IN THE MATTER of an Application by DIVENDRA BIJAY
(f/n Ram Charan) of Raralevu, Nausori
for leave to apply for Judicial Review
under Order 53 of the High Court Rules.
AND IN THE MATTER of the Decision of
the PUBLIC SERVICE COMMISSION
made on the 5th day of February 1997
AND IN THE MATTER of the Public Service Act, Cap.74
and the Public Service Commission (Constitution) Regulations 1990
AND IN THE MATTER of alleged breaches of
the principles of natural justice.
BETWEEN:
nter>DIVENDRA BIJAY
s/o Ram Charan
Applicant
AND:
PERMANENT SECRETARY FOR EDUCATION,
WOMEN & CULTURE
1st Respondent
AND:
ATTORNEY-GENERAL OF FIJI
2nd Respondent
Mr. A. K. Singh for the Applicant
Mr. S. K. Baiju for the Respon
DECISION
(Application for leave to apply for Judicial Review and for a stay)
This is an application by DIVENDRA BIJAY (the "applicant") for leave to apply for Judicial Review under Or.53 r 3 of the High Court Rules 1988 and for an order that the grant of leave shall
operate as a stay of proceedings to which the application relates including "stay of the decision of the Permanent Secretary for Education Women and Culture" (the "Respondents").
The applicant was on February 1997 formally charged pursuant to Regulation 41(1) of the Public Service (Constitution) Regulations,
1990 (the "Regulations") for committing a major offence under Regulation 36. The charge reads as follows (annexure I of Applicant's affidavit):
THAT you, Mr Divendra Bijay (TPF 55269), whilst employed by the Ministry of Education, Women and Culture, as a Teacher (TE08) at Korociriciri
Indian School, did commit a disciplinary offence within the meaning of Regulation 36(t) of the Public Service Commission (Constitution)
Regulations, 1990 in that you entered into a romantic and sexual relationship with one Miss Rolini Lata Prasad (f/n Gaya Prasad),
formerly a student of your school and presently a student at Suva Sangam High School, commencing with a romantic liaison with her
when she was a Form 3 student at Vunimono High School and leading to you having sexual intercourse with her when she came to stay
with you and your mother last year, your conduct being improper which is likely to bring disrepute to the Public Service.
In accordance with Regulation 41(2) of the Public Service Commission (Constitution) Regulations, 1990 you are required to state in
writing within fourteen days from the date of receipt of this memorandum whether you admit or deny the charge. You may also provide
in writing such explanation as you think will enable proper consideration to be given to the charge laid against you.
I decided to hear the application inter partes as provided under Or 53 r 3(3)(ii).
The applicant filed an Affidavit in Support and the Respondents filed one opposing leave and stay.
Both counsel made written and oral submissions.
Background
The applicant is a school teacher. He graduated from Lautoka Teachers College on 28 November 1991 and was posted to Korociriciri Indian
School, Nausori on 20 January 1992. At that time he was teaching Class 5 and Rolini Lata (referred to as "Rolini") was a student in class 6.
Subsequently during his teaching career they fell in love with each other. I do not propose to go into details as they are all contained
in the applicant's affidavit, suffice it to say that eventually after a lot of struggle and opposition from Rolini's parents consent
for them to get married had been given by the time this application came on for hearing.
The said Charge was served on the applicant on 5 February 1997. The next day he was informed in writing of his interdiction in the
following terms:
Pursuant to the disciplinary charge laid against you by the Permanent Secretary for Education, Women & Culture vide his memorandum
CPF 55269K of 05/02/97 Public Service Commissioner Hector R Hatch has acting in accordance with the powers delegated to him by the
Public Service Commission decided that you should be and you are hereby interdicted from the service forthwith without salary in
accordance with Regulation 42 of the Public Service Commission (Constitution) Regulations, 1990.
During the period of your interdiction you shall not have access to any official premises and shall not remove, destroy or add to,
or cause to be removed, destroyed or added to, any official document, instrument or matter.
Whilst under interdiction you shall not leave Fiji without the permission of the Public Service Commission.
The interdiction will remain in force throughout the time it takes to conclude the determination of the charge laid against you.
On 7 February, Mr. A. Singh for the applicant sent a facsimile stating, inter alia, that an application for Judicial Review is being
prepared and that the said Charge is defective. He also complained that the applicant has not been paid his wages which was already
due.
On 6 March 1997 in reply to the applicant's counsel's request to reconsider the decision to interdict "without salary" the first Respondent replied that it "has not been acceded to by Commissioner Hector R Hatch" on the ground that it would be inappropriate for him to do so as the matter is presently before the High Court.
The applicant was charged by Police for the offence of defilement but because of insufficient evidence, on the direction of Director
of Public Prosecutions, the charge was withdrawn and the learned Magistrate acquitted the applicant under s.201 of the Criminal Procedure Code.
After his acquittal on 25 March, Rolini was given consent to marry and Mr. Singh says that they are about to get married.
As a result of this sudden interdiction without pay the applicant says that he is facing a lot of problems. Unless reinstated he and
his family will be homeless as he was the sole breadwinner. His parents together with his handicapped sister were dependent on his
income for rent payments. He has no other source of income. The applicant's commitments include loan of $2535.00 from Fiji Teacher's
Union, Native Land Trust bill of $717.50, Telecom Fiji Limited bill of $248.00 and payment to Courts; he has also purchased a block
of land for $10,680 and paid $1600.00 as a deposit but he is required to pay $150.00 per month for the balance purchase price.
Relief sought
The relief sought are set out in the applicant's application. These include (a) an order of certiorari to remove the said decision
of the first Respondent made on 6 February 1997 into this Court, (a) to quash the decision of 6 February 1997 by the first Respondent
interdicting the applicant without any salary, (c) an order reinstating the applicant and (d) a stay of proceedings until the determination
of this application or until this Court otherwise orders.
Respondents' Grounds of opposition
The Respondents oppose the application on the grounds that: (a) the application is premature; there is no formal decision which may
be susceptible for judicial review, (b) there are other avenues for the applicant to address the grievance, (c) the applicant has
failed to show in his affidavit the reasons for illegality, unreasonableness or procedural impropriety and (d) opposition to stay
is because it will be detrimental to the good administration of the Department of Education.
Applicant's case
Mr. A. Singh contends that the first Respondent on the direction of the Public Service Commission (the "Commission") interdicted the applicant from service without pay and that this is an administrative decision which is amenable to Judicial Review
by the Courts under Order 53.
He says that this is a proper case for the grant of leave as it is a decision which has an "impact" on the applicant and it relates to his livelihood. He says that the exercise of power was unfair on the applicant. He further submits
that the Respondents have breached the provisions of the Fiji Constitution and section 123 of the Criminal Procedure Code in that he is being "punished twice for the same alleged offence".
Consideration of leave application
Availability of Judicial Review
Under the procedure known as the "Application for Judicial Review" a person is enabled to challenge an administrative act or omission by applying to the High Court either for one of the prerogative
Orders of mandamus, prohibition or certiorari, or in appropriate circumstances, a declaration or an injunction or damages.
In this case there is no doubt that the Applicant has "sufficient interest" in the matter to which this application relates (Or 50 r 3(5)) to entitle him to apply for a judicial review of the first Respondent's
decision.
Leave required
Leave of the Court must be obtained before any substantive application is made for judicial review (Or 53 r 3(1)).
Here applicant has identified the decision that is being complained of and the relief that he is seeking.
On an application for leave, apart from (a) the "time limit" within which an application should be made and (b) the applicant showing that he has "sufficient interest", it has also to be shown (c) that there is an arguable case and the reason for the need for it has been stated by LORD DIPLOCK in the House of Lords case of IRC v NATIONAL FEDERATION OF SELF EMPLOYED and SMALL BUSINESSES [1981] UKHL 2; (1982) AC 617 at 642 to 643 thus:
"The need for leave to start proceedings for remedies in public law is not new. It applied previously to applications for prerogative
orders, though not to civil actions for injunctions or declarations. Its purpose is to prevent the time of the Court being wasted
by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers
and authorities could be left as to whether they could safely proceed with administrative action while proceedings for judicial review
of it were actually pending even though misconceived." [1982] AC 642H to 643A) and
"The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated
if the Court were to go into the matter in any depth at that stage. If on a quick perusal of the material then available, the Court thinks that it discloses what might turn out to be an arguable case in favour of granting the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that
relief."
(underlining mine for emphasis)
I have given serious consideration to the forceful submissions by both counsel because of the importance of the issue to the parties.
By the end of the hearing I had reached a clear view as to how I ought to rule. I am of the firm view that there is an arguable case.
I therefore hold that this is a proper case in which leave ought to be granted.
Meaning of Decision
Because Mr. Baiju has strongly argued that this was not a final 'decision' which fell within the purview of Or 53 and therefore not amenable to judicial review, I shall consider this aspect which is very
much pertinent to the application for leave.
On the affidavit evidence before me I find this is to be a clear cut case of a decision having been made by an administrative tribunal
to interdict the applicant without pay forthwith and without having given him the opportunity of being heard. Not only that, the
Respondents had even deprived him of the salary he had already earned at the time of interdiction. What could be the reason for that
has not been explained to this day as if to say inflicting interdiction was not bad enough that they had to ruin him further by depriving
him of his already earned salary.
Subject to what I say hereafter, I am not required on the application for leave to decide on the substantive action, but it appears
from the affidavit evidence that the Respondents (including the "Commission") decided to interdict the applicant because they thought that the applicant's alleged conduct was so disgraceful that he should be
dealt with in the manner they did "in the public interest".
Mr. Baiju submits, inter alia, that the interdiction is "not a final decision" to make it susceptible to judicial review. He says that "the decision to interdict applicant is merely a step in between the process leading to a final decision". In support of that he refers to Regulation 42(1)(a)(b) which states:
"Where there have been instituted against an officer:
(a) disciplinary proceedings in respect of a major offence; or
(b) criminal proceedings,
and where the Commission is of the opinion that the public interest requires that that officer should forthwith cease to perform the
functions of this office, the Commission shall interdict him from such performance."
On the authorities, it is my view that this regulation merely gives the Public Service Commission (the "Commission") the power to interdict in the "public interest". There is no procedure laid down as to how the Commission has to go about before interdicting.
I would like to observe at this stage that although the interdiction memorandum came from the first Respondent and not from the Commission
as required by Reg. 42 it was nevertheless the decision of the Commission as a member of the Commission directed this to be done.
It is my view that the 'decision' does not have to be "final" in the sense stated by Mr. Baiju. Without in any way giving the semblance of deciding on the substantive matter it appears that in
this case it was a decision of such a grave nature with drastic consequences to the applicant that it was incumbent on the first
Respondent and the Commission not to throw overboard the principles of natural justice although the procedure to be followed when
interdiction is contemplated is not spelt out in Reg. 42. (BIRSS v SECRETARY FOR JUSTICE [1984] NZCA 24; (1984) 1 NZLR 513).
In support of his argument, particularly as to decision lacking in finality, Mr. Baiju relied completely on EDELSTEN v HEALTH INSURANCE COMMISSION AND OTHERS (1990, 96 ALR 673) which is a decision of the Federal Court of Australia. There NORTHROP and LOCKHART JJ at 681 said that "the question of what is a reviewable decision under the Judicial Review Act has been considered in many cases by this court
both at first instance and on appeal and most recently by the High Court in BOND which is an authoritative exposition of the essential nature of such a decision".
I find that EDELSTEN has no bearing on the facts of this case. The decision there was based upon the specific provision of the Administrative Decisions
(Judicial Review Act 1977 (the ADJR Act) and we do not have such comparable provision under our High Court Rules. In AUSTRALIAN BROADCASTING TRIBUNAL v BOND and OTHERS [1990] HCA 33; 94 ALR 11, MASON CJ dealt extensively with the meaning of the word "decision" at p.22 et seq. and he considered it in the light of the legislative provisions pertaining to the case before the Court.
Nowhere in Order 53 Rules is there a mention of 'final' decision. The Rules provide for a review of administrative action relating to "judgment, order, conviction or other proceedings" (Or 53 r3(5) or "judgment order, decision or other proceedings" (Or 53 r.3(2)(a)(i); and the grant of relief is not confined to granting of relief in respect of ultimate decisions. MASON CJ at p. 23 said:
"The jurisdiction extends to questions in issue in pending proceedings: cf FORSTER v JODODEX AUST PTY LTD [1972] HCA 61; [1972] 127 CLR 421, per Gibbs J at 438. The existence of this jurisdiction, which antedated the ADJR Act, suggests that the concept of a reviewable
decision is not limited to a final decision disposing of the controversy between the parties". (underlining mine for emphasis)
He goes on to say at p.23:
"..... a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not
always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling
for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not
ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that
the decision, though an intermediate decision, might accordingly be described as a decision under an enactment".
The above-quoted passage by Mr. Baiju from MASON CJ's judgment has no application and relevance to the facts and circumstances of
this case as I am not concerned with any statutory provisions here.
That the decision in the case before me is reviewable, is wholly supported by the said New Zealand Court of Appeal decision in BIRSS (supra).
I therefore reject Mr. Baiju's argument that the interdiction was merely a 'step along the way' and is not final and therefore not reviewable at this stage, that is, it is premature, has no merit whatsoever. What more finality
one needs, if one is needed, than for the Commission to interdict without pay. The applicant is doomed for ever and I cannot possibly
imagine him ever being reinstated with this kind of decision based presumably on the fact that he fell in love with a student and
allegedly defiled her from which he has, subsequent to interdiction, been acquitted by the Nausori Magistrates Court.
For these reasons I find that there are no merits in the grounds of opposition advanced by the learned counsel for the Respondents
to enable me to refuse leave.
The relevant legal principles
I do not want to give the impression that I am dealing with the substantive issue in this application for leave, but I cannot avoid
touching on it because of what has been said in BRISS (supra) in a similar situation involving suspension which, on appeal, was held
to be invalid.
I have already stated above the circumstances leading to the interdiction. The point to note is that right on the heels, to wit, the
next day, after serving the disciplinary Charge, the memorandum interdicting is handed to the applicant by the first Respondent.
The procedure relating to charging an officer for a disciplinary offence is set out in Reg. 41(1). He is, inter alia, given time,
in this case 14 days, to reply "if he so wishes". Without waiting for a reply the interdiction is imposed on him possibly because Reg. 2 allows that to be done. Be that as it may,
on the authority of BIRSS (supra), in appropriate cases, "rules of natural justice and fairness prima facie applied to suspension from Office without salary" (underlining mine for emphasis). In fact, in my view the principles involved on the issue before me is to be found in this case.
In view of what I propose to say, in the light of BIRSS, it appears that an opportunity for hearing must be given when contemplating
interdiction without pay in appropriate cases. Because, I base my decision to grant leave on BIRSS, I state below the headnote to
that case to complete the picture. The headnote reads:
"The appellant was a senior probation officer employed by the Department of Justice. In May 1982 he was notified by the Secretary
for Justice of various charges which had been made against him under s 58 of the State Services Act 1962. Nineteen months later without
any immediate prior notice the appellant received a notice from the Secretary for Justice directing that he was to be suspended from
duty with effect from the date of receipt of the notice. The suspension was with pay until the expiry of the appellant's period of
annual leave and then to be without pay. The appellant sought judicial review of the Secretary for Justice's decision. In the High
Court his application for review was dismissed and he appealed.
Held: The State Services Act contained no provisions which specified the procedure to be observed in reaching a decision to suspend.
In the absence of any clear expression of a contrary legislative intent, the rules of natural justice and fairness prima facie applied
to suspension from office without salary. What natural justice required in a particular case must be determined in the light of the facts of that case. It did not necessarily
follow that notice and an opportunity to be heard must be given in every case where suspension was in contemplation. The nature of
the charge and the exigencies of the moment might perhaps call for immediate action. But, in this case, having worked for 19 months
after the charges had first been made against him, the appellant was entitled to notice that suspension was under consideration.
He should also have been given an opportunity to submit arguments against the contemplated suspension. The Secretary of Justice,
as a senior officer entrusted with the power of suspension, must be prepared to consider and weigh carefully arguments which the
officer at risk might raise against the exercise of the power. The appeal was allowed and the suspension of the appellant was declared
invalid (see p 517 line 34, p 522 line 37, p 523 line 22)." (underlining mine for emphasis)
The rationale of the decision in BIRSS is relevant here. Whereas in BIRSS the appellant continued to be employed for nineteen months after charges were laid against him
and then notice suspending him was given, here interdiction took place a day after laying the Charge and while police were still
inquiring into the applicant's involvement with Rolini with the intention of charging him. In this case the question is whether "the nature of the charge and the exigencies of the moment" (the words of Richardson J in Birss at p.517) called for immediate action. That can only be decided on the hearing of the application for judicial review after
the granting of leave herein.
Regulation 41 governs the institution and consideration of disciplinary charges, but the provisions governing "interdiction" are short. Talking of suspension and natural justice, RICHARDSON J in BIRSS at p.516 said:
"In this case it is suspension, not dismissal, which is at stake. How should it be characterised in the statutory context? In
Vaillancourt v The King [1927] Exch CR 21, 25 Audette J observed: "What does suspension mean, if not suspension of work which
carries with it suspension of the right to wages?... Does not this amount to dismissal?" And more recently in John v Rees [1970] Ch 345, 397 Megarry J expressed the same view: "...suspension is merely expulsion pro tanto. Each is penal, and each deprives the member
concerned of the enjoyment of his rights of membership or office." While the equating of suspension and dismissal may be debated
the observations serve to emphasise two important features that suspension and dismissal have in common: in each case the officer
is deprived of his entitlement to perform his duties in the Public Service so long as the suspension or dismissal stands; and in
each case (where suspension is without salary) the officer is deprived of his entitlement to salary until the charges against him
are determined. In those major respects a decision to suspend without salary inevitably and adversely affects the rights and reasonable
expectations of a permanent officer of the Public Service."
The fact that Reg. 42 is couched as it is, does not exclude or modify the rules of natural justice and it is so stated by RICHARDSON J in BIRSS at p.517 thus:
"On the general issue in Dixon v Commonwealth [1981] FCA 77; (1918) 55 FLR 34, 44, the Federal Court of Australia (Bowen CJ, Deane and Kelly JJ) took the view that the fact that the relevant statutory power
is in the form of a power to suspend pending inquiry does not import any general exclusion or modification of the rules of natural
justice which are prima facie applicable to a statutory power adversely to affect the rights, property or legitimate expectations
of another. Like the State Services Act 1962, the Act there contained no provisions specifying the procedure to be observed in reaching
a decision to suspend. Having regard to the adverse effects on the officer - loss of entitlement to perform his duties and of salary
- and to the likelihood that it would have profound emotional, social and financial effects on him, in the absence of any clear legislative
intent to the contrary the rules were applicable in respect of that decision."
For these reasons, it seems that in the absence of any clear expression in Regulation 42, the rules of natural justice and fairness
apply to interdiction from teaching without salary. I cannot see how the applicant can be deprived of the opportunity to challenge
the quality of the decision in this case under Order 53. The locus classicus on this aspect of judicial review is the judgment of
LORD GREENE M.R. in ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION [1947] EWCA Civ 1; (1948) 1 K.B. 223. That case involved the question of exercise of discretion and the Master of Rolls stated the criteria affecting decision thus:
"the Court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account
matters which it ought not to take into account, or conversely, has refused to take into account."
He then went on to observe:
"...once that question is answered in favour of the local authority, it may still be possible to say that, although the local
authority have kept, within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion
so unreasonable that no reasonable authority could ever have come to it. In such a case, again I think the Court can interfere."
In this case even after the applicant's counsel wrote to the first Respondent regarding 'reinstating' him and about payment of full salary the reply was negative because they said that the matter is before the Court. In the meantime
the applicant, to use the words of RICHARDSON J at p.517, "loses his right to work in his chosen career, he suffers the stigma of suspension from duties and unless and until the Commission
rules otherwise he is deprived of the financial support provided by his salary."
To conclude, for the above reasons leave to apply for judicial review is granted. In an appropriate case, it seems the interdiction
could be held invalid on the authority of BRISS but because the Respondents might have evidence which could turn the scales in their
favour and also because of uncertainty in my mind whether, at this stage, declaring the interdiction invalid is possible under the
Rules, I have decided not to grant the stay as prayed but I order that there be a speedy hearing. I am prepared to give an early
date for it. Before departing, I would observe at this stage, that with developments such as the acquittal of the applicant and his
impending marriage to Rolini almost on the eve of the hearing of this application for leave, the Respondents may not have been able
to give serious consideration to the decision in the light of these changed circumstances as far as the applicant is concerned. For
that reason I grant liberty to the parties to apply to Court generally for directions.
The costs are to be costs in the cause.
D. Pathik
Judge
At Suva
15 April 1997
Hbj0005.97s
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