N3094

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 738 OF 2003

BETWEEN

AMBROSE VAKINAP
Plaintiff

AND

THADDEUS KAMBANEI
First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Sevua, J
2004: 26 & 29 November

ADMINISTRATIVE LAW – Judicial Review – Application for – Review by way of mandamus – Mandamus to compel first defendant to effect decision of Public Services Commission.

JUDICIAL REVIEW – Natural Justice – Breach of – Failure to invite plaintiff to address on penalty – Failure to give reasons for dismissal – Whether failure amount to breach of natural justice.

JUDICIAL REVIEW - Amendment to Public Service (Management) Act 1995 – New Section 18 Public Services (Management) (Amendment) Act 2002 – Power to uphold, vary or annul decision of Departmental Head – Power to make recommendation no longer exist – Whether a Departmental Head has any power to exercise after Public Services Commission has made a decision on review of a personnel matter.

PUBLIC SERVICES (MANAGEMENT)(AMENDMENT) Act 2002 – Section 18 (3) (c) (ii) – Public Service Commission no power to recommend, but power to uphold, vary or annul – Judicial Review – Natural Justice – Breach of – Failure to invite plaintiff to address on penalty – Failure to give reasons for dismissal – Whether failure amount to breach of natural justice – Remedies available to complainant seeking review by Public Services Commission – Period of 30 days in ss (3) (d) (ii) – Whether a Departmental Head has any power or right to exercise within or after that period.

Held:

1. Where in a disciplinary process in the Public Service, a Departmental Head is considering dismissal of an officer, and where the penalty of dismissal is not automatic, but discretionary, the Departmental Head is required to invite the officer to address on penalty and furthermore, the Departmental Head is required to provide adequate reasons for his decision in dismissing the officer. Failure to observe these requirements amounts to a breach of natural justice.

2. Because the Constitution is supreme, a legislation which does not adopt the common law principles of natural justice, which is entrusted in s.59 of the Constitution, must observe the rules of natural justice, the minimum requirement of which, is to act fairly or be seen to act fairly.

3. The first defendant in failing to invite the plaintiff to address on penalty and in failing to provide adequate reasons for dismissing the plaintiff had breached the principles of natural justice therefore his decision must be quashed.

4. Section 18 of the Public Services (Management) Act 1985, which empowers the Public Services Commission to make a recommendation no longer exists therefore the Public Services Commission has no power to make any recommendation, following a review of a personal matter.

5. Pursuant to s.18 (3) (c) (ii) of the Public Services (Management) (Amendment) Act 2002, the Public Services Commission has mandatory power to uphold, vary or annul the decision of a Departmental Head. That power is not a power to make any recommendation.

6. Section 18 (3) (d) (ii) of the Public Services (Management) (Amendment) Act 2002, gives no power or right to a Departmental Head to refuse to implement the decision of the Public Services Commission following the review of a personnel matter.

7. The first defendant’s decision in refusing to give effect to the decision of the Public Services Commission is without any legal foundation, it being an exercise in excess of jurisdiction thereby amounting to an error of law.

Cases cited in this judgment.
Banabas Isoro v. The Commissioner of Police and The State; (OS 341 of 1995) unnumbered and unreported.
Toll v. Kibi Kara & Ors [1990] PNGLR 71
Sioni Butler v. The Commissioner of Police; (OS 649 of 1995) unnumbered and unreported, 4th April 1996.
Pearson Joe Kamgip and Bernard Orim v. Commissioner of Police and The State; N1695, unreported, 26th March 1995.
Godfrey Niggints v. Henry Tokam and The Independent State of Papua New Guinea [1993] PNGLR 66.
Kelly Yawip v. Commissioner of Police and The State [1995] PNGLR 393.
In The Matter of Benson Gegeyo & Ors v. The Minister for Lands and Physical Planning [1987] PNGLR 331.

Legislations cited:
National Court Rules, Order 16 Rule 3 and 4
Public Services (Management) Act 1995, ss
Public Services (Management) (Amendment) Act 2002, s.18 (3)
Constitution, s.59

Other references:
Hotop, Principles of Australian Administrative Law, 6th ed., 1985 pp199 – 200

Counsel:
A. Nambau, for Plaintiff
S. Liria, for Defendants

29 November, 2004

1. SEVUA, J: This is an application for judicial review, leave having been granted on 11 November, 2004. The plaintiff/applicant seeks an order in the nature of mandamus to compel the first defendant to comply with the decision of the Public Services Commission to reinstate the plaintiff to his former position in the Department of Finance within the Public Service.

2. The facts of this case have already been fully stated in the judgment on the leave application. However, since the facts and the evidence are not in dispute, they can be summarized as follows.

3. On 2 December 2002, the first defendant suspended the plaintiff on serious allegations of fraud. On 6 December 2002, the first defendant charged the plaintiff with the two charges. Form 15.6 which is the actual notice of charge is as follows.

To: Ambrose Vakinap

TAKE NOTICE that you are hereby charged with committing an offence within the meaning of Section 50 (e) of the Public Services (Management) Act namely, 

Is guilty of disgraceful or improper conduct in his official capacity or otherwise.
Is negligent or careless in the discharge of his duties.

Facts:

(a) That you knowingly and by false pretence and with intent to defraud the State signed as Section 32 Officer for the following claims which were considered to be improper and fraudulent, whilst you were an unattached officer and also not an appointed Section 32 Officer for Trust Account claims:

Date FF3 signed	O/R No	Supplier	Amount	
20.06.02	CZ No 61744	Augustine Pauwia	K48,500.00	
20.06.02	CZ No 61745	Vagi Philips	K42,600.00	
20.06.02	CZ No 61730	Hellen Watson	K45,000.00	

(b) And you also failed to exercise due care and diligence in ensuring that the official receipts and the Certificate to Judgments (sic) were genuine supporting documents for the above claims.

Your actions not only caused serious breach of the Public Finances (Management) Act and the financial procedures, but tantamount to breach of trust and confidence, as well, in the discharge of your official duties as a public servant, which constitute serious offence under the Public Services (Management) Act, 1995.

AND TAKE FURTHER NOTICE that in accordance with Section 52 (4) of the Act, I hereby call upon you to state in writing, whether you admit or admit the truth of such charge, and give any explanation in writing you may think fit as such offence for my consideration.

AND TAKE FURTHER NOTICE that if no reply is received from you within 7 days after the receipt of the charge, you may be deemed to have admitted the truth of the charge.

Dated this 6th day of Dec. (sic) 2002.

4. On 9 December 2002, the plaintiff responded to the charges. In essence, he denied the allegations made by the first defendant. However, on 9 January 2003, the first defendant dismissed the plaintiff from the Public Service. Consequently, on 22 January 2003, the plaintiff sought a review from the Public Services Commission pursuant to Section 18 of the Public Services (Management) Act 1995.

5. Following a review by the Public Services Commission, the Chairman, Mr. Jerry Tetaga, wrote to the first defendant on 4 August 2003, and advised the first defendant of the following "recommendations" made by the Commission.

1. That the Secretary revoke his decision of 9 January 2003 in convicting and dismissing Mr. Jack Ambrose Vakinap and have him immediately reinstated to his substantive position of Assistant Secretary Advisory Grade 16.

2. That the Secretary effect payment to Mr. Vakinap, all salaries and allowances, if any, he has lost as a direct result of his dismissal.

3. That the notice of suspension, notice of charge, notice of punishment and all documents or papers relating to Mr. Vakinap’s dismissal, be removed from Mr. Vakinap’s personnel and staff files and destroyed in the presence of Mr. Vakinap.

6. The Commission advanced four reasons for its decision in making those "recommendations". They are:-

1. That the Secretary failed to disclose to Mr. Vakinap the evidence and materials he relied on in convicting him of the charge.

2. That the Secretary failed to invite Mr. Vakinap to be heard on penalty before he imposed the extreme punishment of dismissal.

3. That the Secretary failed to give reasons for his decision in finding Mr. Vakinap guilty and in dismissing him.

4. In relation to Mr. Vakinap’s stated ground that the Secretary failed to determine the charge and advise the charged officer of his decision within 21 days of receiving the reply to the charge, and that failure with the requirement will render the decision null and void.

7. On 1 September 2003, the first defendant responded to the Commission’s letter of 4 August 2003 and advised that he had considered the "recommendations" and the reasons thereto and decided to maintain his decision to dismiss the plaintiff. His principal reason for that decision was that the Public Services Commission had not given him the opportunity to present his case in the review pursuant to Section 18 of the Act. However, the question to be asked in view of the stance taken by the first defendant is; does he have any right or power to exercise in law, after the decision of the Public Services Commission? The plaintiff’s application, in my view, rests on the Court’s response to that question.

8. Both counsels have filed written submissions, and the Court has also noted that the first defendant has filed a further affidavit sworn and filed on 19 November 2004.

9. The plaintiff’s counsel’s submissions filed on 22 November 2004 raised Section 18 of the Public Services (Management) (Amendment) Act 2002 as the only issue, that is, whether s. 18 is mandatory on the recommendations of the Public Services Commission in relation to personnel matters and findings of Departmental Heads. That issue, in turn, raises three other issues – whether there was error of law, whether there was want or excess of jurisdiction, and whether the manner in which the first defendant exercised his power was unreasonable.

10. The defendant’s counsel’s submissions on the other hand raised three issues. Whether the "recommendation" of the Public Services Commission are binding on the first defendant pursuant to s.18 (3)(d)(ii) of the Public Services (Management) (Amendment) Act 2002. Whether the first defendant gave reasons for dismissing the plaintiff, and whether the first defendant was under an obligation, in view of the principles of natural justice, to give opportunity to the plaintiff to be heard on the question of penalty.

11. I consider that the second and third issues are merely one issue which raises the question of natural justice, therefore they should be canvassed as one issue only.

12. It is therefore my view that there are two principal issues to be determined in this review. They are natural justice and the correct interpretation of Section 18 of the Public Services (Management) (Amendment) Act 2002. The Court will canvass these issues in that order.

13. The interpretation of Section 18 (3) (d) (ii) of the Public Services (Management) (Amendment) Act 2002 (hereinafter called the Amendment), in relation to the 30 days period is another issue. And finally, whether the first defendant has any power to refuse to accept the decision of the Public Services Commission in the light of s.18 (3)(c)(ii) of the Amendment.

14. First, I will consider the issues arising from the argument on natural justice. When the first defendant decided that the plaintiff was guilty as charged, he (first defendant) did not invite the plaintiff to address on the question of penalty. Whilst it is true that the requirement of natural justice is not adopted in s.52 (5) of the Amendment, it is my view that, in spite of that, the plaintiff is entitled to be invited by the first defendant to address on penalty prior to the first defendant making any determination on punishment.

15. The plaintiff is a long serving public servant. For over 20 years he had served the Department and the country. His future, and that of his family, and his livelihood, were going to be affected by his dismissal. I consider that he should have been given the opportunity to address on penalty.

16. In Barnabas Isoro v. The Commissioner of Police and The State, unnumbered and unreported, (OS 341 of 1995), Hinchliffe, J said at page 2 and 3:

"I am of the view that there has been a fault in procedure in the lead up to the plaintiff’s dismissal in that he was not invited to be heard on penalty after the serious charge was proven."

17. His Honour in that case also referred to the case of Toll v. Kibi Kara & Ors [1990] PNGLR 71, which was a case where the plaintiff lawyer was found guilty of improper conduct and penalized without the Law Society Statutory Committee inviting him to address on penalty. At the bottom of page 75, the Court referred to Hotop, Principles of Australian Administrative Law, 6th ed. (1985) at pages 199 – 200 and cited the following:

18. In the case of disciplinary proceedings where, after a finding of guilt, the penalty is not automatic and the decision-maker has a discretion in the fixing of the penalty, the person affected is entitled to be given the opportunity to be heard separately on the question of penalty even in the case of a non-statutory domestic body: Hall v. New South Wales Trotting Club Ltd [1977] 1 NSWLR 379; Galvin v. Carr [1977] 2 NSWLR 308 at 337.

19. In Isoro’s case, the Court further said:

"It is important that the plaintiff in this case and people involved in similar cases be permitted to address on penalty. Their whole future and reputation could be at stake and therefore to be heard is vitally important."

20. His Honour also followed the same principle in Sioni Butler v. The Commissioner of Police, unreported and unnumbered, 4th April 1996, (OS 64 of 1995). 

21. In the present case, the penalty of dismissal is not automatic. It is one of five penalties that could be imposed by a Departmental Head under s.52 (5) of the Act following a finding of guilt. If the Departmental Head is considering the ultimate punishment of dismissal, he must, as a requirement of natural justice, invite or give an opportunity to the officer charged, to address on penalty. It is my view that in this case, the dismissal was too severe in the light of the failure to observe the principles of natural justice enshrined in our Constitution.

22. I agree with those principles, and in the present case, I find that the first defendant had fallen into serious error that his action needs to be reviewed judicially. I do not think it is only the principles of natural justice that is important, but common sense dictates that a long serving officer like the plaintiff, who faces dismissal, and whose future is at stake, ought to be allowed to address on penalty after all, the ultimate penalty of dismissal would affect him and his future. I do not consider it fair that such a long serving officer’s future could be destroyed by a stroke of an administrative pen without adhering to sound established principles of law, but most importantly, without observing the principles of natural justice, the minimum requirement of which, is to act fairly or be seen to act fairly, as prescribed by s.59 Constitution.

23. In Pearson Joe Kamagip and Bernard Orim v. Commissioner of Police and The State, N.1695, unreported, 26th March 1995, Kapi, DCJ (as he then was) expressed a different view to the cases I have cited above. His Honour said that there is no provision for the member to respond before penalty is imposed and found that s.46 of the Police Force Act excludes any right to be heard before a penalty is imposed.

24. With respect, I do not agree with Kapi, DCJ. I think in two or three police dismissal cases I have dealt with some years ago, I had formed the same view as Kapi, DCJ. However, having read and re-read those cases, I am persuaded that the view I previously held is not correct in law, because the principles of natural justice under s.59 of the Constitution were ignored. It is my opinion that, whether a legislation provides for the common law principle of natural justice in relation to address on penalty in dismissal cases, or not, the Constitution is supreme and must apply to all dismissal cases, whether it is under the Public Services (Management) Act, Police Force Act or other similar legislations.

25. I am persuaded and convinced that where a person affected is not invited to address on penalty and is dismissed, a breach of natural justice has occurred. A person must therefore be heard on the question of penalty, if his dismissal is being contemplated, so that the minimum requirement of natural justice is observed.

26. Secondly, not only did the first defendant failed to invite the plaintiff to address on penalty, the first defendant gave no reason for dismissing the plaintiff. All that the first defendant said was, "you are terminated/dismissed from the Public Service" without providing any reasons for such decision. Counsel for the defendants has submitted that Exhibit "O" to the first defendant’s affidavit sworn on 19 February 2004, were the reasons. Unfortunately, I do not accept that submission. The first defendant merely restated the charges in his notice of punishment. What was the reason? What was the basis for the first defendant’s decision that the charges were to be maintained? There is nothing in the evidence before me that the first defendant had attached any reason to the penalty of dismissal that he had decided to impose on the plaintiff. Perhaps counsel is referring to the four sentences after the second charge under (b). If this is the first defendant’s reason for dismissing the plaintiff, the Court considers this to be no reason at all. A serious disciplinary matter such as this warrants a well thought out and explained reasons, not a mere four lines or sentences which really do not mean anything. After all, there are no facts to substantiate the first defendant’s findings, or if there were, they are not in evidence.

27. The Court is satisfied that neither in Exhibit "O", nor in any other document, had the first defendant stated his reasons for dismissing the plaintiff. In Exhibit "O" the first defendant merely referred to the charges and the facts and then said the plaintiff was terminated or dismissed.

28. However, it is the Court’s view that in the light of the plaintiff’s reply to the charges, the first defendant should have informed the plaintiff of the basis for the dismissal. That is, the first defendant should have referred to the evidence, if any, that he had accepted, and the facts which supported such an acceptance.

29. In his reply to the charges, the plaintiff denied the charges laid against him. Because the charges were premised upon fraud by the plaintiff, he denied fraud and said that any defect or anomaly in the documentation of the claim were the responsibility of the Requisition Officer. He is the officer, who certifies and commits a claim then it is passed on for payment. Did the Requisition Officer check the fraudulent Court judgments? If not, why did he not check? There is no evidence from the Requisition Officer, whoever he was. So how did the first defendant satisfy himself that the processing of the fraudulent Court judgments was done by the plaintiff? There is no evidence against the plaintiff, and there is no reason given by the first defendant as to the basis in which he found the plaintiff guilty, by finding that the plaintiff did commit fraud.

30. The plaintiff was alleged to have endorsed three fraudulent claims when he was not an authorized Section 32 Officer and also when he was an Unattached Officer for Trust Account Claims. The plaintiff denied these allegations. If there was any evidence, that the plaintiff was never given the opportunity to respond precisely to any specific allegations against him.

31. Furthermore, the plaintiff was denied access to the vouchers he was alleged to have signed. He should have been given copies for the purpose of denying or confirming his endorsements of those claims. How did the first defendant know that the signatures on those claims belong to the plaintiff? And what was the basis for such finding of fact? There is no evidence at all. If there was, the first defendant failed to notify the plaintiff of such evidence.

32. In Godfrey Niggents v. Henry Tokam and The Independent State of Papua New Guinea; [1993] PNGLR 66, Amet, J (as he then was) at p.72.

"If no reason are stated other than this kind of statement, it leaves the Court no option than to conclude that there were no good reasons at all. Public Officials discharging public duties are required for public accountability to provide reasons for their actions and decisions. If their decisions affect the substantive interests and welfare of other officers and their families good management and commonsense principles of fairness requires that reasons be given." (my underlining)

33. I adopt this statement as a very sound principle of public law.

34. In Kelly Yawip v. Commissioner of Police and The State [1995] PNGLR 393, the Court said inter alia:

"Where the decision of the Police Commissioner affects substantial interests and the welfare of police officers and their families, the Commissioner must give reasons for his decisions, which must be given at the time the decisions are made…………"

35. The failure to give reasons amounts to a denial of natural justice and when no reasons are given, the Court is entitled to conclude that there are no good reasons for the decision.

36. A very good exposition of the law on this principle, but under a different legislation and set of facts is found in the pronouncement by the Supreme Court in In the Matter of Benson Gegeyo, Margaret Misso, Brian Bell and Sir Ravu Henao v. The Minister for Lands and Physical Planning [1987] PNGLR 331; where the Court held inter alia:

(3) The power to revoke or suspend an appointment, being a decision affecting the status of persons, the Minister was required to observe the principles of natural justice to the extent at least of giving advice or notice in writing of the reasons for his proposed decision and if those reasons were likely to reflect adversely on the character, integrity and reputation of that person, then by giving that person an opportunity of being heard in his defence.

(4) If an authority purported to exercise statutory power gives no reasons in a case where it may reasonably be expected to do so, the Court may infer that it has no good reason for reaching its conclusions and may act accordingly.

37. I agree with those principles and also with what Hinchliffe, J has stated in those cases I have cited earlier. I apply them here. Natural justice is the rule of fairness and fair play. It is one of the fundamental constitutional requirements which must be observed by judicial authorities as well as administrative bodies and/or quasi judicial authorities, such as Departmental Heads, like the first defendant in this case. In my view, it would be an injustice to the officer affected if there is no reason for his dismissal, or he has not been invited to address on the question of penalty. It would be a breach of the rule of natural justice if the relevant authorities fail to accord those rights to an affected person, like the plaintiff in this case.

38. The Court has considered the defendants’ submissions, especially based on the case counsel has cited. However, it is obvious that counsel has failed to consider the defence in the old s.18 and the new s.18 of the Act. The case that he cited were determined prior to the Amendment coming into force in March 2002.

39. I reiterate that by the old s.18, the power of the Public Services Commission was merely to recommend a particular course of action, which I have already alluded to. And as the Courts have described in past cases, the recommendations are merely recommendations, but which must be given serious considerations.

40. In determining the issues arising under s.18 (3) of the Amendment, it will be necessary to refer to the whole of s.18 of the Public Services (Management) (Amendment) Act 2002 because in my view, the final decision of the substantive application will, in part depend on the Court’s interpretation and application of the Amendment. Therefore we shall now look at the new Section 18.

PART III. REVIEW OF PERSONNEL MATTERS

18. REVIEW OF PERSONNEL MATTERS IN RELATION TO
APPOINTMENT, SELECTION OR DISCIPLINE

(1) The Commission shall, following a complaint made by an officer to the Commission in accordance with Subsection (2), review a decision on a personnel matter relating to appointment or selection or discipline connected with the National Public Service, where that officer has been affected by the decision.

(2) A complaint referred to in Subsection (1) shall be -

(a) in writing; and

(b) made to the Commission by the officer within 60 days of the date on which the decision was made, but the Chairman may waive the time limit where the delay beyond the period of 60 days was beyond the control of the person seeking to make the complaint; and

(c) copied to the Departmental Head of the Department of Personnel Management by the officer making the complaint.

(3) The procedure to be followed in a review under this section is as follows:-

(a) the Commission shall summons -

(i) the Departmental Head of the Department of Personnel Management or his delegate; and

(ii) the Departmental Head of the Department in which the officer is or was employed, or his delegate, to represent that Department; and

(iii) the officer making the complaint, who may at his request and at his own cost, be represented by an industrial organization of which he is a member, or by a lawyer;

(b) the persons summonsed under Paragraph (a) shall make themselves available to appear before the Commission within 14 days of the date of summons;

(c) the Commission shall -

(i) consider all the facts relative to the matter, including -

(A) the views of the persons summonsed under Paragraph (a); and

(B) the personnel management policies of the National Public Service; and

(C) the cost implications of any decision which it may make; and

(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; and

(iii) give immediate notification of its decision to the persons summonsed under Paragraph (a);

(d) the decision of the Commission under Paragraph (c)(ii) -

(i) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and

(ii) shall become binding after a period of 30 days from the date of the decision.

41. Following the finding of guilt against the plaintiff, the first defendant imposed the ultimate penalty of dismissal. The Notice of Punishment, Exhibit "O" annexed to the affidavit of the first defendant sworn on 19 February 2004, after alluding to the charges and the facts, states:

has been sustained and by virtue of the powers conferred upon me by Section 52 (5) of the Public Services (Management) Act, I hereby impose the following punishment upon you:

You are terminated/dismissed from the Public Service.

42. I have already alluded to the Public Service Commission recommendations to the first defendant on 4 April 2003 therefore it is not necessary to cite them here again. I consider that that issue is one of law. It involves the proper construction and/or interpretation of Section 18 (3) of the Amendment.

42. On a careful consideration of s.18 (3) of the Amendment, it is my view that all the parties to this application have misconstrued and misconceived the correct interpretation of s.18 (3) (c) (ii) and (d) (ii) of the Amendment. The procedures for dealing with a review by the Public Service Commission are set out in Subsection 3. Whilst I agree that the Public Service Commission has not strictly complied with s.18 (3) (a) (ii) in not summonsing the first defendant, I consider that under the circumstances, it was not necessary and I will explain this later.

43. However, at this juncture, let me refer to s.18 (3) (c) (ii), because this is where I feel all the misconceptions arose. Section 18 (3)(c)(ii) of the Amendment states:

(c) the Commission shall -

(i) consider all the facts relative to the matter, including -

(A) the views of the persons summonsed under Paragraph (a); and

(B) the personnel management policies of the National Public Service; and

(C) the cost implications of any decision which it may make; and

(ii) make a decision to uphold, vary or annul the decision the subject of the complaint; (my emphasis)

44. First, it is my opinion that, this provision does not empower the Public Services Commission to make a recommendation to the Departmental Head concerned. There is no longer a power to recommend. Instead, the Public Services Commission has the power to uphold the decision, or vary the decision, or annul the decision of the Departmental Head. Nowhere is there a power to recommend anything to a Departmental Head. So the question to be asked is, where did the Public Services Commission derive its power under the Amendment to make those recommendations to the first defendant? I find that the Commission has no power to make a recommendation following a review of a personnel matter under the Amendment.

45. I reiterate that the Public Services Commission’s power in a review of disciplinary matters under s.18 of the Public Service (Management) (Amendment) Act 2002 is specific and clearly spelt out. It must either uphold or vary or annul the decision of a Departmental Head (my underlining). That power is mandatory. It has no power to make any recommendation.

46. Secondly, whilst the Public Services Commission had made the "recommendations", I have referred to, I consider that the "recommendations" amounted to annulling the decision of the first defendant. The basis for that appears on page 7 of the Commission’s letter of 4 August 2003 to the first defendant where it said in the third last paragraph:

47. The Secretary’s decision in relation to conviction and discipline also is invalid and null and void (my emphasis)

48. I am of the view that, that statement meant that the first defendant’s decision became a nullity. I hold that the Commission’s statement nullified the decision of the first defendant. I say there are three remedies available in a review by the Public Services Commission. These are already alluded to, however to emphasise that point, the remedies under s.18 (3)(c)(ii) are, "to uphold, or vary or annul" (my emphasis).

49. I consider that there are very good reasons for that. The Public Service Commission is the highest body which deals with discipline within the National Public Service. It is the body, which by law, hears and determines reviews of personnel matters. It must therefore, by law, be the final decision making body on personnel matters. That is the scheme of things in the National Public Service. Where a disciplined officer seeks a review from the Public Services Commission, the decision of the Public Services Commission is final by virtue of s.18 (3) (c) (ii), subject to the right of judicial review in the National Court.

50. Therefore it follows that, where and when the Public Services Commission has made a decision in its review jurisdiction, and has either uphold, or vary, or annul a decision of a Departmental Head, as it did in this case, that is the end of that personnel matter. Subject to the right of review in the National Court, everything pertaining to that disciplinary matter ends there and then. Either the disciplined officer seeks a judicial review in Court or the Departmental Head does. But the Departmental Head no longer has any right or power to exercise after the review by the Public Services Commission. 

51. That then raises the third consideration whether the Departmental Head, in this case, the first defendant, has any power to exercise after the Public Services Commission has made its decision. It is my judgment that he does not have any power to do anything further, or take any further action. I do not see any power in s.18 (3) that, the first defendant can refuse to accept the decision of the Public Services Commission. I am of the view that the first defendant’s response on 1 September 2003 to the Commission’s decision stemmed from his own misconception of s.18 (3) (d) (ii) of the Amendment.

52. My opinion is fortified by the fact that, prior to the 2002 amendment, the Public Services Commission had the power to make a recommendation under the old s.18 (2) (c). That power is stated in these terms:

(b) recommend the confirmation, variation or revocation of the decision in relation to the personnel matter in writing to the Departmental Head and to the Departmental Head of the Department of Personnel Management (my emphasis).

53. The 2002 Amendment removed that power to recommend, and in my view, that removal enables the Commission to act decisively in the terms of s.18 (3) (c) (ii). By that provision, it is not open to the Public Services Commission to make recommendations, but to be decisive and put an end to disciplinary proceedings by Departmental Heads to avoid unnecessary and prolonged disillusionment and instability in the Public Service. The Commission must therefore either uphold, or vary or annul the decision of a Departmental Head, the subject of review before it. The Public Services Commission, no longer makes recommendations, but must act decisively by either upholding the decision of the Departmental Head, or varying or annulling it. The Commission cannot recommend but makes a final decision on the matter.

54. In the light of that opinion, I find that the first defendant in the present case, had no power to refuse to reinstate the plaintiff. In refusing to accept the "recommendations" of the Public Services Commission, but maintaining his decision, he had exercised a power in access of jurisdiction. Accordingly, he acted ultra virus his powers. He had no power to refuse. Instead, he was obliged to reinstate the plaintiff because his decision had already been annulled by the Public Services Commission.

55. Furthermore, his argument that the Commission had made procedural errors, could not in my view, affect the decision of the Commission. I revert to this issue now as I said I would later.

56. There is no evidence, not even an iorta of evidence, that the first defendant had stated his reasons for dismissing the plaintiff. As I adverted to previously, the plaintiff had denied the charges and asserted that the Requisition Officer is responsible for checking the fraudulent Court judgments. In dismissing the plaintiff, the first defendant did not say how he arrived at that decision. He did not refer to any evidence or material which convinced him to make a finding of guilt. So what was the basis for his finding of guilt? As far as this Court is concerned, there is none.

57. Therefore, what further evidence or material would he have produced before the Public Services Commission? None. It is my view that the Commission sufficiently dealt with the matter on the basis of the materials before it. The fact that, it did not follow the procedure to summon the first defendant, which was a mandatory requirement, would not have served a useful purpose anyway, because he had provided no reasons for his decision, so what purpose would summoning him have served? The first defendant, with respect, cannot allege breach of natural justice, when he, in the first instance, failed to accord natural justice to the plaintiff.

58. I am of the view that the failure by the Public Services Commission in not summoning the first defendant, although a breach of mandatory requirement procedure, did not render its decision a nullity. I consider that the first defendant would have relied on the same materials he had at the time he decided to dismiss the plaintiff. The important point to note here is that he did not provide any reasons for his decision at the relevant time so what new materials would he have produced? Even if he had attended and produced new materials, that would have been a breach of natural justice to the plaintiff.

59. However, I consider that, despite the fact that the Commission did not comply with s.18 (3)(a)(ii), it nevertheless considered and relied on the materials which the first defendant had, and had relied on. So in spite of the absence of the first defendant, the materials he had in relation to the dismissing process involving the plaintiff were available to the Public Services Commission during its review.

60. It is also my view that, the defendants have further misconceived the proper interpretation of s.18 (3) (d) (ii) of the Public Services (Management)(Amendment) Act 2002. That provision states:

(d) the decision of the Commission under Paragraph (c) (ii) -

(i) shall be made within 90 days from the date of receipt by the Commission of the complaint, but this period may be extended by the Commission where the reason for the delay is beyond the control of the Commission; and

(ii) shall become binding after a period of 30 days from the date of the decision.

61. There is no right accorded to the first defendant to respond to the Public Services Commission’s decision. That provision is clear. Where did he get his right of reply or power to respond to the decision of the Public Services Commission as he did on 1 September 2003?

62. I consider that by inserting the 30 days time limit in ss (3) (d) (ii), that provision becomes much more ambiguous and confusing. If the intention of the Amendment was to revamp the entire process of dealing with disciplinary matters in the Public Service, why complicate things by inserting the 30 days time limit? What relevant purpose does it serve? I have not come across a ridiculous and ambiguous piece of legislation like ss 3 (d) (ii) of the Amendment. As I said earlier on, the decision by the Public Services Commission on a review of personnel matter must achieve finality. It is not necessary to put a time limit on effecting a decision of the Public Services Commission after a review. In my view, that provision must be amended so that the effect of the Public Services Commission decision takes place on the date it is given, or it is repealed to avoid confusion.

63. In any event, the period of 30 days does not mean that within that period, a Departmental Head could do anything or exercise any power, like the first defendant did, in the present case. The Amendment gives no right or power to a Departmental Head to do anything including a response to the decision of the Public Services Commission. In the present case, the first defendant did not have the power or right to write to the Public Services Commission and advise that he would not accept the Commission’s "recommendations". That is so because s.18 (3) (c) (ii) empowers the Commission to annul his decision. Once that decision has been annulled, the first defendant is obliged to comply with the decision of the Commission unless he seeks a review of that decision.

64. Like I have also adverted to, the Commissions power to make a recommendation under the old s.18 no longer exists. By virtue of the new s.18 (3)(c)(ii), the Commission now has power to uphold or vary or annul the decision of a Departmental Head in a review under the Act. It was a misconception by the Public Services Commission when it made four recommendations to the first defendant. The Commission no longer has the power to recommend a particular course. Its power under the Amendment now means that it has authority to effectively alter the decisions of a Departmental Head by upholding or varying or annulling it. I believe that there are very good reasons for the Public Services Commission being given that ultimate power to exercise in a personnel matter.

65. Sections 192 of the Constitution gives the Public Services Commission the power and jurisdiction to review personnel matters. Because one of its responsibilities is the efficient management of the National Public Service, the Departmental Head’s are not a law unto themselves. These decisions are subject to review by this constitutional independent Commission. I have no hesitation in saying that it is never the intention of the legislature to grant absolute power in personnel matters to a single Departmental Head like the first defendant in the present case. I consider that the first defendant, or all Departmental Heads for that matter, have no absolute and unfettered power to deal with personnel matters.

66. It is my view therefore that while the Commission has conducted a review and has made a decision, not a recommendation, in respect of that personnel matter, that decision is final, except the Departmental Head’s right to seek a judicial review. It is the scheme or requirement of the new Amendment that the power to recommend previously vested in the Public Services Commission be altered so that it is replaced by the power to uphold or vary or annul the decision of a Departmental Head. That is the scheme of the legislation, and contrary to the defendant’s counsel’s submissions, the Commission’s decision is final. I do not accept his submission that the Commission has no power or authority over governmental bodies. Constitutionally the Public Services Commission, has that special function to keep under control certain decisions of governmental bodies. See s. 192 (2) of the Constitution.

67. I do not believe that it was the intention of the legislature to empower a Departmental Head to exercise a power or right to refuse a decision of the Public Services Commission. The legislation gives no right or power to a Departmental Head to refuse to comply with a decision of the Public Services Commission in the exercise of its mandatory power under s.18 (3)(c)(ii) of the Amendment.

68. I find that the first defendant acted in excess of jurisdiction or ultra vires when he refused to reinstate the plaintiff. I prefer the submission by the plaintiff’s counsel. He has no power to exercise after the review by the Commission. By so refusing, he also acted unreasonably. It is obvious that the first defendant arbitrarily exercised a power he did not have therefore that can amount to an error of law as well.

69. I therefore make the following findings:-

1. The first defendant, Thaddeus Kambanei, acted contrary to and in breach of natural justice in failing to invite the plaintiff to address on penalty, when dismissal is not an automatic penalty.

2. The first defendant, Thaddeus Kambanei, acted contrary to and in breach of natural justice when he failed to provide sufficient reasons for dismissing the plaintiff.

3. The purported "recommendations" by the Public Services Commission on 4 August 2003 were not recommendations, but an annulment of the decision of the first defendant by virtue of the powers vested in the Public Services Commission in s.18 (3)(c)(ii) of the Public Services (Management) (Amendment) Act 2002.

4. Under the scheme of the new Amendment, (Section 18), the Public Services Commission no longer has a power to recommend. Its powers are more definite and mandatory. The Commission, by virtue of its review powers under s.18 (3)(c)(ii) of the Amendment, must either uphold, or vary, or annul the decision of a Departmental Head.

5. The first defendant, Thaddeus Kambanei, erred in law in refusing to reinstate the plaintiff because his decision had been annulled by the Commission and he no longer has a power to exercise following the review of the personnel matter by the Public Services Commission.

6. In refusing to reinstate the plaintiff, the first defendant, Thaddeus Kambanei, acted in access of jurisdiction and his decision was unreasonable, ultra virus and amounted to an error of law.

7. The first defendant, Thaddeus Kambanei, misconceived the law in assessing that the Public Services Commission still had the power to recommend under s.18 of the 2002 Amendment. He misconceived the law when he wrote to the Commission on 1 September and advised the Commission that he refused to reinstate the plaintiff.

70. The consequences of all these is that the first defendant’s refusal, has no basis in law, and must therefore be quashed.

71. In the end result, the Court will grant the plaintiff’s application by granting the order sought by way of a mandamus compelling the first defendant to reinstate the plaintiff.

72. I further make the following consequential orders:-

1. All findings by the first defendant in respect of the dismissal of the plaintiff are quashed.

2. That the plaintiff/applicant, Ambrose Vakinap, be reinstated to his former position as Assistant Secretary Advisory and Liaison forthwith.

3. That the plaintiff/applicant be restored and paid all his salaries, entitlements and benefits retrospective to 14 January 2003, the date of his dismissal.

4. The first defendant, Thaddeus Kambanei, through the second defendant, pay the plaintiff’s/applicant’s party and party costs.

5. The plaintiff/applicant has liberty to apply by giving two days notice, if the consequential orders are not complied with forthwith.

6. The orders are abridged.

Orders accordingly.

___________________________________________

Murray & Associates: Lawyer for Plaintiff
Paraka Lawyers: Lawyer for Defendants