Unreported National Court Decisions
N1394
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 196 OF 1993
BETWEEN:
POCHON LILI - Plaintiff
And:
JOSEPH GABUT, Secretary for Department of Fisheries & Marine Resources - First Defendant
And:
PAUL SONGO, Secretary Department of Personnel Management - Second Defendant
And:
INDEPENDENT STATE OF PAPUA NEW GUINEA - Third Defendant
Waigani
Sheehan J
28 December 1995
JUDICIAL REVIEW - claim of failure to comply with statutory procedures - application for reinstatement.
Counsel:
Mr F Gubon for the Plaintiff
Mr L Manua for the Defendants
28 December 1995
SHEEHAN J:  This was a matter which went to trial before the late Mr Justice Konilio but not determined before his death.  The evidence in this matter is largely affidavit evidence and by consent of the parties submissions on facts and law are put before me for decision.
The Applicant formerly a Deputy Secretary of Department of Fisheries & Marine Resources seeks review of a determination to suspend him and charge him with various breaches of duty.  The suspension of the Plaintiff arose out of allegations of misconduct against him and other senior officers of the Department that had been made to the First Defendant, Joseph Gabut, on his taking over as Secretary of the Department in December 1992.  These allegations included failure to use proper procedures in the issue fishing licences allegations of misuse of Departmental funds and failing to acquit travel monies expended both locally and overseas.
The Plaintiff sought judicial review of:
“the decisions made by the Secretary Fisheries and Marine Resources and the Secretary for Personnel Management to suspend and charge the Plaintiff without the complying the requirement of Public Services (Management Act) and for not carrying out the recommendations of the Public Services Commission set out in the Statement filed...”
In the Statement filed in support of the summons the Plaintiffs seeks:
(a)      an order for leave to apply for judicial review of the decision made by the 1st Respondent to suspend the Plaintiff on 11 March 1993 charging him for five offences on 8 April 1993 without complying with the requirements and procedures set out in the Public Services and (Management Act) 1986 in dealing with the charges.
(b)      An order to declaring the said decisions null and void and in its stead, the 1st respondent accept and implement the recommendations of PSC on this matter.
(c)      An interim order for the stay of the decisions.
And thereafter an order for damages including exemplary damages.  By way of explanation the Statement goes on to say (inter alia) that:
“the 1st Respondent decided to charge the Plaintiff with five charges under the Public Services (Management Act) all of these charges were minor, relating mainly to non acquittal of travel funds for trips that the Applicant took which were dully authorised.  The only failure on the part of the Applicant was his non submission of Public Services acquittal forms.  There were no suggestion in these charges that the Applicant improperly apply the use of its funds, i.e. he did not take the trips for which the moneys were released.”
The grounds on which relief is sought are:
“(a)    The decisions were wrong in law and harsh and oppressive within the meaning of s 41 of the National Constitution.
(b)      The decision to suspend and charge the Applicant were clearly disproportionate to any improper conduct negligence or breach of any Plaintiff that is the decision was harsh oppressive and unwarranted.
(c)      The decision to suspend and charge were made against the spirit of the Public Services Management Act in that the suspension and charging was contrary to natural justice and the bias shown by the Secretary is further reason why his decision should be set aside.
(d)      The findings were arrived at through a very superficial investigation.
(e)      The decisions were made against the spirit of the Public Services (Management Act) in that the decisions were taken without compliance with the procedural requirement of the Act.
(f)      The decisions were contrary natural justice.
(g)      The 1st Respondent was biased in his decision in that he took in account wrong and improper considerations.”
The whole of the Plaintiffs claim is clearly misconceived.  At the very least it has been wrongly pleaded.  As set out above, the Plaintiff apparently seeks to challenge by way of judicial review the decision of the Secretary to suspend him while investigations were made into the allegations that the Plaintiff had been guilty of misconduct, and the decision made upon receipt of a report of that investigation, charges that charges should be laid requiring the Plaintiff to answer.
But in fact at  the hearing of this application the Plaintiff offered no serious challenge to the Secretary’s undertaking that course though he and his Counsel in submissions are critical of him for doing so.  The real challenge of the Plaintiff (although it is not pleaded), is aimed at the decisions of the 1st Defendant following the suspension, investigation and laying of charges.  That is, although the review sought is of the decisions to suspend and charge, the real criticism of the Plaintiff is aimed at the decisions of the Secretary to impose penalties.
But first, this review must deal with the issues as pleaded by the Plaintiff.  I believe that the Secretary’s letter to the Public Services Commission of the 14 July 1993 is an appropriate summary of the facts concerning the issues of suspension and charges.  It covers both the relevant events and it is more or less contemporaneous with them.  The letter was in fact a reply to the Public Services Commission of its notice of intention to review the suspension following its receipt of an appeal by the applicant.
“SECRETARY FOR FISHERIES AND MARINE RESOURCES
PO Box 165
KONEDOBU
Papua New Guinea
14 July 1993
The Chairman
Public Services Commission
PO Box 2335
BOROKO
National Capital District
Dear Sir
1.       This a reply to your letter of 7th July 1993 regarding the APPLICATION FOR REVIEWING OF A PERSONAL MATTER FROM MR POCHON LILI - DEPARTMENT OF FISHERIES AND MARINE RESOURCES, with the relevant documents attached.
Background.
2.       The charges against Mr Pochon Lili were prepared by the former Secretary of DF Mr John Natera, and presented to me on the day I took office as the incoming Secretary.
3.       I did not act on the draft charges for sometime.  However, because of the seriousness of the allegations, I hired a former Ombudsman, Mr Ango Wangatau to carry out an independent investigation of the complaint against Mr Lili.
4.       The Report of the independent investigator concluded that Mr Pochon Lili was in the wrong and he should be charged.
My Decision on Mr Pochon Lili’s case.
5.       As Mr Lili was the deputy Secretary, he obviously has access to files and relevant documents relating to the duties and functions of the Department.  My decision on 11th March 1993 to suspend him pending the outcome of the independent report was necessary to avoid any possible interference in the independent investigation, especially the possibility of files on the case against him being removed from his office.
6.       Based on the very clear conclusions of the independent investigator, I had no option but to lay charges against Mr Lili.
7.       Mr Lili was given the opportunity to reply to the charges laid, and he did deny the charges and the findings of the independent report.
8.       I was then faced with two options.
(a)      institute another investigation; or
(b)      act on the findings of the first investigation.
9.       My decision to recall Mr Lili back to duty was contained in my Circular No Sec. 14/93 of 11th May 1993.  Mr Lili was appointed Special Projects Officer as a temporary measure until I get further guidance from the Department of Personnel Management.  He was being paid on his substantive salary level.
10.     I was then advised of the decision by the Secretary for Personnel Management to stop salary payment to Mr Lili as of 19th April 1993.
11.     I decided to stop salary payment based on the decision of the Secretary for Personnel Management because Mr Lili defied my instruction to turn up for duty.  Also I believe Mr Lili should reimburse the State for the money paid to him from 19th April 1993 until the time I stopped his pay.
My Conclusions.
12.     I believe I have acted within rules in handling Mr Lili’s case did take a decision within 21 days by recalling him to duty as per my Circular No 14/93 of 11th May 1993.
13.     A final decision on his case requires time and I need to consult with the Department of Personnel Management properly before I can take a final decision.
Yours sincerely
JOSEPH GABUT
Secretary
The Counsel of the Plaintiff contends that the decisions of the Secretary to suspend and subsequently lay charges were harsh and oppressive in terms s. 41 of the Constitution.  This cannot be sustained.  Any Secretary of a Department faced with serious allegations of impropriety not only has the authority to under s. 47 of the Public Service (Management) Act suspend and investigate and if necessary lay charges, in appropriate circumstances he may be duty bound to do so.  There can be no doubt that, faced with the allegations presented to him and the findings of the investigation he instituted, the Secretary’s decision cannot be faulted.
The second major ground for relief in this application was that the decision to suspend and charge was disproportionate to any improper conduct, negligence or breach by the Applicant.  This ground cannot be sustained either.  There were submissions that “the Plaintiffs failure to acquit travel funds are very trivial administrative errors” and the submissions “that the first Defendant has used a very small and insufficient administrative oversight” on which to lay complaints.  These submissions are simply, not acceptable.  The accounting for public funds is never a trivial or insufficient matter.  Every public servant has the obligation to account for public funds expended by him.  Failure to do so can be a matter of serious misconduct.
Equally unacceptable were the Counsel’s allegations that “the charges laid were some kind of holding charges pending the completion of Police investigation”.  There was simply no evidence of that. nor was there any justification for the allegation that “the Plaintiff has been made a victim of the first Defendant’s efforts and actions to please his political masters.”  This is simply invective, unacceptable and without substance.  It appears to be  based solely on the Applicant’s (or his Counsel’s) annoyance  at  the Secretary taking a view of proper procedures contrary to his own.  The willingness to impute improper motives to the Secretary without justification does not reflect well on the Plaintiff or his Counsel.  It was said “the Plaintiff is an honest and hard working public servant unfortunately, not well understood by first Dependant.”  The first Defendant at least understood that accounting for public funds is not a trivial matter.  The Plaintiff was charged with such offences.  He was given full opportunity to reply to them and did so at length.  There is no evidence to show there was any breach of the rules of natural justice.
It is quite clear that the Plaintiff was well aware that serious allegations requiring police investigation were raised by the Secretary’s enquiry.  These were referred to the Fraud Squad for further investigation.  That automatically placed on hold, any final disposition of the charges laid.  In the event these police investigations were not completed until late 1993.
As for not carrying out the recommendation of the PSC, that cannot amount to a ground of complaint since the discretion to accept or refuse a PSC recommendation lies with the Secretary alone.  But in any case the PSC recommendations were made in respect of a complaint laid in July of 1993 that:
“(a)    That the charge has been made invalid by the Secretary’s failure to determine the charge and advise Mr Lili on his decision within 21 days after he replied to the charge as required by O 8.35 of the General Orders.”
That was of course with the PSC apparently being unaware of the fact that a police investigation was still on foot and unresolved.  The PSC also had apparently taken no obvious account of the actions in respect of the charges taken by the Secretary as outlined in his letter.  No reference is made to the report of the secretary at all.  The PSC apparently accepted the Plaintiff’s assertion that he had made no decision.  But in fact the real basis of the PSC recommendation is that his decision was unsustainable because of the illegality of the Secretary’s own appointment, a situation subsequently corrected.  The PSC findings were founded on inadequate and inaccurate information, and the recommendation it made was based on a finding on the status of the Secretary rather than on the validity or appropriateness of his decisions regarding the Plaintiff.
But, Counsel for the Plaintiff says:
“our main legal argument .is that the first Defendant failed to comply with the requirements of the Public Services Management Act 1986.  More specifically, he failed to make his decision on the charges he laid against the Plaintiff within the 21 days period prescribed under O 8.35 of General Orders (promulgated) under the Act.”
It was submitted that because no decision was advised, either within 21 days or at all, that nullified the decision to suspend and should be set aside.
This is not a matter pleaded in the Originating Summons which complains only that the decision to suspend and lay charges was not in compliance with the Public Services (Management) Act.  As has been said already the decisions taken were within the provisions of s. 47 of that Act.
Here too, it is plain that the Secretary did make a decision albeit not strictly within the 21 days.  He appointed him Special Projects Officer.  The Plaintiff was aware of this decision and through his lawyer wrote to the Secretary querying “that decision of yours” in a letter dated 18 May 1993.
In my view faced with an outstanding police enquiry, the Secretary’s decision to make a temporary appointment, (which effectively provided for the Plaintiff’s entitlements being paid to him) was eminently reasonable, and arguably, substantial compliance with General Orders.  Certainly such a decision is not a reason to invalidate a suspension, or to stifle an on-going investigation.  Nor is it a reason for this Court to exercise its discretion to set aside the Secretary’s actions with regard suspension as being an invalid exercise of his authority.
It would be within the normal process, that a Plaintiff having failed in the case he pleads, to have his action dismissed.  But while the challenge to the decisions of the Secretary - as pleaded by the Plaintiff in this judicial review cannot succeed, the situation remains unresolved.
The Plaintiff insofar as the evidence before this Court shows, remains in a temporary position with a final determination as to the charges not yet made.  The Secretary in his letter of July 1993 states that the action he took in appointing Mr Lili as Special Projects Officer was a temporary measure pending the consultation with others and awaiting result of a police enquiry.  The PSC report on the 23 October 1993, also states that the Plaintiff substantive position remains that of Deputy Secretary FMEX.2 Level 5 in the Department of Fisheries and Marine Resources.  That was also the position of the Department of Personal Management  during August 1993 when it recommended to the Secretary that the matter was not resolved properly and that the Plaintiff should be reinstated to his former position with salary and entitlements if there was no final decision made.  There was no evidence before this Court that this situation has changed.  Therefore while the charges relating failing to acquit funds have been effectively dealt with, and the Police investigation resulted in the Plaintiff being cleared of any charges he remains in the limbo of a temporary position which neither the Secretary of the Department Personnel Management nor the Public Service seem to have been able to resolve.
It is the view of this Court that this situation is unreasonable and should be resolved in favour of the Plaintiff.  It is unreasonable to expect that there should now be orders of  this Court that there be further enquiry into these matters or further hearings to make final resolutions of matters now more than two years old.  Such penalties as have been imposed on the Plaintiff for the charges proved are obviously sufficient.  The lengthy progress of this matter through the Public Services Commission and before this Court  have only aggravated those penalties.  It is plain that an order that he be now reinstated is appropriate.  Accordingly there will be an order that no reason having been shown why the Plaintiff should not now be reinstated, the Court orders his reinstatement to his substantive position of Deputy Secretary FMEX.2  Level 5 in the Department of Fisheries & Marine Resources or such equivalent position as the Department of Personnel Management shall determine.
There will be no order as to costs.