TSUI MA CHING v. AN INVESTIGATION COMMITTEE APPOINTED PURSUANT TO SECTION 6 OF THE PUBLIC SERVICE (DISCIPLINE) REGULATION AND SECTION 10 OF THE PUBLIC SERVICE (ADMINISTRATION) ORDER 1997 AND ANOTHER

HCAL20/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 20 OF 2004

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J U D G M E N T

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1.  In this application for judicial review, the applicant seeks orders of certiorari to quash the following decisions:

(1)	The decision of the investigation committee (“the Committee”) dated 30 August 2003 finding the applicant guilty of misconduct of absent from duty without an application for leave or permission; and
(2)	The decision of the Permanent Secretary for Housing, Planning & Lands (Housing) (“the Permanent Secretary”) dated 6 November 2003 confirming the decision of the Committee and ordering the compulsory retirement of the applicant with deferred benefit and forfeiture of all earned leave.

Background

2.  The applicant was formerly a Workmen I of the Housing Department (“the Department”).  In 1996, he worked with the Squatter Control (Shatin) Unit (“SCST”) and belonged to the “YA2” team.  SCST was responsible for the squatter control of the Shatin District, and YA2 was responsible for the southern parts of Shatin, near the Shatin Railway Station.  The duties of the applicant were to patrol squatter areas, detect the erection of and demolish unauthorized structures and other duties assigned by his superior.

3.  YA2 team comprised a Housing Officer, two Artisans and two Workmen I.  The Housing Officer was surnamed Wong (“Wong”).  Apart from the applicant, the other Workmen I was surnamed Lam (“Lam”).  A vehicle was used to convey the members of SCST to their places of work.  The driver of the vehicle was surnamed Yuen (“Yuen”).

4.  In October 1996, the Independent Commission Against Corruption (”ICAC”) carried out an investigation into the staff of SCST.  The applicant, Wong, Lam and Yuen were interviewed by ICAC officers under caution.  Yuen subsequently became a witness for the ICAC.

5.  No prosecution was brought as a result of the investigation.  In August 1998, the ICAC Operations Review Committee referred the case to the Department for investigation of possible disciplinary offences.  As a result, the Department conducted a disciplinary investigation on some officers of SCST, including the applicant.

6.  By a letter dated 8 March 1999, the Director of the Department asked the applicant for explanations on, inter alia, being late for work and absence from duty.  The applicant gave his explanations on 18 March 1999.

7.  By another letter dated 19 January 2000, the Director of the Department asked the applicant to give explanations for the absence from duty on 27 August and 10 October 1996, and whether permission from his superior, Wong, had been obtained.  By a letter dated 24 January 2000, the applicant denied being absent from work on 27 August 1996, and explained that he had prior permission from Wong for the absence on 10 October 1996.

8.  By a letter dated 14 April 2003, the Department invited the applicant to submit written representation as to why disciplinary action should not be taken against him on the following charges:

(1)	That he was absent from duty without leave or permission while on duty about twice per month from January to September 1996;
(2)	That he was absent from duty without leave or permission from 10:00a.m. to 10:20a.m. on 10 October 1996.

9.  The applicant made his written representation on 28 April 2003.

10.  On 9 May 2003, the Assistant Director (Allocation) of the Department ordered an inquiry under section 10 of the Public Service (Administration) Order as read with section 15 of the Public Service (Disciplinary) Regulation to inquire into the misconduct alleged against the applicant.  The Committee was also appointed under section 6 of the Public Service (Disciplinary) Regulation to conduct the inquiry.

11.  The Committee conducted the inquiry on 16 June, 5 and 9 July 2003.  The applicant denied both charges.  He was assisted by a former Artisan of the Department.  Six witnesses including Lam were called.  Wong and Yuen did not testify at the inquiry.  Yuen had retired from the civil service and did not turn up at the hearing despite request.  As for Wong, despite requests to attend the hearing, he took time off and vacation leave on the hearing dates. The applicant also did not give evidence.  The Committee produced its report on 30 August 2003.  The Committee found both charges of misconduct against the applicant established.  Copies of the report were made available to the Department and also the applicant.

12.  By a letter dated 11 September 2003, the Secretariat on Civil Service Discipline informed the applicant that the Committee had found him guilty of the charges of misconduct.  The applicant was further invited to make submission on punishment.  On 23 September 2003, the applicant made his submission.

13.  On 24 October 2003, the case file containing, inter alia, the report of the Committee and a minute (M7) incorporating the recommendations of the Secretariat on Civil Service Discipline, were sent to the Permanent Secretary for consideration.

14.  On 30 October 2003, the Permanent Secretary in exercise of his power under delegated authority confirmed the decision of the Committee and awarded to the applicant a punishment of compulsory retirement with deferred benefits and forfeiture of all earned leave.  The result was communicated to the applicant by way of a letter dated 6 November 2003 from the Housing Department.

15.  On 4 February 2004, the applicant commenced these proceedings.  Leave to apply for judicial review was granted by Hartmann J on 10 February 2004.  On 18 February 2004, the applicant filed the Notice of Motion.

The grounds for the application

16.  The applicant raised four grounds in the Form 86A, two of which are directed at the decision of the Committee and the remaining two are directed at the decision of the Permanent Secretary.  They are:

(1)	The decision of the Committee finding that the charges of misconduct were proved was Wednesbury unreasonable in that Wong had given oral permission for the absence.
(2)	There was procedural unfairness at the inquiry in that there is a serious lacking of particulars in respect of charge 1, and that the records of interview of Wong and Yuen had been admitted, despite that they had not been called to testify.
(3)	For the same reasons, the Permanent Secretary erred in confirming the decision of the Committee.
(4)	The punishment awarded is “manifestly excessive” and Wednesbury unreasonable having regard to the fact that the absence was with Wong’s permission.

Ground (1): Irrationality of the Committee’s decision

17.  The applicant’s first complaint is that the evidence before the Committee shows that the applicant’s superior, Wong, had given oral permission or instruction for the applicant to be absent from duties.  Given that the applicant was charged for being absent from duty without leave or permission, it is said that the charges had not been made out and the finding of guilt of the Committee is therefore Wednesbury unreasonable.

18.  The evidence before the Committee on the charges consist of the following:

(1)	In his video-taped record of interview with ICAC officer, the applicant stated that since 2 to 3 years before 10 October 1996, there were on average 2 to 3 times a month when his team would leave the office in the department vehicle, but he and other members would get off the vehicle during the journey to have tea or attend to personal matters, and then return to the office at about 5p.m.  In the morning of 10 October 1996, the applicant again got off the vehicle and intended to have tea with his wife.  He agreed he was intercepted by the ICAC officers outside a flat that was an establishment for playing mahjong.  The applicant acknowledged it was wrong to be absent from duty and that his punch cards did not accurately record the time he went on and off duty.
(2)	In his written representation on the charges dated 28 April 2003, the applicant stated that he was unwell on 10 October 2003 and had obtained permission from his superior to go to see his family doctor.  He said he was intercepted by the ICAC officers while on his way to see the doctor.
(3)	In his record of interview given to the ICAC, Yuen stated that since he joined SCST 2-3 years ago, it happened about 2-3 times a week that he would, on Wong’s or another superior’s instructions, drive the vehicle to Wai Wah Centre where members of the respective teams would all alight.  He had heard the members mention going to have tea or something to eat.  He would enter false information in the vehicle movement records and also drive the vehicle in rounds to catch up on the mileage.
(4)	In his record of interview given to the ICAC, Wong stated that his team members, including the applicant, had on occasions asked to alight the vehicle during the journey and he would entertain their requests if there was nothing urgent to do.  This happened to Lam and the applicant about 10 to 15 times a month.  On 10 October 1996, the applicant and two other team members had sought and he had given permission for them to get off the vehicle early.  He had signed to verify the vehicle movement records though he was aware that the entries were false.
(5)	According to Mr Fong Hak Yam, the Deputy Housing Affairs Manager, each patrol team was led by a Housing Officer.  When a worker had to alight from the vehicle, it was for the Housing Officer to issue instruction to the driver to stop the vehicle to let the team get off.  Wai Wah Centre was some distance away from the areas of responsibility of the applicant’s team.

19.  In finding the applicant guilty of both charges, the Committee noted that Wong had given oral permissions for the applicant to get off the vehicle and to be absent from his duty. The Committee however took the view that it was within the reasonable expectation of an employer that his employee would perform his duties during working hours, and Wong had acted against the employer’s reasonable expectation in permitting the team members to get off the vehicle.  The Committee also had regard to the fact that the applicant acknowledged it was wrong to leave the vehicle to attend to personal matters in dereliction of his duties.  The Committee therefore considered that the applicant could not rely on Wong’s oral permission as a defence to both charges.

20.  The issue in this first ground of challenge is whether the Committee acted reasonably in the public law sense in finding both charges proved notwithstanding Wong had given the applicant permission to leave the vehicle in the course of his duty.  Central to the issue is whether it is within the proper authority of Wong, as the Housing Officer, to permit his team members to be absent from work on a regular basis, irrespective of the reasons for the absence for it is evident from the evidence that Wong did not concern himself with the reasons for the absence.  As Mr Leung for the applicant said, authority can be express or implied or ostensible.

21.  By a circular dated 8 January 1996 (“the Circular”), the Director of Housing expressed grave concerns over unauthorized absence from work and stressed that the Department would not tolerate such misconduct.  The Director further required the staff to observe strictly the series of measures to monitor staff attendance as set out in the Annex to the Circular.  Item (f) refers to leave application. The evidence before the Committee also shows a system of making and recording leave and short leave applications was in place.  The tough line taken by the Department is understandable.  It transpired from the judgment of In re Cheung Sai To and Au Man Wah (unreported) HCMP 3367 & 3368 of 1995 at p.2 that as a result of a full investigation carried out in around 1994 and 1995, the Department found 1036 cases of unauthorised absences from duty and another 106 cases of unauthorised absences from duty coupled with fraudulent claims for overtime. 

22.  Wong, as the Housing Officer, was the agent of the employer.  It was part of his duties to exercise supervision over the applicant and other members in his team.   The evidence before the Committee reveals that Wong allowed his team members to be absent from duties for most part of a working day on a regular basis, without enquiring into the need or reason for the absence.  This suggests that Wong gave permissions indiscriminately and in plain disregard of his duty of supervision.  This had continued notwithstanding the clear instructions in the Circular.  In short, Wong had not discharged his supervisory duties and had acted against the instructions of the Department.

23.  Assuming that it is within the scope of a Housing Officer’s authority to grant permission for leave, a matter on which there is no direct evidence before the Committee, the irresistible inference is that Wong had exceeded his actual or implied authority in giving indiscriminate permissions for the applicant to be absent from work on a regular basis.   The fact that the driver, Yuen, had to make false entries in the vehicle movement records and to drive the vehicle around to catch up on the mileage are clear objective indications that the Department did not accept the conduct manifested by the applicant and his team members.   It also shows at least the driver did not consider Wong to be acting within his authority in allowing the team members to get off the vehicle while on duty.  Further, the fact that Wong signed and verified the entries, which to his knowledge were false, is a strong indication that he must know that the Department did not approve of the conduct of absenting from duty as well as his own conduct of permitting the absence.  As the applicant had acknowledged, it was not right for a team member to be absent from duty to attend to personal matters, there is plainly no room for thinking that it was within Wong’s apparent authority to allow the team members to be absent from duty on a regular basis for the purpose of having tea or doing personal things.

24.  There is overwhelming evidence before the Committee that, to the knowledge of Wong and his team members, including the applicant, Wong was acting outside his authority when he orally permitted the applicant and the others to get off the vehicle and to be absent from duties for no apparent justifications.  It follows that any permission that Wong had given cannot be a valid permission for the purpose of defending the charges of misconduct.  Thus analysed, the Committee’s views that Wong’s oral permissions were incompatible with the reasonable expectations of an employer and that the applicant could not justify his absence on account of Wong’s permissions cannot be said to be irrational.  The Committee had also not gone into error in taking into account the applicant’s acknowledgement that he was wrong to be absent from work to attend to his personal matters. 

25.  Mr Leung argues that Wong was the authorized agent of the government and as such came within the definition of “employer” in section 2 the Employment Ordinance, cap.57.   He points out that Wong had been delegated the authority to determine the work for his team on each day such that Wong’s failure to assign work to the applicant on a particular day or period is not unlawful per se.  It is said that the instructions or permissions given by Wong for the applicant to alight from the vehicle and to be absent from work were therefore lawful and the applicant was under an obligation to obey.  Accordingly, the applicant had no obligation to perform his duty when he was instructed or authorized otherwise by Wong and when he was not assigned with any work.

26.  In my view, the argument is misconceived.  Firstly, it was not the applicant’s case at the hearing that he was instructed to be absent from work.  Secondly, while Wong was an agent of the Department with authority to give instructions to his team in relation to their duties, the lawfulness and propriety of his instructions must be assessed by reference to the duties he owed to the Department.  As a supervising officer, the instructions he gave must be compatible with his supervisory role and duties.  As mentioned above, Wong could not have authority to give instructions or permissions that in essence caused or condoned his team members to neglect their duties. 

27.  Thirdly, this is not a case of an employer assigning no work or not providing work for the employee.  One of the primary duties of the applicant’s team is to patrol squatter areas for the detection of unauthorized structures.  Instead of carrying out their duties, the Housing Officer, Wong, had decided or agreed that his team, including the applicant, needed not carry out their duties.  There is thus no basis for the applicant to argue that he was carrying out the lawful instructions of his superior when he alighted from the vehicle and absented himself from his duty. 

28.   Mr Leung also criticizes the Committee’s reference to the reasonable expectation of an employer as being flawed and irrelevant because absenteeism per se is not misconduct.   The crux of this argument is that the applicant’s absence was with the permission of Wong such that it could not amount to misconduct.  The essence of the charges of misconduct against the applicant is that he was absent from duty without leave or permission.  The permission or approval given by Wong, being contrary to his supervisory duties and outside his scope of authority, cannot amount to valid and effective permission for the purpose of defending the charges of misconduct.  The argument that absenteeism per se is not misconduct is therefore misplaced.

Ground (2): Procedural fairness of the Committee hearing

29.  The applicant’s complaint of procedural unfairness has two aspects.  The first relates to the charges.  The second concerns the absence of Wong and Yuen at the hearing and the admission of their records of interviews as evidence at the hearing.

30.  In relation to the charges, the applicant contends that the Committee’s reference to the reasonable expectations of an employer has the effect of subjecting the applicant to different charges.  Instead of charges of being absent from duty, they became charges of breaching the employer’s reasonable expectations.  I do not agree with this argument.  This is not a case of the applicant being subject to charges different from those he was charged with.  The applicant had raised the issue of the authority of Wong at the hearing before the Committee.  In dealing with the applicant’s contention, the Committee was at pain to point out that Wong’s permission was incompatible with the reasonable expectations held by an employer such that the applicant could not be said to be absent with permission.  Properly understood, there is no question of the Committee considering charges of breaching the employer’s reasonable expectations.

31.  Additionally, the applicant also complains that the 1^st charge lacks particulars as to the dates and time at which the applicant was said to be absent from duties.  It is not in dispute that the 1^st charge had been communicated to the applicant on a number of occasions by correspondence and during a briefing session before the hearing.  It was only in the course of the hearing that the applicant, through his defence representative, first complained about the charge lacking in particulars. 

32.  It is true that the 1^st charge had not given the exact dates and time during January to September 1996 that the applicant was said to have absented from duty.  However, it does not follow that the applicant is not made aware of the case against him and that it results in unfairness.  The Department’s case against the applicant on the 1^st charge is primarily rested upon the records of interview of Wong and the applicant.  The applicant himself had said in the interview that for 2 to 3 years, it happened 2 to 3 times a month that he got off the vehicle to have tea or attend to his personal business while on duty.  In his representations to the Department dated 18 March 1999 and in reply to the charges on 28 April 2003, the applicant denied ever being absent from duty without leave or permission.

33.  In the circumstances, there is no basis for suggesting that the applicant did not know of the case against him on the 1^st charge.  The lack of particulars of the dates and time in the 1^st charge has not prevented the applicant from properly defending himself.   More importantly, given that he denies the charge completely and his case is that he had never absented from duty without permission, the dates and time of the absence is immaterial to the conduct of his defence and the determination of the charge.  The applicant has suffered no prejudice or unfairness as a result of the 1^st charge not containing particulars of the dates and time of the absence.

34.  The second aspect of the complaint of procedural unfairness concerns the absence of Wong and Yuen at the hearing and the admission of their records of interview by the Committee.  The applicant complains that he had been deprived of his fundamental right of cross-examining Wong and Yuen.  It is said that the cross-examinations are of paramount importance in:

(i)	ascertaining the actual authority of Wong to give permissions for absence while on duty;
(ii)	ascertaining whether the applicant was instructed as opposed to merely authorized to get off the vehicle while on duty;
(iii)	whether Yuen as a driver would only stop the vehicle upon the instructions of the Housing Officer and no one else; and
(iv)	whether Yuen made his second statement after he was turned a prosecution witness.

35.  In the first place, it is clear from the affirmations filed on behalf of the respondent in these proceedings that Yuen and Wong are reluctant witnesses, perhaps understandably in view of the possible implications arising out of what they had said in the records of ICAC interviews, and they had made conscious decisions not to attend the hearing.  No criticisms can be made of the Department or the respondents for their absence at the hearings.  Also as a matter of law, it is open to the Committee to accept into evidence the records of interview of Wong and Yuen despite their non-availability at the hearing.  The only relevant issue is whether it is procedurally unfair for the Committee to have accepted and relied on their records of interview. The question depends on the utility and importance of Wong and Yuen’s attendance at the hearing. 

36.  The complaint of the applicant is that he had no opportunity to test Wong and Yuen’s statements to the ICAC by cross-examining them at the hearing.  The first important issue that the applicant wishes to explore by cross-examination is the actual authority of Yuen to give permission for absence.  As the discussions under Ground (1) of this application show, there was other objective evidence before the Committee, including the Circular, on this issue.  Any assertion or belief of Wong on his actual authority to give permission for absence from duty must be tested and weighed against the other objective evidence.  As mentioned above, it is most difficult to accept that a supervising officer is empowered to grant leave for absence from duty, irrespective of reasons and need, and on a regular basis, and which has the effect of condoning derelictions of duties by his subordinates.

37.  The second important matter that the applicant wishes to establish by cross-examinations is whether the applicant was in fact instructed and not merely authorised to absent himself from work.  Quite apart from the fact that the applicant had not suggested in his written representations and the closing submissions at the hearing that he was “instructed” to be absent, his own case at least on the 2^nd charge was that he had requested to be absent, whether for the purpose of having tea with his wife or for seeing his family doctor.  There is no basis for suggesting that Wong had given instructions for his team to be absent from duty.  The intended cross-examination is therefore an attempt to fish for evidence and probably an afterthought.  

38.  As to the third matter for cross-examination, it is the undisputed evidence of Mr Fong, the Deputy Housing Manager, that instructions to stop the vehicle should anyone wish to get off the vehicle had to come from the Housing Officer.  The non-availability of Yuen has caused no prejudice to the applicant because the point is already in evidence.

39.  On the fourth matter of whether Yuen’s second statement was given after he became a prosecution witness, this could have been raised with the ICAC investigation officers who had testified at the hearing.  Again, the issue can be canvassed and established one way or the other without having Yuen attending the hearing.

40.  In R (on the application of Vetterlein) v. Hampshire County Council [2001] EWHC Admin 560, it was pointed out that:

"A fair hearing does not necessarily require an oral hearing, much less does it require that there should be an opportunity to cross-examine.  Whether a particular procedure is ‘fair’ will depend on all the circumstances, including the nature of the claimant’s interest, the seriousness of the matter for him and the nature of any matters in dispute….”

41.  The authorities cited by Mr Leung also observed that a denial of cross-examination is not necessarily fatal if it would be irrelevant to the issues for determination, and there are cases where cross-examination is wholly unnecessary: Re Ngai Kin Wah [1987] 1 HKC 236 at 244F, Bentley Engineering Co Ltd v. Mistry [1979] ICR 47 at 51B-J. 

42.  In my view, the principles of fairness do not operate in vacuum.  What is required of a fair hearing may vary from cases to cases: see, for example, Russell v. Duke of Norfolk and Others [1949] 1 All ER 109 at 118A-E and To Chun Fung Albert v. Medical Council of Hong Kong [2002] 1 HKC 571 at 582.  Whether a fair hearing requires that there be an opportunity to cross-examine the witnesses is dependent on the circumstances of the case in question.  As I had noted in Lam Che Wai v. Director of Food and Environmental Hygiene HCAL 53 of 2003 at para. 22, the reasons and purposes for requiring cross-examinations and the prejudice occasioned by the want of cross-examination are important considerations in deciding whether an applicant had been deprived of a fair hearing.

43.  In the present case, the intended cross-examinations of Wong and Yuen are not material to the determination of the charges.  The applicant had suffered no prejudice as a result of not being able to cross-examine the witnesses.  It should also be noted that what Wong and Yuen had stated is not at variance with the applicant’s case as a whole.  The admission and use of their records of interview without their being available for cross-examinations has resulted in no unfairness to the applicant. 

44.  The challenge under this ground is based on the reasons put forward under Grounds (1) and (2).  Given my decisions on those two grounds, this ground must also fail.

Ground (4): Irrationality of the punishment

45.  Ground (4) challenges the punishment of compulsory retirement awarded by the Permanent Secretary.  Three points are relied upon in submissions.  The first is that there is a failure to take into account the absences were with permissions from Wong, a matter specifically pointed out by the Committee in its report.  The second is that the Permanent Secretary had failed to consider lesser punishment having regard to the principle of proportionality and the gravity of the absences in the light of the nature of the applicant’s duties.  The third point raised is that no prior warning had been given to the applicant.

46.  Generally speaking, it is important to bear in mind the supervisory role of the court in judicial review proceedings.  The court does not sit in the capacity of an appellate court.  Caution should therefore be exercised against using judicial review application as an appeal through the back door.  The authorities have established that the court will not interfere with a decision on punishment merely because it is harsh or severe.  It must be shown that the decision “is severe beyond and rational relationship to the seriousness of the offence and the situation of the offender”: Au Yeung Kwok Hing v. The Attorney General (unreported) Civil Appeal no. 205 of 1994 per Bokhary JA (as he then was) at p.14 and per Nazareth VP (as he then was) at p.22; see also Wong Wai Tak v. The Secretary for Civil Service (unreported) HCAL 2335 of 2000 per Hartmann J at pp.14-15 and [2002] 3 HKC 1 per the Court of Appeal at 16R-17D, and Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679 at 695J-696F  

47.  In making the decision on the punishment, the Permanent Secretary had with him the entire case file that includes the report of the Committee and M7, which incorporates the recommendations from the Secretariat on Civil Service Discipline.  Although M7 did not make specific reference to the Committee’s suggestion that the applicant’s absences were with Wong’s permissions, it cannot be said that the point must have escaped the Permanent Secretary’s attention or consideration.  M7 had, among other things, referred to the circumstances surrounding the case as one of the relevant considerations on deciding the appropriate punishment.  The report of the Committee was also before the Permanent Secretary.  To the extent that he had decided to confirm the findings of the Committee, there is no reason to believe that the Permanent Secretary had not read or consulted the Committee’s report in his decision-making process.  There is therefore no reason to believe that the Permanent Secretary was not aware of the oral permissions given by Wong and the Committee’s suggestions that this should be given appropriate considerations in deciding on punishment.

48.  That aside, looking at all the relevant circumstances of the applicant’s case, it cannot be said that the punishment awarded is so out of proportion to the offences in question as to be perverse or unduly oppressive.  Firstly, as the judgment of Re Cheung Sai To and Au Man Wah, supra, shows, misconduct associated with unauthorised absences were prevalent in the Department.  The disciplinary actions taken by the Department before 1996 and the Circular would have brought home to the applicant the gravity of such conduct and the consequences.  The applicant had also prior to the present disciplinary proceedings been disciplined for the same offence.  The complaint of no prior warning is untenable.

49.  Secondly, with the disciplinary actions taken by the Department in 1994 and1995, his own previous disciplinary experience and the Circular, the applicant cannot reasonably believe that he had committed no misconduct merely because of the oral permissions given by Wong. 

50.  Thirdly, it cannot be said that because the absences of two days a month might not have grave disruptive effect on the applicant’s duties, the misconduct involved was not serious.  Not only is regular unjustified absence a serious matter in itself, the applicant’s absences also involve blatant disregard for the instructions and warnings of the Department as contained in the Circular.  It is unfortunate that the disciplinary proceedings only concluded some years after the misconduct arose, but that in itself does not mean that the award of compulsory retirement is Wednesbury unreasonable.

51.  In my view, the punishment that the Permanent Secretary had awarded is one that is within his range of power to make.  The decision cannot be said to be unjustified, let alone irrational, having regard to the circumstances of the case. 

Conclusion

52.  For the above reasons, the application for judicial review is dismissed.  Applying the rule of costs follow event, I make an order nisi that the applicant pays the respondents the costs of the application, to be taxed if not agreed.