The amendments which were referred to the Joint Committee for consideration can now be moved. I take it that the further amendment suggested by the Committee will be moved as an amendment to amendment No. 2.
PRIVATE BUSINESS. - LIMERICK HARBOUR BILL, 1926 (SEANAD)—FOURTH STAGE.
I move the following amendment:—
In page 15, before Section 21, to insert a new section as follows:—
(1) The Commissioners may, at their discretion, grant to any whole-time officer or servant in their employment who either—
(a) has attained the age of 65 years and has at least twenty-five years' continuous service, or
(b) becomes incapable of discharging his duties with efficiency by reason of permanent infirmity of mind or body not caused by his own misconduct, or of old age, and who has not less than ten years' continuous service.
upon his resigning or otherwise ceasing to be employed an annual allowance for his life not exceeding in any case two-thirds of his annual remuneration and emoluments, and subject to that over-riding limitation, not exceeding an annual sum calculated at the rate of one-sixtieth of his annual remuneration and emoluments for every completed year of service with the Commissioners.
(2) The Commissioners may, at their discretion, grant to any whole-time officer or servant in their employment who has at least ten years' continuous service and who retires or is removed from his employment in consequence of the abolition of his office or situation, or for the purpose of facilitating improvements in the organisation or working of the undertaking of the Commissioners, by which greater efficiency and economy can be effected, such special annual allowance for his life by way of compensation as on full consideration of the circumstances shall appear to the Commissioners to be a reasonable and just compensation for the loss of his office or situation, but not exceeding in any case two-thirds of his annual remuneration and emoluments and subject to that over-riding limitation not exceeding an annual sum calculated at the rate of one-sixtieth of his annual remuneration and emoluments for every completed year of service with the Commissioners.
(3) The Commissioners may, at their discretion, grant to any whole-time officer or servant in their employment, whose service is less than ten years, and who either—
(a) becomes incapable of discharging his duties with efficiency by reason of permanent infirmity of mind or body not caused by his own misconduct, or of old age, or
(b) who retires or is removed from his employment in consequence of the abolition of his office or situation, or for the purpose of facilitating improvements in the organisation or working of the undertaking of the Commissioners by which greater efficiency and economy can be effected.
upon his retiring or ceasing to be employed, a gratuity not greater than one-sixth of his annual remuneration and emoluments for every completed year of service with the Commissioners.
(4) The payment of any allowances and gratuities authorised to be paid by this section shall be a purpose to which the tolls and other income received by the Commissioners may be applied.
(5) The grant of any annual allowance or gratuity made prior to the 1st day of June, 1926, by the Commissioners to any of their former officers or servants is hereby confirmed, and the payment thereof is hereby declared to be a purpose to which the tolls and other income received by the Commissioners would have been and may be applied, notwithstanding that the amount of any such allowance or gratuity exceeds the rate authorised by this section.
(6) In this section the expression "annual remuneration and emoluments" means in relation to an officer or servant who has been employed for not less than three years the average amount of remuneration and emoluments during the three years ending on the day on which he resigns or otherwise ceases to be employed, and in relation to an officer or servant who has been employed for less than three years the average amount of his remuneration and emoluments during each completed year of service.
I beg to move:—
At the end of sub-section (1) to add the following words:—
"Provided that for the purpose of calculating any annual allowance which the Commissioners may, at their discretion, grant to the secretary holding office at the date of the passing of this Act, it shall be lawful for the Commissioners to add any number of years not exceeding ten to the actual number of completed years of service of the said Secretary."
There are exceptional reasons for this amendment. The present occupant of the office is an old man. He is well over 80 years of age. He has given valuable service and he is anxious to keep on the office. The Commissioners are anxious to be in the position that if he is knocked out they will be able to add a certain number of years to his service and give him fair compensation.
No doubt this gentleman has given very valuable service for the number of years he has been in office. He is now, I understand, about 85 years of age. He was almost 70 years of age when he entered office as secretary to this Board. He was a very successful business man, I understand, and carried on business as a corn merchant, a manure merchant and coal importer.
Is he getting a pension for all these?
He gave up business in order to get this position. I am sure that when he was giving up business he kept something for himself. As my colleague has stated, he gave valuable service but it is unreasonable to adopt the procedure of extending the years of service in order that the pension should be increased. It is a bad policy and I object to it.
The points for and against this amendment have been put. We have this exceptional case of a man who went into the post when he was almost 70 years of age. He has now completed 15 years and he is still actively working at the age of 84 years. It is proposed by this amendment that certain additional years shall be given to him. That really arises from the insertion of this superannuation allowances and gratuities section under my amendment. Otherwise if that were not there the Commissioners would have given him whatever retiring allowance they liked. They are now tied to a certain sum and the case is made that this gentleman would be entitled only to one quarter of his present emoluments by way of pension. That does not seem enough and the amendment is accordingly being moved. I have Deputy Nolan's objection to the proposal; it seems undesirable to have a special provision made for a single individual in a measure of this general type. The House is free to vote as it likes on the matter.
There is another point that must be made so that the House may have the facts properly before it. This gentleman went into the service of the Harbour Commissioners at the age of 69. He had a successful business career, according to Deputy Nolan. He goes into the post at an age when most men would be thinking of pension rights and not of the work, and he has had the advantage of being in this post for 15 years—up to the age of 84 years. There is no doubt the Commissioners have got very valuable work out of him. He has given good service, but if you are giving a man extra years, not for the abolition of office but because of the circumstances of the date when he entered the office and his age at the present moment, it is a different matter.
The Minister for Industry and Commerce has proposed amendment 1 dealing with superannuation allowances and gratuities. Deputy P.K. Hogan has moved a further amendment to that amendment. I will now put Deputy Hogan's amendment.
Amendment put and negatived.
Amendment 1 put and agreed to.
I beg to move:
In page 15 before Section 22 to insert a new section as follows:—
(1) The Minister for Industry and Commerce may by order appoint a fit and proper person (in this Act referred to as "the auditor") to examine and audit the accounts of the Commissioners, and may by such order fix the amount of the payments to be made by the Commissioners by way of salary and expenses (if any) to the auditor.
(2) The amount of the payments so fixed as aforesaid shall be paid by the Commissioners to the auditor out of the tolls and other income received by them.
(3) The Minister for Industry and Commerce may by order remove the auditor from office, and shall by the same or any subsequent order, unless the appointment of an auditor appears to him for any special reason to be unnecessary, appoint a fit and proper person to be the auditor in lieu and stead of the auditor so removed.
Deputy Cooper is moving a further amendment to this amendment.
I was Chairman of the Committee that considered this Bill and the amendments. The Committee considered it desirable, while adopting the substance of the amendment proposed by the Minister, that it should be altered in such a way as to make it mandatory on the Minister to appoint an auditor. The sub-section sets out that the Minister for Industry and Commerce may, by order, appoint a fit and proper person. I move as an amendment to the Minister's proposal: "In sub-section (1), line 1, to delete the word ‘may' and substitute therefor the word ‘shall.'" That is what the Committee suggests.
All the other provisions relating to the audit are compulsory. It is compulsory for the secretary and the Commissioners to attend the audit. It is compulsory on the Harbour Commissioners to submit their accounts for audit, and the Committee held that it should be made compulsory on the Minister to appoint an auditor. The Minister has ample power under later portions of the section to remove the auditor from office if he considers him unsuitable and appoint another auditor to replace him. It is not unreasonable to ask that the obligation should be the same on both sides. The Commissioners are obliged to submit their books for audit, and the Committee are of opinion that the Minister should be compelled to appoint an auditor.
The amendment itself is not, I suppose, objectionable, but it hardly carries out what appears to have been the intention of the Committee, that is, to make it mandatory that there should, in all cases, be appointed a fit and proper person to examine and audit the accounts. Deputy Cooper refers to the power I have under this amendment. That power negatives, or does away with, the intention of the Committee with regard to the first amendment. Although in sub-section (1) I have power to appoint, when it comes to sub-section (3) I have the power, by order, to remove that auditor from office, and shall, unless the appointment of an auditor appears for any special reason to be unnecessary, appoint another auditor to take his place. I suggest that if the Committee wanted to make the thing quite binding, they should have paid some attention to sub-section 3 of amendment 2. The new position would be that instead of leaving it that I may appoint an auditor in cases where it seems right and proper, I must appoint the auditor, then remove him, and make no appointment in his place. It does not seem to me that that is a desirable thing.
The Committee assumed that the special reasons referred to in sub-section 3 do not exist at the present time. The provision made in this section is for the existing situation, a normal situation under which the Limerick Harbour Commissioners are to operate. The only special reason there could be would arise if there were no accounts to audit. If for some reason, let us suppose, owing to the development of the Shannon scheme or any other scheme, the Port of Limerick ceased to function for a year and therefore there would be no dues, that would appear to me to be one special reason that could arise for not having an auditor. If there were no accounts it might not be necessary to have an auditor. The Committee assumed the special case put forward in sub-section (3) is non-existent at the present moment, and therefore they think the auditor should be appointed at present when the Harbour Commissioners are working under normal conditions.
Under the Docks and Piers Act or some such Act, is there not power in the Commissioners to appoint an auditor themselves, and furthermore is it not compulsory on them to publish the balance-sheet of their accounts? Why should the power be taken away from the Commissioners to appoint their own auditor? Of course I know the auditor is always subject to the supervision of the Department of Industry and Commerce.
I would like to put the view which occurs to me that this is a private Bill touching the Limerick Harbour and the Limerick Harbour Commissioners, and it seems to be more fitting that provision regarding the appointment of an auditor should be put in the terms of "may by Order" rather than that we should insert in that private Bill a mandatory provision that the Minister "shall" appoint such an official. I think the right course, if we wanted to ensure that the Minister would carry out this optional provision, would be that we would pass a resolution that it was desirable that that should be done rather than to make this a mandatory provision. I think there are many cases where the optional "may" is almost invariably deemed to be mandatory. From the point of view of the construction it seems to me that the alteration of this section to "shall" would be somewhat out of the regular course and therefore undesirable.
The Minister for Industry and Commerce has moved Amendment No. 2, and Deputy Cooper has moved a further amendment to that amendment. I will now put Deputy Cooper's amendment.
Amendment put and negatived.
Amendment 2 put and agreed to.
I beg to move:—
In page 15, before Section 22, to insert a new section as follows:—
(1) It shall be the duty of the secretary to the Commissioners on any examination and audit of accounts to attend before the auditor at the appointed time and place, and there to produce and give to the auditor all his books of accounts, vouchers, receipts, and other documents, and all such information in his possession as shall be required by the auditor, and it shall also be the duty of the Commissioners and every officer and servant (other than the secretary) of the Commissioners if required by the auditor so to do to attend before the auditor at the time and place appointed for the examination and audit, and there to produce and give to the auditor all such documents and information in their possession respectively as shall be required by the auditor.
(2) It shall be the duty of the auditor on any examination and audit under this section to examine into the accounts of the Commissioners and to disallow and strike out of such accounts all payments, charges, and allowances made by any person, and charged on the funds of the Commissioners contrary to law, or which he deems to be unfounded, and to surcharge the same upon the person making or authorising the payment, charge, or allowance so disallowed and struck out, and thereupon to certify the same to be due from such person.
(3) The auditor shall, on application made to him in writing within ten days after the completion of any examination and audit made by him under this section by any person aggrieved by any allowance, disallowance, or surcharge made by him on such examination and audit, state in writing his reasons for such allowance, disallowance, or surcharge and furnish forthwith a copy of such statement to such aggrieved person.
(4) Any person aggrieved by any allowance, disallowance, or surcharge may, within twenty-one days after the completion of the audit if a statement of the auditor's reasons for such allowance, disallowance, or surcharge has not been applied for within ten days after the completion of the audit, or within fourteen days from the furnishing of the statement of such reasons if such statement has been applied for within the time aforesaid either—
(a) appeal to the Minister for Industry and Commerce in the manner to be prescribed by such Minister, and such Minister shall deal with the matter (including, but subject to the provisions of this section, the costs of appeal) as justice may require, and the decision of such Minister on any such appeal shall be final and shall not be subject to appeal to or review by any court; or
(b) in lieu of such appeal to the Minister for Industry and Commerce, apply to the High Court for a writ of certiorari to remove into the said Court the said allowance, disallowance, or surcharge in such manner as may be provided by rules of court, and on the removal of such allowance, disallowance, or surcharge, the Court shall make such order thereon (including, but subject to the provisions of this section, an order as to costs) as justice may require.
(5) On any proceedings under the foregoing sub-section the Minister for Industry and Commerce or the High Court as the case may be may if it appears to such Minister or Court that the decision of the auditor was correct, direct that the costs of the auditor be paid by the person appealing or prosecuting such writ of certiorari as the case may be, or if it appears to such Minister or the High Court that the decision of the auditor was erroneous direct that the costs of the person appealing or prosecuting such writ of certiorari as the case may be, be paid out of the tolls and other income of the Commissioners, but in no case shall any order for payment of the costs of the person appealing or prosecuting such writ of certiorari be made against the auditor.
(6) Any costs (including costs between solicitor and client) incurred by the auditor in relation to any proceedings on any appeal or writ of certiorari under this section and which have not been recovered by the auditor from the person appealing or prosecuting such writ of certiorari shall be paid to the auditor out of the tolls and other income of the Commissioners.
(7) Any sum certified by the auditor under this section to be due by any person shall (subject to any reversal, cancellation or variation of the certificate by the Minister for Industry and Commerce or the High Court) be paid by such person to the auditor within twenty-one days after the completion of the audit or, in case an application has been made for a statement of the auditor's reasons for such allowance, disallowance, or surcharge, within fourteen days from the date of the delivery of such statement, or, in case an appeal has been made to such Minister or proceedings have been taken by way of certiorari, within fourteen days from the date of the decision on such appeal or proceedings, and every allowance made by the auditor which has been disallowed by such Minister or Court shall be a sum due from the person making or authorising the payment which was the subject of such allowance, and shall be paid to the auditor within fourteen days from the date of the decision of such Minister or Court, and any sum payable under this sub-section, to the auditor may, if not so paid in accordance with this sub-section, be recovered as a civil debt by the auditor by action or other proceeding in any court of competent jurisdiction, and every sum paid to or recovered by the auditor under this sub-section shall, when received by him, be applied by him in the manner directed by the Minister for Industry and Commerce, and any costs and expenses by the auditor in proceedings for the recovery of any such sum which are not recovered by the auditor from the defendant in any such proceedings shall be paid to the auditor out of the tolls and other income of the Commissioners.
(8) Every person who being required by or in pursuance of this section to attend before the auditor or to produce any document or give any information to the auditor fails or refuses so to do shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds or at the discretion of the court to imprisonment for a term not exceeding one month.
(9) Every person required by or in pursuance of this section to produce any document or to give any information to the auditor shall if so required by the auditor verify on oath (which oath the auditor is hereby authorised to administer) any document produced or statement made by him to the auditor and any person who shall upon examination upon oath by or before an auditor under this section wilfully give false evidence shall be guilty of perjury, and shall be punishable accordingly.
Amendment agreed to.
Question—"That the Bill, as amended, be received for final consideration"—put and agreed to.
Fifth Stage fixed for Tuesday, 22nd June.