IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

ACTION NO. HBJ0015 OF 1995

BETWEEN:

STATE

AGAINST

THE UNIVERSITY OF THE SOUTH PACIFIC

EX-PARTE:

DALIP KUMAR RAM
(f/n Bal Ram)

A.C. Kohli for the Applicant
F.G. Keil for the Respondent

Dates of Hearing: 24th January, 13th June, 5th July 1996
Date of Judgment: 23rd July 1996

JUDGMENT

INTRODUCTION

On the 24th of June 1993 the Applicant was offered employment with the University of the South Pacific as a Programmer/Analyst for a contract period of three years commencing on the 9th of August 1993. His contract in the normal circumstances would still have been valid and would have expired on the 9th of August 1996.

On the 11th of April 1995 the Applicant was charged with an allegation of misconduct as defined by Section 1(c)(ii) and (iv) of the Ordinance for the Discipline of Academic and Comparable Administrative, Library and Technical Staff (1986) in that -

(a)	on or about 23rd March 1995 he without authority, made alterations or deletions to the University's computer records of courses and grades of Ms Shashi Anirupa (S91342980); and

(b)	on or about 24th March 1995 he, without authority, made alterations or deletions to the University's computer records of courses and grades of the following three students:

(1)	Lalatoa Mulitalo (S90086320)
(2)	Umesh Chand Ram (S91001480)
(3)	Joseph Baleimatuku (S91000910)

The Staff Conduct Committee was convened to investigate the allegations. After deliberation the Committee sent its report to the Vice Chancellor on the 23rd of June 1995.

In its report the Committee said on page 1:

"Summary. The Committee unanimously finds that Dalip Kumar Ram deleted University computer records without authorization. The Committee also unanimously recommends the penalty of dismissal."

The Applicant filed an application for leave to apply for Judicial Review of the decision of the Staff Committee, being of course that of the Respondent, on the 25th of July 1995 and on the 24th of January 1996 by consent I gave the Applicant leave to judicially review that decision. A copy of the transcript of the proceedings before the Staff Conduct Committee was annexed to the affidavit of the Applicant in support of his application for leave to apply for Judicial Review but on the 17th of August 1995 after having read that copy transcript I found most of it unintelligible. I adjourned the matter to a date to be fixed to enable the parties to attempt to correct the transcript and, if that were done, to provide the Court with a corrected transcript.

On the 13th of October 1995 the parties again appeared before me when I ordered the Respondent to make all the necessary corrections and additions to the transcript of the hearing by the 13th of November 1995. The Applicant was also to satisfy himself as to the accuracy of the revised transcript by 20th of November and I then adjourned the matter for mention in my Chambers on the 24th of November. On that date the Applicant through his counsel indicated that he was satisfied with the accuracy of the transcript and I therefore fixed a date for hearing of argument on the 16th of January 1996.

On that day counsel for the Respondent said that the Applicant should have exercised his right of appeal given to him by Section 5 of the Ordinance and agreed that the Applicant should be given the right to file a supplementary affidavit stating his reasons for not appealing to the Council of the University rather than seeking Judicial Review.

On the 18th of January 1996 the Applicant swore a supplementary affidavit in which he stated that he had been advised that the procedure of Judicial Review would be much speedier than pursuing an appeal and that the matter could be determined before the expiry of his contract.

On the 24th of January as I have stated above leave was given to him to judicially review the decision and a timetable was then fixed for the filing of written submissions and an Affidavit in Reply by the Respondent. That affidavit was not filed on the due date although an attempt was made later to do so. This was opposed by the Applicant and as I did not consider that it gave me much assistance in helping me reach a decision I rejected the application for filing.

The relief which the Applicant seeks is first an order of certiorari to remove the decision of the University of the South Pacific of the 5th of July 1995 and quash the same and secondly a declaration (in any event) that the University had acted in breach of the rules of natural justice or exceeded its jurisdiction.

The Applicant also seeks damages.

The grounds on which relief is sought are to a large extent those held by Lord Scarman, Lord Diplock and Lord Roskill in Council of Civil Service Unions and others v. Minister for the Civil Service (1984) 3 ALL E.R. 935 to be the normal heads of judicial review namely illegality, irrationality and procedural impropriety. As to these, Their Lordships define:

(1) 	illegality as being where the decision-making authority has been guilty of any error of law, e.g. by purporting to exercise a power it does not possess;

(2) 	irrationality where the decision-making authority has acted so unreasonably that no reasonable authority would have made the decision;

(3)	procedural impropriety where the decision-making authority has failed in its duty to act fairly.

These three heads of course are now virtually engraved on the minds of all practitioners and judges who have to consider applications for judicial review but in addition in this case the Applicant claims that the University exceeded its jurisdiction under the University of the South Pacific (Constitution) Regulations.

I say immediately that no where in the material and submissions filed on behalf of the Applicant are particulars given of any of the grounds I have just mentioned and I shall return to this matter later in this judgment.

THE EVIDENCE BEFORE THE COMMITTEE

I pass on to a consideration of evidence given at the two sittings of the Staff Conduct Committee held at the University on the 11th of May and 2nd of June 1995 but before doing so should state that the Applicant's work at the University entailed analysing, developing and testing the software and general work related to that of a Programmer/Analyst but particularly software relating to the University record/keeping of the students, finance and human resources.

Under Section 2(3) of the Ordinance the Staff Conduct Committee is required on receipt of a charge against a member of staff to investigate the charge and determine -

(a)	which, if any, of the allegations in the charge have been proved beyond reasonable doubt;

(b)	whether such allegations as are proved constitute misconduct or gross misconduct and impose the appropriate penalty.

The members of the Committee which heard the charges against the Applicant were Dr. John Hosack (Chairman), Mr. Paula Kunabuli (member of Council), Mr. Roger Landbeck (non-professional member of the Senate), Dr. Dharmendra Sharma (member of the Applicant's University Staff Association) and Professor Subramani.

According to the transcript it appears that Dr. Sharma took a very active part in the hearings as shown by the number of questions which he asked the various witnesses before the Committee and comments which he made during the hearings.

This is not in any way meant to infer that the other members were not actively involved in the hearings because it is obvious that the person transcribing the evidence which was taped could not frequently identify the voices of the various persons who spoke. It must also be stated that the Chairman, as befits his role, also took a very active part in the proceedings.

From the transcript it is clear that the charges against the Applicant originated sometime during the day of the 23rd of March 1995 and in the morning of 24th of March when Marie Bolton who was the Acting Head of the Administrative Section of the University gave evidence that she had been informed by Teresia Mitchell of the Academic Section that it came to her notice that a student's transcript had been printed by one of the two computers used in the University Opsbanner user. The other as to which much evidence was given is called Oracle. Miss Bolton who was employed with three other University staff members including the Applicant in the Computer Centre considered this claim to be serious because it appeared that the Applicant had used the machine to print an official transcript.

At the time the Director of the Computer Centre Dr. John Clayton was not at the University so Miss Bolton telephoned at his home about 8 or 9 p.m. that night.

After this Miss Bolton decided to run the audit on the machine and when she did so she discovered that deletions had been made from a student's academic history. She then phoned Dr. Clayton again and it was decided to have a meeting of all the Computer staff early the next morning. In the meantime Dr. Clayton changed the password to prevent any further deletions or alterations occurring.

The next morning the passwords of all four members were changed and each member including the Applicant given a new password. All those present were asked and denied making any deletions from the academic history. Those present were Dr. John Clayton, Marie Bolton, Satish Naidu and the Applicant. The only person not present was Parbendra Singh the Manager of the Administrative Computer Section who was on leave at the time.

On the morning of the 24th of March at sometime between 8 a.m. and midday three further deletions took place.

According to Marie Bolton only two persons had permission to make deletions from history files namely Joe Osborne from Extension and Tito Isala from Laucala.

I do not propose to refer to the evidence given in any detail except to mention that which I consider most relevant to this application. It was not disputed by the Applicant that the deletions could only have occurred through the action of some person or persons and not through some malfunction of the Banner/Oracle system or accidental Programmer error. Dr. Clayton stated that although it was possible somebody else could have made the deletions he considered this unlikely. It was put to him by the Applicant and the Chairman that a member of the Administrative Section could have made the alterations in the log file to which Dr. Clayton replied to do this the person would have to have a vast amount of knowledge and information. He considered that although it was possible it was so unlikely and so difficult to do that it had to be ruled out as "an incredible scenario". He said that basically the system was used by the people in the Computer Centre, Technical Section and by one or two other people including the Chairman of the Committee but that very few people outside the Computer Centre used it. Furthermore it was recorded that the terminal type was associated with the Applicant's user name and was of this type. Furthermore he said, the Oracle system is a mature widely used operating system used in secure environments and often regarded as a very secure operating system compared with other cheaper systems. He said it was difficult to believe that either Oracle or VMS system had accounting or audit trail logs which were so easy to tamper with. If that were the case their whole basis would be undermined. Then Dr. Clayton gave what I consider the most important evidence in this case and he described it as a crucial fact namely that the first deletion took place on Thursday the 23rd of March. On the morning of the 24th he gave everyone new passwords and by midday on that day three further deletions had taken place, so that if anyone had obtained the Applicant's password that person would also attempt to get his new one by midday on the Friday. There was no evidence that this had occurred or that some outsider knew the Applicant's new password.

Parbendra Singh stated that he thought that there was no chance or opportunity for someone to hack into the system although this could be done by people in the know. He said that there were three or four people namely the Applicant and the other members of the Computer Centre who could have made the deletions but as he was absent at the time there were only three people Marie Bolton, Satish Naidu and the Applicant who could have done it. He discounted completely the chances of anyone else who had no intimate knowledge of the system making the deletions.

All the other evidence with the exception of that of the Applicant was to a like effect. It was said that the only possible persons apart from the Applicant who could have made the deletions were those with privileges in the systems group and they would have to know thoroughly the structure of the accounting file.

Interestingly among these other witnesses was Mr. Simon Chand a Senior Systems Analyst of the Fiji Government who was called by the Applicant and who said that Oracle was considered to be the best database system in the world and that he had had four years experience on it.

The Applicant also gave evidence. He said the reason why he had asked for the transcript on the 23rd of March was so that he could send it to the Public Service Commission for his sister Shashi Anirupa where she had got a job as a teacher. The transcript was required for salary assessment based on the number of units passed.

When questioned he agreed that he knew only the academic office could print official transcripts but denied a suggestion by Dr. Sharma that he knew he was doing a foolish thing and went ahead and did it. The Applicant said that the reason why he had attempted to print the official transcript was because he wanted to see whether it was possible to print a transcript for a student even if he or she had a financial hold in the computer. As to this Dr. Sharma remarked that he was not supposed to do that when the system was all packaged. Its function was to be used as it was and not to be experimented with. It was then the Applicant alleged that he considered somebody was involved in a conspiracy against him so as to get him into trouble. When he was pressed for names he said that he had a strained relationship with his Manager Parbendra Singh for about a year. He also said that Marie Bolton was not happy with his work. Parbendra Singh had given evidence earlier about his dissatisfaction with the quality of the Applicant's work and he believed the two people involved were Marie Bolton and Parbendra Singh.

As to this I note that on page 32 of the transcript of the second hearing the Applicant himself said that he did not have any dispute with his employer, particularly the Computer Centre although apparently Parbendra Singh claimed that the Applicant did have such a dispute. I also note Marie Bolton's evidence on page 25 in answer to a question from Dr. Sharma when she said that the Applicant had not offended or antagonised staff at the Computer Centre. It is true that towards the end of the second hearing when putting forward his conspiracy theory the Applicant claimed that the situation was one of Miss Bolton and Parbendra Singh on one side and Satish Naidu and himself on the other side every time. This was also alleged by Mr. Naidu who told Dr. Sharma on page 26 of the transcript of the first hearing that he thought it would be fair to say that they did have a strained relationship. However I note that again on page 25 Miss Bolton enlarged on her earlier answer by saying, "While Parbendra was overseas and he (the Applicant) was working so hard I could hardly cope with dealing with his mail - it was going through like a house on fire so I was very happy for him because I was very sorry to see him having a problem saying he has not worked hard enough".

At the very end of his evidence the Applicant said that it would not be very difficult to change the audit trail and he contended that the portion of the audit trail in Oracle which contained the terminal I.D. was altered to point to him, to which the Chairman responded on page 48, "So it would be narrowed to a few people?" The following exchange then occurred:

Kumar: Only in the Computer Centre.

Chairman: Why would you in particular be chosen as a target? You said previously that there was no personal problem with the member of the staff, with Parbendra Singh, but nevertheless there was this personal attack, attempted attack on you by altering, doing a deletion and by making it point to you - it's not clear to me that we have really evidence of enough information for such an attempt. The Applicant then replied, "As I said two of us are a different force in the section but by nature Satish is a very calm person, most of the time he accepts whatever our manager says, he stays calm, but I was not like that because everytime he would talk about my right I used to go to the Director and see him and I told him about what I thought of Parbendra. And he has been continuously giving, although I have used all my energy, all my time to complete the task he used to give me and that's all ..... he has continuously given somehow poor reports to the Director for me."

COUNSEL'S SUBMISSIONS

The Applicant's first main submission is that the Committee failed to make a determination whether any of the charges had been proved beyond reasonable doubt and further failed to make a determination whether any of the charges constituted misconduct or gross misconduct. Accordingly it is submitted the decision of the Committee cannot be upheld.

Although this is literally true I do not accept this submission because from the record it is clear that the Committee fully appreciated that the findings it was required to make were to be findings beyond reasonable doubt. Thus on page 7 of the first hearing Dr. Sharma mentioned to Dr. Clayton that Dr. Clayton had come to the conclusion that it was established beyond reasonable doubt that the two offences were the result of reproduction on the part of the Applicant. He then asked him whether anyone had helped him to come to that conclusion or whether he had made it himself. Dr. Clayton replied: "This is a conclusion which jointly we gradually all came to as we looked at the evidence." In my judgment it is also clear from the expressions used by the Committee on the first page of their report when they said, "The Committee unanimously finds that Dalip Kumar Ram deleted University Computer Records without authorisation. The Committee also recommends the penalty of dismissal."

Then in the last paragraph of the report the Committee says "Given the nature of the offence, and the allegations made or implied by Mr. Ram about the members of the Administrative Computer Section, the Committee unanimously recommends the penalty of dismissal."

I have no hesitation in concluding that in expressing themselves thus the Committee was saying, albeit by imputation, that being unanimous they had made their findings beyond reasonable doubt and that they considered the Applicant's conduct to be gross by recommending the penalty of dismissal because of the nature of the offence and the allegations made by the Applicant about the members of the Administrative Computing Section.

It is then submitted by the Applicant that the Committee failed to give him a fair hearing in that one of the members of the Committee was not present throughout the investigations and therefore did not understand the nature of the charges and the evidence adduced during the hearing. This refers to the absence of Mr. Paula Kunabuli throughout the hearing. I do not accept this submission because first at the beginning of the proceedings the Chairman announced that Mr. Kunabuli was not present and that they had decided to proceed in his absence if there was no objection to doing so. He asked if there were any objections and the answer was "No". Then on page 21 of the first hearing the Chairman stated that Mr. Kunabuli had left and he asked whether there were any objections to continuing. Again the answer was "No". Finally I note that on page 2 of the Committee's report it is mentioned that Mr. Kunabuli arrived somewhat late, and had to leave early but he later obtained the transcript of the hearing. I am therefore not satisfied that because he did not attend the hearings he did not appreciate their nature. The Applicant cannot now complain at the absence of Mr. Kunabuli when it is clear from the record that he agreed to it. I therefore reject this submission.

Then it is argued that because of the technical nature of the evidence the Committee failed to appreciate the various ways and means by which the deletions could have been made. This is a very general assertion and there is no evidence to support it. Indeed my impression based on the various questions the Chairman and Dr. Sharma particularly asked is that the Committee did understand the technical nature of the evidence. Furthermore this submission appears to fly directly in the face of paragraph 9 of the Applicant's supplementary affidavit when he says, "That I was informed and verily believed that because of the technical nature of the alleged offence the persons investigating would all be with relevant expertise in the field of computer and since they were all colleagues it would be hard for them to return a report contrary to the finding of the staff conduct committee".

The implication I draw from that paragraph is that the Applicant knew that the members of the Committee were familiar with the operation of computers and what is now called in some quarters I believe, "computer talk". Lastly on this submission there was nothing to stop the Applicant at any time during the hearings questioning the knowledge of any of the members of the Committee and he failed to do so. I likewise therefore reject this submission.
 
The next three submissions are in a group and concern the finding of the Committee that the chain of evidence strongly pointed to the Applicant who had the motive and ability to make the deletions. First it is said that this finding cannot be substantiated because if the Applicant desired to improve the transcript of his sister's record he could have done so by simply updating the records. This could have been done simply by typing "C" in place of "D". Had the Applicant done this under no circumstances could it have been found out since only deletions were detectable. This appears to be a reference to Dr. John Clayton's evidence at page 7 of the first transcript when he said that there was a weakness in the strategy at that time of only recording deletes and Parbendra Singh's evidence at page 32 that at the time of the two events the audit trail was recording deletions only. In my opinion this submission is pure surmise but in any event the Committee held on page 4 of its report that an improved transcript could have been useful on other occasions apart from salary determination for his sister. Again this may have been oversight by the Applicant because the Committee mentioned his carelessness in not terminating the request (report page 4).

Then it is said that if the Applicant had desired to print the transcript he would have been stupid to leave the print request on the computer on the 17th of March leaving him open to questioning. This may be so but it would not be the first time that an offender left his fingerprints or other means of identification unintentionally and through forgetfulness in premises he had just burgled. All this means to me is that the Applicant was stupid in so acting but nevertheless the Committee found him guilty.

It may be also as is submitted that if the Applicant had the motive to delete the records he would not have readily admitted attempting to print the transcript on the 17th of March 1995. It is said he could have easily denied any knowledge.

Again this may be true but it would only be speculation to attempt to explain the Applicant's behaviour on the 17th of March 1995. In my judgment this is only one part of a large body of other evidence relating to the Applicant's behaviour at the time the deletions were made and I cannot accept this submission. 

It is then said that the Applicant's motive was not to delete the records but rather to find out whether a transcript could be printed without payment of fees and if so he said that he would then have requested the Academic Office to do him a favour by printing the transcript without immediate payment of fees. It is put to me that the later idea of trying to print was to find out if it could be done and then to inform the Academic Staff that it was possible.

I agree that the Committee could have accepted the Applicant's explanation for this but it did not do so and was entitled considering all the evidence not to believe the Applicant.

The Applicant admitted that he knew that only the Academic Office could print official transcripts and considering the fact that at the time of these events he had been employed for just 19 months from 9th August 1993 and on his own statement did not get on with Parbendra Singh or Marie Bolton and had been criticised and received unfavourable reports on his work, I would have thought it only common sense for him to inform his superiors of what he was doing and why in case he would be given further unfavourable reports if his action were innocent.

The Committee clearly rejected this explanation and in my judgment was entitled to do so.

They say on page 4 of their report, "However, the attempt to print showed Mr. Ram's interests in the transcript and an improper attitude concerning the use of the students record system, and a certain amount of carelessness in not terminating the print request". These findings were clearly open on the evidence and may well have been one of the reasons why the Committee found the Applicant guilty. I have no doubt that the Applicant knew his actions would better his sister's records by excluding any bad results and which would only leave good results favourable to his sister remaining. This is supported by the Committee's comment which I have previously mentioned on page 4 of the report that an improved transcript could have been useful on other occasions.

This comment could also be applied to the last submission on the Applicant's alleged motive that the deletion of the records of his sister would not have helped her in any way as she had completed her Certificate in Population Studies which could only have been obtained by completing studies in eight courses. It is said this would be common knowledge to any one knowing about this course.

I reject this submission because it is obvious speculation and there was no evidence before the Committee as to this. The Applicant could not complain if the Committee did not consider this submission if nothing was ever said to it about it.

Finally in his reply to the Respondent's submission counsel for the Applicant states that the findings of the Staff Conduct Committee could not be substantiated from the evidence of the witnesses tendered during the hearing in that all the witnesses said there was a possibility of deletions being made by other means and persons than the Applicant.

The Committee acknowledged this possibility and it is true that most of the evidence against the Applicant was circumstantial. In Barca v. The Queen (1975) 133 CLR 82 the High Court of Australia held that where the case against an accused person rests mainly upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than guilt.

Taking the evidence as a whole, which I am satisfied the Committee did, in my judgment it was entirely open for it to find that notwithstanding the possibilities the circumstances relating to the Applicant's conduct at the relevant times were inconsistent with any reasonable hypothesis other than his guilt.

Again I refer to the evidence mentioned earlier of Dr. John Clayton on page 15 of the first transcript concerning the second series of deletions on the Friday after the Applicant and all others in the Computer Centre had been given new passwords. The Committee was entitled to agree, as it obviously did, with Dr. Clayton's comment that this was a crucial fact linking the Applicant with the deletions. I accordingly also reject this submission. There remains the only other question relevant to this Judicial Review of whether the penalty imposed on the Applicant was altogether excessive and out of proportion to the offences he was found to have committed. Strangely enough no submissions were made to me by either party on this question but it is only fair to the Applicant that I should consider it. It is a heavy punishment for a person such as the Applicant to be dismissed from his employment after less than 2 years. He appears to be a person of some ability in the computer field and no doubt was to say the least very disappointed by the Committee's decision. If it was excessive then on the authority of R. v. Barnsley Metropolitan Borough Council, ex parte Hook (1976) 3 ALL E.R. 452 I would be entitled to quash the Committee's decision. The evidence does not satisfy me that I should. It is abundantly clear from its report that the Committee took a very serious view of the Applicant's conduct and I see no reason for disagreeing with them.

I have given this question much thought but in the end regret that I am unable to justify my referring the question of penalty back to the Staff Conduct Committee for reconsideration on this question.

DECISION

It follows that I must reject this application for Judicial Review but I make no order for costs.

(JOHN E. BYRNE)
J U D G E

Legislation and cases referred to in Judgment:

Ordinance for the Discipline of Academic and Comparable Administrative, Library and Technical Staff (1986).
Barca v. The Queen (1975) 133 CLR 82.
Council of Civil Service Unions and others v. Minister for the Civil Service (1984) 3 ALL E.R. 395.
R. v. Barnsley Metropolitan Borough Council, ex parte Hook (1976) 3 ALL E.R. 452.

The following additional cases were referred to in argument:

Glynn v. Keel University (1971) 1 WLR 487.
R. v. University of the South Pacific, ex parte Malakai Tuiulopona [1985] 31 FLR 81.

HBJ0015J.95S