The State
v.
Public Service Commission
Michael Raman
s/o Chinnaiya
Mr. T. Fa for the Applicant
Mr. D. Singh for the Respondent
JUDGMENT
This application for judicial review may be considered a sequel to an earlier application by pplicant in Judicial Revl Review No. 13 of 1994 in which the applicant successfully challenged his 'summary dismissal' as a school teacher.
Subsequent to that challenge the Public Service Commission ('PSC') appointed, pursuant to Regulation 44(1) of the Public Service Commission (Constitution) Regulation 1990 ('the Regulations'), a Disciplinary Tribunal to "hear the evidence and find the facts" and "make a report to the PSC within 28 days".
Thereafter the PSC was required in terms of Regulation 50(1) of 'the Reions' to consider: <"the report submitted by (the) disciplinary tribunal (and if it) is of the opinion that:
(a) &nbssp; &nsp; the officer shbuld onerateerated, the Commission shall exonerate the officer;
;><
(b) the officer should se diedissed the Commission shall dismiss the officer; or
(c) &nbssp; some penalty other than dian dismissal shoulshould be imposed the Commission may impose any one or more of the penalties
specified in paragraphs (b) to (f) of sub regulation (1) of Regulation 51."
By letter dated the lang=EN-GB style="font-family: Times New Roman">8 August 1996
the PSC informed the applicant that:
"Following consideration of the Disciplinary Tribunal's Report, the Public Service Commishas decided that the penaltenalty of
dismissal imposed upon you by the Commission will remain unchanged."
In the place, it is at least doubtful that PSC's letter complies with the clee clear requirement of Regulation 50(2) that, besides the penalty, it should '... inform the officer of its findings', and secondly, the letter is couched in the past tense, and clearly refers to an earlier penalty which PSC had imposed on the applicant and which penalty was quashed by this Court in its ruling in Judicial Review No. 13 of 1994 (op. cit).
If I may say e 'reference' is unfortunate in that it is open to the suggestion that after fter the disciplinary tribunal hearing, the PSC approached the question of what penalty to impose on the applicant with a 'closed mind' and not as though it had
considered and exed its diss discretion afresh under Regulation 50(1) as it was required to do.
Needless to say t>PSC's discretion under Regulation 41(6) which it had earlier exercised, is neit neither identical to or the same as that under Regulation 50(1) albeit that they are both concerned with what penalty to impose on a delinquent officer.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Be that asay no challenge has been mounted on the basis of pre-determination or failure to exercise aise a discretion, and nothing
more need be said on that score.
Instead, in this application, the main ground on which the applicant seeks relief is that:
"The Public Service ssion did not hear the applicant in breach of the rule of Natural Justice.">
This ground is further amplified unsel's written submission where he writes:
"The applicant is saying that before the Commission decided on dismissing him in accordanth the first option given tven to it
under (Regulation 51) he should have been heard. The plaintiff and his counsel should have been called upon to address the Commission
on what an appropriate penalty should be instead of the Commission deciding the matter on dismissal."
In this regard the PSC through its Director of Personnel has deposed:
"... there is no requir that the applicant be heard for the purposes of mitigation pursuant to Regulation 51 of ('of ('the Regulations')."
This rther amplified in the short submission of State Counsel who writes:
"There is no requirement under Regulation 51(1) of the PuService Commission (Constitution) Regulation 1990 for the athe applicant
to be heard before any of the penalties laid in paragraphs (a) to (f) may be imposed by the Commission. The applicant was heard when
the disciplinary proceedings were brought against him."
In this latter regard Regulation 46(1) of 'the Regulations' which is applicable "... to the hearing by a disciplinary tribunal of a charge of an alleged disciplinary offence", gives the applicant a personal right to be heard in his defence to the charge and 'to cross-examine the witnesses called in support of the case against him'.
In neither instance is the applicant given a 'right to be heard' as to the penalty that might be imposed on him, nor, given the nature of the proceedings and the functions of the Disciplinary Tribunal [See: Regulations 44(1) and 48(1)] could such a 'right to be heard' arise.
In other words it was never the fun of the Disciplinary Tribunal to consider or recommend to the PSC any particarticular penalty and therefore no submissions or representations in that regard could have been properly called for or
entertained from the applicant.
State Cous submission in this regarregard is plainly misconceived in law and contrary to the affidavit evidence of what occurred before the
disciplinary tribunal.
I turn then to consider Regulation 51(1)which provides:
"Any one or more of the following penalties may be imposed by the Commission by (sic) disciplinary proceedings brought against
any officer in respect of misconduct or indiscipline:
(a) p;&nbbsp;& bsp; dismisismissal, that is, termination of appf appointment;
(b) &bsp; nbsp; p; &nnbp; reduction in r in rank, that is, removal to another grade with an immediate reduction in salary;
(c) reduction of remunerationa
(d) &nbbsp;& &nsp; nsp; no merit increase iarsalary for a specified period;
<(e)&n(e) &bsp; ;&nbssp;&nbp; fsp; fine not exng $i00;
(f) &nnbsp; &bsp;&bsp;&nbs; reprimanot;>
<1"> Quite plainly the Regulation provides a list of si(6) penalties in descending order of seriousness, rangiranging from the most serious, '(a) dismissal', through '(c) reduction of remuneration', to the least serious, '(f) reprimand'. Furthermore PSC is given a wide discretion in deciding which is the appropriate penalty to impose in any particular case.
In the applicant's case the P> has clearly imposed the most serious penalty available to it.
In this instance the applicant as a result of the PSC's den not only lost his employment of 28 years, but more more particularly, the applicant deposes:
"I am still on the pension scand this dismissal simply means that I lose out on everything I have worked for in my life.life."
That this would e result of the applicant's dismissal is not denied nor indeed can it be doubted that the athe applicant has been
severely punished for his misconduct.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Having said t accept at onct once that 'the Regulations' nowhere provides for a hearing before any penalty is imposed by the PSC. But that cannot and does not conclude the matter for '... the justice of the common law will supply the omission of the legislature' [per Byles J. in Cooper v. Wandsworth District (1863) L.T. 278].
More recently the principle was iterated by Lord Guest in Wiseman v Borneman (1971) A.C. 297 when his Lordship said at p.310:
"It is reasonably clear on the authorities that where a statutory tribunal has been set up to decinal question affecting the
the parties rights and duties, if the statute is, silent on the question, the courts will imply into the statutory provision a rule
that the principles of natural justice should be applied. This implication will be made upon the basis that Parliament is not to
be presumed to take away parties rights without giving them an opportunity of being heard in their interest. In other words, Parliament
is not to be presumed to act unfairly."
A fortiori where the parti decision has the potential to vitally and detrimentally afly affect a man's career, his immediate livelihood and
future pension rights.
I am fortified in my view by the recent observations of the Fiji Court of Appeal in Permanent Secretary for Education v. Epeli Lagiloa Civil Appeal No. 38 of 1996 delivered on 28th November, 1997 (unreported) where the Court said in relation to 'the Regulations' at p.14:
"In our opinion, there can be no doubt that, upon the proper ruction of the Regulations, the rules of natural justice apce apply
in relation to the exercise by the Commission of at least some of its powers under Regulation 41. It must be remembered that it is
setting in train a procedure whereby a member of the service may be found to be guilty of a major offence and punished accordingly."
More relevantly for present purposes, the said of the PSC at p.15:
"... it had a second task which was to determine what penalty should be imposed. Again thpondent was not given an opan opportunity
of being heard ..."
and lastly at p.16 where the Court saspan>
"In our opinion the Commission ... was bound to give the respondent an opportunity of being heard both on the question whether or not the charge
has been established and on the question of penalty. The words to the effect that the Commission was bound to afford the respondent an opportunity of being heard are not to be found,
at least expressly, in the regulation. But in accordance with the principles expounded by the judges ... the law required the Commission
to administer its statute on the basis that the rules of natural justice applied."
(my underlining)
In this case the applicant was charged with two offences based upon allegations of improper conduconduct in that he had made statements and suggestions with sexual undertones to
two female students in circumstances that State Counsel in Judicial Review 13 of 1994 described as: 'importuning a young female student'. There can be no doubting the seriousness of the applicant's misconduct having regard to his position of authority and trust which
was akin to being in a relationship of 'loco parentis'.
There o suggestion however, that the applicant had similarly misconducted himself in the past t or either exposed himself or attempted to touch or had actually indecently assaulted the students. Was then his verbal misconduct deserving of the maximum punishment available? or was the penalty imposed by the PSC (and its inevitable consequence) unduly harsh and excessive? and in either event, ought the applicant not to be heard before the penalty was imposed? To this last question there can be but one answer:
'Yes'!
In this latter regard the applicant alsoses:
"If the Commission had heard me or my Counsel in mitigation, we could have at least pleaded that I be allowed to retire as I
was eligible for retirement from 1st July, 1995."
In similar vein the learned author of Wade on 'Administrativ' (4th edition) wri) writes at p.455:
"... in the case of a discretionary administrative decision, such as the dismissal ofacher ..., hearing his case case will often
soften the heart of the authority and alter their decision, even though it is clear from the outset that punitive action would be
justified. This is the essence of good and considerate administration, and the law should take care to preserve it."
As for the severity of the penalty imposed on the applicant, in R. v. Barnsley M> ex-parte Hook (1976) 3 All E.R. 452 Lord Denning M.R. in quashing the decision of the Council revoking the applicant's licence to erect a market stall because he had urinated in a side street said, at pp. 456/457:
"Now, there are old cases which show that the Court can interfere by certiorari if a punishment is altogether excessive and out
of proportion to the occasion ... It is quite wrong that the corporation should inflict on him the grave penalty of depriving him
of his livelihood ... He is a man of good character, and ought not to be penalised thus. On that ground alone, ... the decision of
the corporation cannot stand."
In similar vein Sir John Pennycuick said at p.461:
"It seems to me that the isolated and trivial incident at the end of a working day is manifestly not a good cause justifying
the disproportionately drastic step of depriving Mr. Hook of his licence and indirectly of his livelihood. I would base my judgment
in part on that ground."
For the foregoing reasons the application succeeds. Certiorari shall issue to quash thesion of the PSC cont contained in its letter of 8th August 1996 and the PSC is directed in accordance with this judgment to consider and determine afresh the penalty (if any) that it considers appropriate to the applicant's misconduct.
D.V. Fatiaki
JUDGE
At Suva
11th February, 1998
Hbj0031j.96s
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