THE HIGH COURT
		1993 No. 5377 p
BETWEEN
PERMANENT DEFENCE FORCE OTHER RANKS REPRESENTATIVE ASSOCIATION AND GERRY MARTIN
		PLAINTIFFS
AND
THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL
		DEFENDANTS

Judgment delivered the 4th day of May, 1999 by Mr. Justice Geoghegan

	For all practical purposes, this is a quasi industrial dispute within the Army which has unfortunately ended up in the Courts.  Although, for reasons which I will explain, the action took up several days of hearing, the only task which this Court has to perform, in my view, is to interpret Paragraph 68 of the Defence Force Regulations, S.3.  
	In order to explain the nature of and background to this case, I intend to start by setting out some of the relevant parts of Paragraph 68 which is headed "Subsistence Allowance".  The first part of Paragraph 68(1)(a) reads as follows:-

	"Subsistence allowance for periods of necessary absence on duty from their stations not exceeding thirty days at a time shall be paid to non commissioned Officers and Privates (other than personnel of survey company, corps of engineers, when engaged on Field Survey duties) at the rates specified hereunder.  These rates are intended to cover all expenses for accommodation, meals and incidental charges."

There are then set out daily rates and nightly rates which of course have varied over the years by amendment.  The lowest daily rate is inserted immediately after the words, "Over five hours and not exceeding nine hours".  There are then set out higher rates for the periods, "Over nine hours and not exceeding fifteen hours" and "Over fifteen hours and not exceeding twenty four hours".  The nightly rates are intended to include accommodation and rationing.  There is a lower rate for up to fourteen nights in one place and a higher rate for anything more than fourteen nights in the one place.  Sub-section (b) of Paragraph 68(1) provides that a soldier absent on duty from his station shall, if he is at a place in which there is an occupied post, be accommodated at that post and further provides that if the period of duty in such a place exceeds two days that he be placed on the ration strength as and from the third day.  There is a special rate to be payable to him if he is accommodated but not rationed but when he is both accommodated and rationed, no subsistence allowance is to be payable.  Obviously, a subsistence allowance would be payable if he was accommodated but not rationed.  Under sub-section (c), the nightly rate is in each case to cover a period of twenty four hours.  Under sub-section (d), the daily rate is not to be payable if the place at which the soldier is located during the period of his absence on duty from his station is less than five miles from either his home address or his station and finally, under sub-section (e), the nightly rate is not to be payable if the place at which the soldier is located during the period of his absence on duty from his station is less than fifteen miles from either his home address or his station.
	Where a non commissioned Officer or Private is under full rations in his own barracks, there is a small deduction from his pay.  Paragraph 68 goes on to provide that such a deduction should continue to be made without interruption while he is in receipt of a daily rate of subsistence allowance.
	I now turn to the facts which will be easier to understand in the light of that short explanation of Paragraph 68.  A major operation took place on the border between 20th January, 1992 and 14th April, 1992.  It was known as "Operation Mandrake".  To put the matter into some perspective, the uncontested evidence was that this operation was the largest enterprise engaged in by the Defence Forces since the Second World War.  The Second named Plaintiff took part in that operation and was attached to the A Company 29th Battalion in Monaghan.  The Plaintiff was involved in duties at observation posts for periods of up to twelve hours.  He was, therefore, necessarily absent from duty from his station for periods in excess of five hours.  When the said Plaintiff was taking part in the night shift which was nearly twelve hours long, he travelled to Monaghan from his home in Balbriggan and was then at an outpost all night.  It is not necessary to go into the large amount of small detail which was adduced in evidence.  The issues between the parties are quite clear.  The Plaintiffs allege that the members of the Defence Forces, such as the Second named Plaintiff, on duty during "Operation Mandrake" were entitled to subsistence allowances under Paragraph 68 but did not in fact receive them.  It would not be in dispute that the period of duty away from station would be over five hours and that the five mile requirement would also have been complied with.  The Defendants, on the other hand, maintained that the soldiers on "Operation Mandrake" were fully rationed, or in other words, that they received full meals and that in those circumstances they cannot be entitled to a subsistence allowance.  The Defendants submit that Paragraph 68 is essentially a rate fixing paragraph and that it was never intended to convey that merely because a soldier was away from station for over five hours and otherwise complied with the conditions under the Paragraph, he was automatically entitled to subsistence.  The Defendants argue that a "subsistence allowance" can never, by definition, be payable in circumstances where the subsistence which it is intended to cover has in fact been made available by the employer.  The Plaintiffs' counter argument is that this is a misreading of the Regulation and that it is irrelevant whether they were fed while on duty away from station or not but they alternatively argue that if they are wrong about that, the soldiers were not in fact rationed because the day time meals provided were inedible and the night time meal consisted only of sandwiches.  Extensive time was taken up in this case with evidence concerning the quality of food provided.  I consider that this evidence was all irrelevant.  In the context of whether a subsistence allowance is payable or not and assuming that the question of whether a meal was provided or not is relevant, the quality of that meal could not possibly be relevant.  In other words, for this purpose, a badly cooked meal could not be equated with no meal.  Members of the Defence Forces in the ordinary way in their barracks are entitled to rationing and the system of rationing is set out in elaborate regulations, some of which were produced to the Court.  In the unlikely event that there was a failure on the part of the Army Authorities to provide Privates with rationing or indeed even if the food provided was consistently inedible there are probably other remedies such as, for instance, judicial review.   But the quality of the food cannot have any bearing on whether a subsistence allowance is payable or not.  Only the nature and quantity of the food can have a bearing on that issue.  
	Not only has there been evidence as to the quality of the food provided, but in the case of witnesses who alleged that the food was bad, different reasons were put forward for this.  It was particularly alleged by a number of witnesses that what was meant to be hot food was in fact cold, etc.  I make the following findings of fact:-

(1)	The provisions of rations for the soldiers, while on operations, was an innovation introduced for the purposes of "Operation Mandrake" or, at the very least, it was an innovation in terms of the scale in which it was done.  There may possibly have been isolated instances of it being done before but nothing in the scale of "Operation Mandrake".

(2)	Largely for that reason, there were mistakes at the beginning.  Inadequate containers were used for retaining the heat and also for keeping food such as sandwiches fresh.  Bad systems were allowed to prevail whereby as a consequence of the constant opening of containers along the line while different soldiers at different posts were being fed the food gradually became cold so that the men in more distant out-posts got defective food.

(3)	At the beginning of the operation, a hot meal was provided to the soldiers on nightly duty.  This was later discontinued and sandwiches were provided instead.  I am satisfied that this was at the specific request of the soldiers and that no criticism can be levelled at the superiors for this change.  Food and, in particular, sandwiches were at certain stages during "Operation Mandrake" deliberately returned uneaten so as not to jeopardise the subsistence claim.  It seems likely that there was an element of collusion in this.  

(4)	The members of the Defence Forces in charge of cooking, preparing and delivering out the food at all material times did their utmost to secure that satisfactory meals were in fact provided.  I was most impressed by the relevant witnesses in this regard and I basically accept their evidence.

	On foot of these findings of fact, I am satisfied that the soldiers were fully rationed while on "Operation Mandrake" and that no relevant distinction can be made between different battalions.  In these circumstances, the question arises, can they claim subsistence as well?  As I have already indicated, I take the view that this is entirely a matter of interpretation of Paragraph 68.  I agree with the submissions of Mr. Maguire, Counsel for the Defendants, in relation to this Paragraph.  It is a rate fixing and procedural Regulation dealing with subsistence payments.  It is not a comprehensive Regulation intended to set out when exactly subsistence is to be paid.  Underlying the Regulation is an assumption that the soldier was in the relevant circumstances unfed or unaccommodated and therefore ought to have received subsistence by way of reimbursement.  For a soldier for whom accommodation is made available, even if he does not take it up and who is fully fed cannot by definition, in my view, claim a subsistence payment.  It is a misreading of Paragraph 68 to suggest otherwise.
	Having said that, it is necessary to add that the factual position on the ground in the Army was none too clear and it is not at all surprising that a dispute has arisen.  I am satisfied that over the years different superiors in different battalions have taken different views in relation to subsistence.  I am also satisfied that partly for budgetary reasons, the whole system became tightened up at the time of "Operation Mandrake".  It is clear that directives were given from on high.  But I am satisfied that these directives intended merely to have the effect that the Regulations would be strictly enforced, it being acknowledged that there was a certain looseness and laxity in the making of subsistence payments.  I do not think that any legitimate expectation of an enforceable nature could arise.  The book of documents each lettered 'E' which has been provided to me clearly demonstrates a considerable element of confusion within the Army as to when exactly subsistence payments were to be made.  But the fact remains that if the Second named Plaintiff and the other persons whom he represents were to be given subsistence payments in respect of their operations during "Operation Mandrake" notwithstanding that they were fully rationed, there would in effect be double subsistence by the State and that can never have been intended by the Regulations.  In my view, and for the reasons which I have indicated, this action must fail but there is one other matter to which I should refer.  A certain amount of reliance has been placed by the Plaintiff on a sentence in Paragraph 41A of the same Regulations.  The sentence appears in sub-paragraph (3) which sets out certain circumstances in which a deduction from pay in respect of rationing is not to be made.  At the bottom of the sub-paragraph, the following sentence appears:-

	"Free rations shall not be issued concurrently with payment of an allowance under the provisions of paragraphs 68, 72, 117, 123(1)(a) or 126."

This sentence cannot be taken out of the context in which it appears.  That context is an amendment to the Regulations by the insertion of Paragraph 41A.  I am satisfied from the evidence that this amendment was largely brought about following on the review of Army Pay and Conditions by the Gleeson Committee.  In certain circumstances, a deduction from pay is not to be made notwithstanding that free rations are provided but this is not to be so in cases where allowances are paid under any of the numbered paragraphs.  I suppose that it can just about be argued that the inclusion of "paragraph 68" in the list might amount to an acknowledgement that it may happen from time to time that a subsistence payment is made to somebody who has been rationed.  But that is the furthest that the Plaintiffs can put it.  I have already found, as a fact, that there was complete inconsistency and looseness in the application of the Regulations and I have no doubt that this did happen at times.  But that single sentence in paragraph 41A which relates to the other matters contained in that paragraph cannot be used for the purposes of interpreting paragraph 68 in the way suggested on behalf of the Plaintiffs.
	The Action must be dismissed.