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State v Permanent Secretary for Women, Social Welfare and Poverty Alleviation, ex parte Prakash [2004] FJHC 310; HBJ0001j.2003b (10 September 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0001 OF 2003

Between:

STATE

-v-

1. THE PERMANENT SECRETARY FOR WOMEN,
SOCIAL WELFARE AND POVERTY ALLEVIATIONS

2. ATTORNEY-GENERAL OF FIJI
Respondents

Ex parte: AVINESH PRAKASH
f/n Subhag Chand
Applicant

Mr. A. Kohli for the Applicant
Mr. S. Sharma for the Respondent

JUDGMENT

Leave was granted to Avinesh Prakash f/n Subhag Chand (the ‘applicant’) to apply for judicial review of the decision of the Permanent Secretary for Women, Social Welfare and Poverty Alleviations (the ‘respondent’) made on 13 December 2002 terminating his probationary appointment forthwith.

Decision impugned

The decision impugned which is dated 13 December 2002 reads as follows:

“Recent investigation by the Assistant Director of Social Welfare, Corporate Services, into the alleged misuse by you of the Family Assistance vouchers has established your misconduct in the performance of duties. You have also admitted in writing that you issued voucher books without the consent of the Senior Welfare Officer, Northern as the procedures required you to do.

It is regretted that in terms of clause 4 of your letter of appointment, it has been decided that your probationary appointment be annulled forthwith”.

Reliefs sought

The reliefs sought by the applicant are:

(a) An order of certiorari.

(b) An order that termination of service be set aside

(c) A declaration that the Permanent Secretary acted unfairly and/or exceeded his jurisdiction in terminating the applicant’s services.

(d) Damages

(e) Further declaration and/or other relief.

Grounds of review

The grounds on which relief sought are as follows:-

(1) Denial of opportunity to be heard and breach of natural justice.

(2) Excess of jurisdiction in that the Respondent had no powers to annul the appointment.

(3) The decision by the Respondent is arbitrary and unreasonable.

(4) Breach of legitimate expectation of the Applicant.

(5) Abuse of discretion.

About the applicant

On 14 May 2001 the applicant was appointed a Welfare Officer IV ‘Income Support’ at Labasa. He was on probation for one year. On 13 December 2002 his employment was terminated.

In his affidavit the applicant sets out the duties he was performing. The applicant was questioned about not getting the vouchers which he issued to be countersigned by a Senior Welfare Officer as he was required to do. In November 2002 he was questioned by Mark Fung the senior welfare officer about the vouchers he had issued. He admitted issuing them but he says that he was not told of the procedure of getting them signed as stated above.

By letter dated 4 December 2002 he admitted his mistake and apologised.

The applicant’s letter of appointment which is dated 14 May 2001, stated at item 4 as follows:

“Your appointment will be on probation for one year and may be terminated by one month’s notice, on either side or by payment of one month’s salary in lieu of notice. You will also be liable to summary dismissal in the event of misconduct or insubordination during the probationary period”.

On 13 December 2002 his appointment was terminated by the Respondent. This was confirmed in June 2003 by the Public Service Commission.

Consideration of the application

I have considered the application on the affidavit evidence produced to Court and the helpful written submissions from both counsel.

The learned counsel for the applicant raised a number of grounds for review.

As for the ground that there was denial of natural justice, I find that this is not supported by evidence before the Court.

In actual fact he was given full opportunity to be heard in his defence and to reply to the allegations made against him. During the investigation he was given full opportunity to present his case orally.

On the ground of power to annul the appointment, s. 147 (1) of the Constitution gives power to the Public Service Commission (PSC) (and its delegate) the power to remove persons from public service. This power is delegated to the Respondent with Delegation of Powers of the PSC (Vide Legal Notice No. 92 of 2002) which expressly empowers the Respondent to annul probationary appointment.

There is therefore no merit on this ground.

On the grounds of alleged arbitrariness and unreasonableness there is no substance on the argument as a full investigation was carried out where all concerned persons were given the opportunity to respond so was the applicant.

The applicant was found guilty and he had himself admitted his guilt. This was a serious matter for a person employed in the Public Service albeit on probation.

This kind of misconduct will not be tolerated by any employer.

The respondent very rightly dismissed him from employment after following the correct procedures.

The applicant raised the ground of legitimate expectation stating that this was breached when he was not confirmed.

It baffles me to see the applicant’s counsel suggesting ‘legitimate expectation’ in the case of the applicant. If there is any ‘legitimate expectation’ it is that he should expect immediate dismissal.

During his probationary appointment he committed a serious offence by issuing family assistance vouchers to his own relations, without any approval from his superiors. No regulation under the Public Service Regulations will absolve him from his guilt. He does not deserve any sympathy.

The applicant says that there was abuse of discretion. This ground fails on the facts. This was a case of abuse of office and fraudulent practice and my comments stated hereabove are sufficient answer to this ground of review. His letter of appointment is sufficient to dismiss the applicant as he would be liable to summary dismissal for any misconduct during his probationary period.

As Mr. Sharma submitted that whilst Regulation 12 does provide for automatic confirmation, the Regulation must be subservient to the provisions of the Constitution and the express constitutional authority of the Commission to remove a person from Public Service.

Conclusion

For the reasons given hereabove I find that there are no merits whatsoever in the grounds for judicial review.

It is a frivolous application when the applicant should have known that he has no leg to stand on after committing such a serious offence, and admitting it, whilst on probationary appointment in the Public Service.

Honesty is a very important virtue in a Public Servant. One should be honest as opposed to cheating or robbing one’s employer; and what makes a good public servant is his/her ability to do an honest day’s work to justify the wages/salary he/she gets and be straightforward in his/her dealing with members of the public to whom one is committed to serve. There is no place for dishonest people in the Public Service. If one comes to court he/she must come with clean hands.

The following statement from Pearce v Foster [1886] UKLawRpKQB 67; 17 QBD 536 at 539 is apt in the case of this applicant:

“The rule of law is, that where a person has entered into the position of a servant, if he does anything incompatible with the due and faithful discharge of his duty to his master, the latter has a right to dismiss him”.

For the above reasons the application for judicial review fails. I award costs against the applicant in the sum of $400.00 to be paid to the respondent within 14 days.

D. Pathik
Judge

At Suva
10 September 2004