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Agen v Secretary, Department of Lands & Physical Planning [1998] PGNC 6; N1682 (6 February 1998)

Unreported National Court Decisions

N1682

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO 468 OF 1996
LUCY AGEN
APPLICANT
V
SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING,
1ST RESPONDENT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
2ND RESPONDENT

Waigani & Goroka

Sawong J
16 December 1997
6 February 1998

ADMINISTRATIVE LAW - JUDICIAL REVIEW - Public Servant - Departmental Secretary’s order of dismissal in disciplinary proceedings - Procedural irregularity - Natural justice - when court may interfere.

Facts

The plaintiff was employed in the Department of Lands & Physical Planning at the time her services was terminated by the Secretary of that Department. She was found guilty of an alleged serious charge, suspended and subsequently dismissed. She was not given an opportunity to address on penalty after she was convicted.

Cases Cited

Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122

Niggints v Tokam [1993] PNGLR 66

Yawip v Commissioner of Police [1995] PNGLR 93

Counsel

A Kongri for the Applicant

No appearance for the Respondents

6 February 1998

SAWONG J: This is an application for judicial review of the decision of the Secretary of the Department of Lands & Physical Planning (the First Respondent) made on 28 August 1995 upholding his own decision made on 12 August 1993 terminating her services from her employment in t he Public Services.

At this juncture, it is to be noted that despite being served with all relevant and material documents neither of the respondents have filed any documents to defend the proceedings. Indeed no answering affidavits have been filed nor any counsel appeared on their behalf at the hearing of this matter.

The only evidence is that from the application to which I will refer later. The undisputed facts are as follows. The applicant had been employed in the Public Services in various capacities and with various Departments of the Public Service since 1973. At the time of the termination of her services on 12 August 1993, she was employed in the Department of Lands & Physical Planning (DLPP). She has been with that particular Department for some eight (8) years.

On or about the 4th February 1988, she and her then husband applied for and were granted a lease over a vacant or unimproved piece of land described as Allotment 1 Section 47, Hohola. The lease was for a term of 99 years.

It is not clear from the evidence, but sometime after the lease was granted she and her husband sold the land without effecting any improvements on it.

Thereafter on 6 October 1992, the applicant was charged by the First Respondent for selling an undeveloped land, contrary to S36 of the Land Act. She was also simultaneously suspended from performing her duties without pay also effective from 6 October 1997.

She was required to reply to the charge within 7 days from the receipt of the charge. She was served with charge paper and the notice of suspension on the 26 October 1992. On the same date she made a written reply to the charge. In her reply she stated inter alia - that the charge was not a proper one as it did not relate to the performance of her duties.

She waited for ten months without any response from the First Respondent. Unbeknown to her, her services had been terminated as of 12 August 1993. She became aware of this on 4 November 1993 when she received her termination notice.

Upon receipt of her termination notice, the applicant on 4 November 1993, lodged an appeal to the Provincial Lands Manager in Kundiawa. The Provincial Lands Manager forwarded the said appeal to the First Respondent and a copy of it was sent to the Public Service Commission.

The Public Service Commission review all the decision of the First Respondent. The Commission recommended that the decision of the First Respondent of 12 August 1993 to dismiss the Applicant be revoked. It also recommended that she be reinstated to her previous substantive position with her full entitlements retrospective to 12 August 1993.

The First Respondent refused to accept and act on the recommendations of the Commission.

The Applicant relies on essentially two affidavits which she deposed to and her oral sworn evidence at the hearing. The gist of her evidence contained in her affidavits are already set out in the preceding pages of this judgement.

One aspect of her evidence, which came out during her oral evidence was that, after she was found guilty, she was not given any opportunity to make submission on penalty. This bit of evidence is not disputed in any manner or form at all, for there is no evidence from the respondents. Her evidence therefore remains unchallenged and undisputed. In the absence of any evidence to the contrary, I accept her evidence on this aspect.

The Applicant’s counsel has raised three grounds for the review. These are:

1. ҈& T60; that the Firs First Respondent exceeded its powers or did not follow or comply with statutory procedures set out by tablintute,

2. &#T60; that eci don ti dism dismiss miss the Athe Applicpplicant was contrary to the principles of natural justice.

3. ; T60 decesion was wrong inng in law.

The principles relating to judicial review of decisions, administrative disciplinary authorities are quite well settled in this jurisdiction. Judicial review is available where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers. See Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.

Counsel for the Applicant has made comprehensive submissions on each of the grounds in his written submissions. I do not propose to deal with each of the grounds nor the submissions that have made in any great detail.

It is evident from the undisputed evidence and the submissions that the Applicant was not charged under a proper statutory provision. She was charged with committing an offence under S 47 of the Public Service Management Act 1986 for selling an unimproved piece of land which was alleged to have been in breach of S 36 of the Land Act. In the notice of punishment under S 47 D of the Public Service Management Act, the First Respondent considered the applicant “guilty of disgraceful or improper conduct in your official capacity or otherwise”.

It is quite apparent that the charge that was laid and contained in the charge paper was different from the charge set out in the form headed “Notice of Punishment--”. The two different documents contained two different and distinct charges.

The applicant was charged under S 47 of the Public Service (Management Act) 1986 within the meaning of S 45 of that Act. It is necessary to set out those provisions, which read as follows.

PART XIII. - DISCIPLINE

45. ҈ DISCIPLINARY NARY OFFENCES

An officer who:

(a) commits a breach of thisp>r

(b) ـ except ts authorizeorized in the course of official dial duty, uses or divulges, directly or indirecany centiaormatoncerpubliiness or any matteratters of s of whichwhich he has official knowledge; or