Teacher in Yuganter Mahila
Vidyalay, Nagpur on 14.8.1976
and continued there till he
retired on attaining the age of
supernnuation (i.e. 60 years) on
30.9.1968. Thus, he rendered
total service of 32 years
including the break of about 4
years 3 months and 15 days. All
these schools wherein the
petitioner served were aided and
recognized and the petitioner
served there on full time basis
and was permanent employee.
3. Even
before his retirement, the
petitioner made a representation
to the Education Officer, Zilla
Parishad, Nagpur on 30.11.1987
for condoning the said break in
his service period. The case of
petitioner was also recommended
by the Education Officer as well
as Deputy Director of Education
to the Government. However, by
communication dated nil July
1992 the Education Department
informed the petitioner its
regret that the break in service
during the period from 1.5.1974
to 13.8.1976 cannot be condoned
as per the prevailing rules.
Thereafter the petitioner made
several representations to the
secretary, Education Department,
Bombay. However, the
communications dated 4.1.1998
the petitioner was informed that
the break in his service cannot
be condoned. The petitioner has
challenged those communications.
4. According
to the petitioner the breaks in
service of Shri B. L. Deshmukh
and Shri Jagdish Khebudkar were
condoned by the state. However,
the petitioner was discriminated
and has been denied the benefit
of his long service while giving
pensionary benefits to him.
5.
Respondents No 1 and 3 as well
as respondent No 4 filed
separate returns. According to
them there has been no
discrimination as alleged by the
petitioner because the
petitioner’s case cannot be
equated with that of Shri B.L.
Deshmukh and Shri Jagdish
Khebudkar. The breaks in
services in those two teachers
were condoned because under
normal rules they were no
entitled to any pension and in
order to allow them to draw at
least minimum pension, the break
in service was condoned as
special cases. The policy of the
state Government is not to
condone break in service in
order to enhance pension. Thus
the petition is not entitled to
the relief sought.
6.We have
heard Shri A D Mohagaonkar,
Advocate for the petioner and
Shri Ahirkar, AGP for the
respondents. Shri Mohagaonkar
invited our attention to rule
70.1 of the secondary school
code under the caption
“Pension/Provident Fund”. It
provides that every employee on
a full time basis in aided and
recognized school who was
appointed before 1st
April 1966 and has exercised in
writing his opinion for a
pension scheme, shall be
eligible to get pension as per
rules prescribed by the
Government. Shri Mohagaonkar
further invited our attention to
Annexture 34 of Secondary School
Code which provides for “Pension
Scheme for employees in the
Non-Government Secondary
Schools”. Clause (1) of the said
Scheme provides that:
“ Government
directs that the pension
gratuity and other retirement
benefits admissible to the
Maharashtra State Government
servants under the Revised
Pension Rules, 1950 as amended
from time to time, should be
made applicable to full time
teaching staff in recognized and
aided Non-Government Secondary
Schools in the state who retires
on or after 1st April
1966.”
Clause 7
of the Scheme provides that:
“In computing
the length of qualifying service
for pension under this scheme,
all previous circumstances
beyond the control of the
teacher. If the services of a
teacher have been terminated on
disciplinary grounds after
following the prescribed
procedure, such break in service
cannot be condoned and the
services rendered by the teacher
in the school from which his
services are so terminated on
disciplinary grounds will not
account for pension.”
8. Shri
Mohagaonkar also invited our
attention to Appendix A
which is an
Accompaniment of Government
Resolution , Education Youth
Services Department No PEN
1076.81126 (1491) XXII dated
12.11.1976 which provides that
breaks after 30.9.1976 in
respect of teachers should not
be condoned. The cut-off date
prescribed by the state for
condoning the break in service
is wholly irrational and it
results in discrimination
between the employees and it has
no nexus with the object sought
to be achieved by the pension
scheme. Perhaps that is why by
Circular No:
PEN-1088/120973/(582)/Sec – Edu
dated 10.5.1989 of the Secretary
of Department of Education was
empowered to condone the breaks
in service of teachers even
after 30.9.1974.
9.Shri
Mohagaonkar pointed out that in
case of the petitioner all those
contentions are fulfilled and
hence there was no difficulty in
condoning the break in his
services for the period from
30.4.1974 to 14.8.1976 which is
of two years 3 months and 13
days.
10.The
reasons put forth by respondents
for not condoning the break in
service of the petitioner are
(1) that the policy of the state
is not to condone the break in
service in order to enhance the
pension and (ii) that the cases
of Shri B.L. Deshmukh and Shri
Jagdish Khebudkar cannot be
equated with that of the
petitioner, because those two
employees would not have been
entitled to any pension unless
the break in their services was
condoned and hence the same was
condoned as special cases. We
are unable to find any logic in
these reasons. It is the policy
of the State to give pension to
every employee on a full- time
basis in aided and recognized
schools appointed before 1st
April, 1966, there is no
question of any policy of the
State not to condone break in
service in order to enhance
pension.
11.So far as
equating the case of the
petitioner with that of Shri B L
Deshmukh and Shri Jagdish
Khebudkar it is true that they
cannot be equated because in the
absence of condonation or break
in their services, those two
employees would not have been
entitled to draw any pension.
However, this does not mean that
if because of condonation of
break in service of the
petitioner he is benefited by
getting more pension the break
in service should not be
condoned. It may not be
forgotten that the petitioner
rendered 32 years of total
service including break of 4
years, 3 months and 15 days. As
the last break in service of the
petitioner is not condoned, his
pension has been calculated on
the basis of his service of
about 12 years only whereas if
the last break in the service of
the petitioner is condoned he
would get benefits of earlier 16
years of service. Since the last
break in the service of the
petitioner for 2 years, 3 months
and 13 days is not condoned he
gets pensionable service only
from 14.8.1996 to 30.9.1988 that
is for about 12 years whereas if
the last break in the service of
the petitioner is condoned he
would get benefits of earlier 20
years of service for calculating
pension and pensionable
benefits. In our view the State
was not justified in refusing to
condone the last break in
service of the petitioner
depriving him all the benefits
of the long service. Such a
decision is against public
policy. We are surprised to see
that the last break in the
service of the petitioner was
not condoned by the State
despite the authorities below
having recommended the case of
the petitioner for condonation
for break in service.
12. In view
of the above reasons, we find
that the communication by the
State dated July, 1992 so also
the communication dated 4.1.
1998 and 2.3.1998 are liable to
be quashed and set aside.” (e.s.)
Quite clearly the South African
and Indian legal position is
that breaks of service (within
the Public Service) require
condonation and therefore it
will be absurd to think that a
person who suffered redundancy
can also get the same
condonation even though between
his last employment and his
retiring age he did not work in
any employment at all.
From all the foregoing, I am
convinced that our law on
condonation is in pari materia
with that of England, South
Africa and India and that as
stoutly stated by my brother Dr.
Date-Bah JSC of legendary
ability, condonation relates to
breaks between two or more
employments and not otherwise
and that the period of
condonation of service granted
the appellant is 1966 to 1980
and not 1966 to 2002. Therefore
there is no error in the
expression of the period of
condonation of service intended
to be granted and was granted to
the appellant.
I
would therefore also dismiss the
appeal.
(SGD) W. A.
ATUGUBA
ACTING CHIEF JUSTICE
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COUR
(SGD)
P. BAFFOE – BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO-BAMFO (MRS.)
JUSTICE OF THE SUPREME COURT
COUNSEL;
APPELLANT
APPEARS IN PERSON.
CECIL
ADADEVOH [WITH HIM APPIAH OPARE]
FOR THE RESPONDENTS.
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