RUSIATICAKIBAU
Plaintiff
- and -
PUBLIC SERVICE COMMISSION
OF REPUBLIC OF FIJI
THE ATTORNEY GENERAL OF FIJI
Defendants
Mr. R.P. Singh for the Plaintiff
Mr. S. Sharma for the Defendants
JUDGMENT
By letter signed by the Acting Secretary of the Public Service Commission and dated sup>th February 1997<1997, the plaintiff was `discharged from the Prison Service in accordance with Section 15(1)(c) of the Prisons Act Cap.86' and by letter dated 9th July 1997 the Public Service Commission purported to dismiss the plaintiff’s appeal against its (the PSC’s) earlier decision discharging him.
By Writ of Summons dated the 29th, the plaintiff challenges the lawfulness ness of his discharge on various grounds including ultra vires exercise of powers, denial of procedural fairness and natural justice and `non-adherence to the provisions of the Act’ and the plaintiff claims damages for wrongful dismissal.
In light of the above `grounds’ advanced by the plaintiff, defence counsel not unnaturallught the dismissal of the cthe claim as an abuse of process in that `the plaintiff ought to have pursued its relief by way of judicial review rather than by way of an action begun by Writ of Summons’.
Having heard argument on the application I rejected it on 20th Nor 1997 and ordered that the defendants file a Stau>Statement of Defence and the action follow its normal course thereafter. Two (2) years elapsed before the action was entered for trial and the case was eventually heard on 17th May 2000.
On the indication of counsels that the facts were not in dispute and with a view to expediting the trial the Court invoked its powers
under Order 38 r.2 of the High Court Rules 1988 to receive the witnesses evidence-in-chief by way of affidavit with liberty to cross-examine as counsels saw fit.
The witnesses were then called and each identified and produced his affidavit as an exhibit. The plaintiff produced his affidavit
dated 17th May 2000 (Exhibit P-1) and closed his case after defence counsel indicated that he did not wish to cross-examine him. The defence then called two (2) witnesses, the Commissioner of Prisons (Exhibit D-1), and an Acting Principal Administrative Officer in the Public Service Commission (Exhibit D-2). Both defence witnesses were cross-examined by plaintiff’s counsel.
The brief facts of the case were that prior to his discharge from the Prison Service the plaintiff waloyed as a subordinate offi officer
on a five (5) yearly renewable contract which was last renewed on 5th November 1995 and due to expire in November 2000. His career in the service can best be described as being a `chequered’ one in which he served in various prisons around the country and on no less than two prior occasions in November 1992 and April 1994, decisions were taken by his supervisors to discharge him from the service owing to a deterioration in his work performance and indiscipline.
On neither occasion was the plaintiff discharged for one reason or another and he continued to be re-engaged in the prison service.
Despite the numerous written warnings he received throughout his service, and his re-engagement in November the deterioration in t in the plaintiff’s work performance and indiscipline continued, and on 5th December 1996 a report was finally lodged against the plaintiff by his then superior officer entitled : `SICK LEAVE AND DRIVING TAXI’. Concern was particularly expressed at the `high rate of sick leave’ taken by the plaintiff during the period 19th November to 28th November 1996 and `what you were doing during your period of sick leave’ namely, `driving taxi’.
As a result of the above the plaintiff was formally ch with a disciplinary offence of Malingering&n/b> :rary to Regulation 18(1 18(18) of the Prison Service Regulations in that : `while on sick leave, (he) was found to be driving taxi’. The plaintiff app before a tribunal on 1111th December 1996 and pleaded `not guilty’ to the charge. He also sought `an independent tribunal’ and his application was granted and the Supervisor of Naboro Prison was appointed to hear the case.
In this latter regard Section 30 (1) of the Prisons Act (Cap.86) provides that `for the purposes of the trial of offences against discipline there shall be the following tribunals ...’ and, in the case of a subordinate officer such as the plaintiff, paragraph `B’ constitutes - `A Supervisor or Senior Officer’ as an appropriate tribunal to try offences. No complaint can be nor was any raised by the plaintiff on that score.
As far as the procedure at trials of disciplinary offences is concerb>Section 30(2) generally provides that:
`No officer ... shall be convicted of an offence against discipline unless the charge has been read out and investigated in his presence
and he has been given sufficient opportunity to make his defence thereto.’
This is further reinforced and expanded in Regulation 19 of the which affords a fairly comprehmprehensive list of protections in order to secure a fair trial for an accused officer.
In the present case having perused the record of proceedings and in the absence of cross-examination pertaining thereto, I am satisfied
and so hold that the provisions of Sections 30(2) of the Prisons Act (Cap.86) and Regulation 19 (ibid) were substantially complied with in the trial of the plaintiff for the disciplinary offence of Malingering.
It is clear however, from the record of procgs that the tribunal that heard the disciplinary charge against the plaintiff did not
deterdetermine the charge or impose any penalty on the plaintiff nor did the tribunal invoke Section 32 as it could have done. In its own words : `Without making any findings I state the proceedings to the Commissioner of Prisons for his decision and award.’
Having said that however the Tribunal then proceeded, iect, to make several crucial findings of fact including an g an adverse assessment
of the plaintiff’s credibility. That should not have occurred and was quite improperly included in the record of proceedings that
was transmitted to the Commissioner for his decision.
The plaintiff complaowever that the Commissioner of Prison’s handling of the matter after it had been reen referred to him was `in excess of jurisdiction’ in that it deprived him of procedural fairness and denied him natural justice.
Although not specifically mentioned in the tribunal’s referthe sole authority or basis for the particular course of acof action adopted
is that which is provided in Section 35 of the Prisons Act (Cap.86) which reads :
`In any case where it appearshe Supervisor or senior offr officer who is inquiring into an alleged offence against discipline, that
the offence alleged to have been committed would not, by reason of its gravity, or by reason of previous offences, or for any other
reason, be adequately punished by any of the punishments that he is empowered to impose by Section 30 such supervisor or senior officer
shall, without recording any finding, stay the proceedings and transmit the proceedings to the Controller’
and, in such a circumstance, the Section continues :
`The Controller may hear and determine the case hi or direct that it be dealt with by the supervisor or senior officer who transmitted
it, ort, or by any other Supervisor or senior officer.’
For his part the Commissioner of Prisons no-where deposed that upon receipt of the proceedings he had exercised his power to `hear and determine the case himself’ as he was obliged to do in the event that he did not direct it to be dealt with by the referral officer or by another officer. Indeed,
it is sufficiently clear from paragraphs 34 & 35 of his affidavit (Exhibit D-1) and his answers in cross-examination, that the Commissioner of Prisons determined the case against the plaintiff merely by considering the written transcript of the proceedings heard by the Supervisor of Naboro Prison which had been transmitted to him with the tribunal’s inadmissible findings and remarks. That was a course which the Commissioner was not entitled to follow.
In the only reported judgment in this area, namely, Sefanaia Masi Kaumaitotoya v. The Controller of Prisons & The Attorney General (1982) 28 F.L.R.54, Kermode J. (as he then was) in declaring that the Controller of Prisons had erred in law in finding the plaintiff guilty of a disciplinary offence where proceedings were referred to him under Section 35 in almost identical circumstances as in the present case, said at p.58:
`The Controller did not `hear’ the plaintiff’s case. He certainly purporo `determine’ it but such determination in my view was a nu
a nullity as he had not complied with Section 35 which required him to hear the case if he elected to hear it himself.
When the Controller decided to `hear and determine’ the case himself he became the Tribunal trying the case. He was obliged to start
de novo and hear the charge against the plaintiff in the usual manner. This he did not do.
While it is appreciated that this involved dupion of work that is what the law requires if the proceedings are not sent back to the
TribuTribunal to conclude. The express prohibition of the record of any finding by the Tribunal that first hears the case is intended
to prevent any pre-conceived views the ultimate Tribunal hearing the case might have gained from perusing the record made by the
first Tribunal.
The Controller could have sent the proceedinck to the Tribunal and directed him to deal with the case. He could then under Section
31 h 31 have reviewed the proceedings and if necessary increased the punishment meted out by the Tribunal. He elected not to do so.’
and, in words that might equally apply to the present case, Ker J. continued :
ass=MsoN=MsoNormal style="text-align: justify; margin: 1 36.0pt"> `It is clear from the evidence ... that the question of the guilt of the plaintiff was very much a case of which side the Tribunal
believed.
The Controller, not having seen or heard any witness, was in no position merely from reading the (record of the) proceedings to decide on the issue of credibility or the guilt or otherwise of the plaintiff and his two witnesses.
I have not seen the proceedings f such views (as to the plaintiff’s credibility) weri>were expressed by the Tribunal in the proceedings he recorded (as occurred in this case), they would constitute `findings’ which he was expressly precluded by the Section from recording.
I am in no doubt at all that the purported conviction of the plaintiff was irregular. There was not in fact a heari the Controller
and it foll follows he was not empowered to convict the plaintiff.’
A similar fate must befall the Commissioner’s determin in the present case where he deposed at paragraph 35 of his affidavit (Exhibit D-1) :
`As the facts had been established he Supervisor of Naboro Prison) that the plaintiff haff had in fact committed a disciplinary offence, I found him guilty.’
It is significaat in his written explanation to Public Service Commission dated 14th January 1997 in response to the Commissioner’s letter, the plaintiff maintains that :
`In fact the case regarding the allegation that I was seen ng a taxi after my Annual Leave is still under investigation. For this
I am still innocent cent until the tribunal proves that there is enough evidence to judge me guilty. I was in fact travelling to
hospital while I was on sick leave.’
The significance of this is that it seems the plaf was not advised by the Commissioner that he had been found guilty of the offence ance as he plainly should have been.
Unfortunately the errors is case do not end there but are continued in the Commissioner’s purported exercise cise of his powers under Section 15 of the Prisons Act (Cap.86).
In this regard the Commissioner deposed that he did not impose any punishment on the plaintiff for the offence of Malingering preferring instead to invoke Section 15(1) which he considered the more appropriate procedure. Plainly the Commissioner had formed the view that the plaintiff ought to be discharged from the service.
It is noteworthy that no mention is made at all,er in the Commissioner’s affidavit or in his oral testimony, that, having formed thad that view, he as the proper `tribunal’, had applied his mind to the provisions of Section 32 of the Prisons Act (Cap.86) which relevantly provides :
`Where it is considered that a junior or subordinate officer should be removed from office ... ; he shall be so informed at the conclusion
of the hearing by the Tribunal and told that -
(a)&nbssp; nbsp; &nbbp;&nnbp;& &nbbsp; apan>any repy representations made in writing by him within fourteen days, will be forwarded to the Secretary of the Public Service
Commission, accompanied by all relevant papers and records for a decision to be made by the Commission ; and that
(b) ;&nbssp; &nsp; &nsp; p; &nnsp;& If he m he makes no representations within 14 days, he shall be removed from office .ccord.’ N-GB>
Quite plainly Section 32 is in my opinion, ore appropriate provision where a decision to discharge an officer is taken during the cour course of a disciplinary
hearing and not the procedure under Section 15 which applies `at any time’ irrespective of whether or not a disciplinary hearing has occurred or is being undertaken.
Be that as it may, the Commissioner wrote to the plaintiff on 6th January 19> in the following terms:
`Recently I have received several reports on your poor work performance. Latest one’s on 19.11.96 where you were seen driving a taxi
instead of resuming duties after enjoying your Annual Leave.
ass=MsoN=MsoNormal style="text-align: justify; margin: 1 36.0pt"> You were enlisted into the Fiji Prisons Service on 5.11.80. To date you have been charged on : 12 occasfor breaches of discipline,line,
13 counselling sessions and 9 written warnings. These had little effect on your performance and attitude towards your duties.
It is obvious that you have ceased to be an efficient officer. Under the provisions of Section 15(3) of the Prisons Act, cap.86, I wish to inform you that I intend to discharge you under Section 15(1)(c) of the Prisons Act and hereby serve you one (1) month notice as required under sub-section 2.
However, I invite you to submit in writing within fourteen (14)days as to why you should not be so discha An early written explanatianation
will be forwarded to the Secretary for Public Service Commission. If no representation is received from you within fourteen (14)
days, I will assume that you have waived this privilege extended to you.’
Section 15 of the Prisons Act (Cap.86) relevantly provides :
`(1) Stbjecsuto ctise (ion (3) (3) any officer of the Prison Service other than a senior officer may be discharged by the Controller
at any time -
/p>
(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;&nssp; p; &nbp; &nbp; ;&nbssbsp;n&nbssp;&nnbsp;;&sp;; &nbssp;nbbp;  &nbs;&nbs;
&nbp; &nsp;&&bsp; nbsp;  &nnbsp; &nnbsp;& p;&spp;&nb/spab/span>if the Controller cers te is ely to beto become,come,
or h or has ceased to be an efficient officer.icer.
(2) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
(3) p;&nbbsp;&nsp;&nbp;&nbp; ;&nbssp; Where itre it is considered that any such officer should be so discharged he shall be so informed and told that -
<1">
(a) ;&nbssp; &nsp;&nsp; &nbssp;&nnsp;&&nsp; &nsp; any reptesenn made made in writing by himin 14 days, will be forwarded to the Secretary of the Public Service Commission accompaniedanied
by all relevant papers and records for a decision to be made e Comon ; and that
(b) p;&nbbsp;&nsp; &nsp; p; &nnsp;& if he m he makes no representations within 14 days, he shall be discharged in the manner pibed is se.’
It will be seen from the above thatection 15(1)(c) comprises two (2) quite separate and disjunctive limbs albeitlbeit that they are both concerned with the assessment of an officer’s efficiency. Furthermore the section recognises that `efficiency’ is not a `once-for-all time’ assessment or in other words, `efficiency’ once attained can never be lost, but equally, just as one swallow does not make a summer neither does one incident of indiscipline
inevitably spell the end of an otherwise efficient officer.
Kermode J. was quite aware of this difference in the limbs when he said in Sefanaia Kaumaitotoya’s case (op.cit) at p.59 after setting out Section 15(1)(c) :
`I cannot see how the Controller can be satisfied as to both the alternative situatiovered by the provisions.
/b>
If the plaintiff was unlikely to become an efficient officer that implies he has never been an efficient officer.
Conversely if he has ceased to be ficient officer (as was stated in the present case) i it implies that he had attained efficiency at some time but that he was no longer efficient.
I consider the plaintiff is entitled to know the proper reason for his dismissal ... (and)d) ... the Controller should have stated precisely the grounds on which he proposed to dismiss the plaintiff.
The virtually contemporaneous conviction of the plaintiff and his proposed dismissal raises a very strong inference to an onlooker
that the conviction triggered off the proposed dismissal’
In the present case the plaintiff complains that the Commissioner had erred in invoking Section (c) and in not confininfining himself to the period after 5th November 1995 when the latest renewal of the plaintiff’s contract occurred and which plaintiff’s counsel argues tantamounts to a `forgiveness of (the plaintiff’s) past indiscipline’.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In his evidence however the Commissioner quite firmly red the suggestion that he had improperly invoked Sectionction 15 by way of a penalty and said that he considered he was entitled to refer to and consider the plaintiff’s conduct prior to his contract renewal `in deciding whether the plaintiff should be allowed to continue in the prison service as an efficient officer’. Needless to say the plaintiff’s contract renewal in 1995 had occurred during the term of the present Commissioner’s predecessor and ought not therefore to bind him. I cannot agree.
In the first place, a prison officer’s employment is rather unusual in that once appointed he cannot resign or withdraw from the Prison
Service without the consent in writing of the Controller (see : Section 13) ; secondly, Section 29 of the Prisons Act (Cap.86) provides for the punishment of any officer who commits any offence against discipline and, where punishment has been imposed, `no such officer shall be punished twice for the same offence’. This latter prohibition would be rendered meaningless if the officer’s conviction could subsequently be resurrected for the purpose
of undermining his `efficiency’ as occurred in the plaintiff’s case. The same cannot be said however, of warning letters and counselling sessions or other non-disciplinary
measures but that was not all that the Commissioner considered as his memorandum clearly disclosed.
This is rendered all the more important when one considers the submission of defence counsel that the Public Service Commission’s decision under Section 15 is merely to `confirm, vary or revoke the Commissioner of Prisons (declared) intention on the basis of the representations made by the plaintiff’ and further, that the decision of an officer’s `efficiency’ is entirely for the Commissioner of Prisons to determine as the person best suited to assess it. On both counts I cannot agree.
This erroneous submission is evidenced by the title and contents of the letter of the Public Service Commissiondated 5th February 1997 discharging the plaintiff, which reads :
`The Public Service Commission at itsing held today has considered your appeal and decided that you be discharged from the PrisoPrison
Service in accordance with Section 15(1)(c) of the Prisons Act, Cap.86.’
The use of the word `appeal’ is unfortunate in the circumstances, since it belies a misunderstanding e Public Service Commissmmission of its role and function in the discharge of subordinate prison officers and, despite the Assistant Secretary’s (DW2) attempts to down-play the use of the term, his statement (at para.3 of his affidavit) that : `At its meeting, the First Defendant (PSC) agreed with the Commissioner of Prisons that the plaintiff had ceased to be an efficient officer’ reinforces the Public Service Commission’s misunderstanding of its role and function.
In light of the numeroregularities that occurred in this case I am reluctantly driven to the conclusion that the the plaintiff was
improperly discharged from the Prison Service.
He has not sought reinstatement however and given the length of time it has taken for this matter to be finally determined (for which
the plaintiff must bear some responsibility) and the fact that the plaintiff’s employment contract would have expired on 5th November 2000, the justice of the case is best served in my view by a formal declaration and an order for the assessment of damages in the event
that agreement cannot be reached.
Accordingly I declare that the plaintiff was wrongfully discharged on 5th February 1997 5th November 2000. The plaintiff is to have the costs of these proceedings which are summarily assessed at $750.00.
D.V. Fatiaki
JUDGE
At Suva,
16th March, 2001.
HBC0300J.97S
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