N4643

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No 184 of 2012

BETWEEN:

John Patrick Nauro
Plaintiff

AND:

John Mapusa as Director General of National Narcotics Bureau
First Defendant

AND:

National Narcotics Bureau
Second Defendant

AND:

The State
Third Defendant

Waigani: Kangwia AJ
2012: 17 February & 02 April

JUDICIAL REVIEW – Review by way of mandamus to compel the first defendant to implement decision of the Public Service Commission- PSC mandatory powers to uphold, vary or annul decision under 2002 amendment discussed –Whether alleged impropriety or failure to comply with proceedings by PSC reviewable – Whether PSC decision binding on a departmental head

Cases cited
 Ambrose Vakinap v Thaddeus Kambanei & Ors (2004) N3094
Counsel

B. Boma, for the Plaintiff
S. Liria, for the Defendants

2nd April, 2012

1. KANGWIA AJ: The Plaintiff applied for an order in the Nature of Mandamus to compel the First Defendant to comply with the decision of the Public Service commission (PSC) of 10 February 2010 which reinstated the Plaintiff to his substantive position with the Second Defendant. Leave was granted on 21 June 2011.

2. The facts are that the First Defendant terminated the employment of the Plaintiff with the Second Defendant. The Plaintiff sought a review with the PSC. A PSC decision annulled the decision of the First defendant and directed the First Defendant to reinstate the Plaintiff to his substantive position with the Second Defendant. That decision has not been complied with. This application seeks to judicially review the decision of the First defendant with a view to compel the First defendant to comply with the PSC decision of 10 February 2010.

3. Three issues have arisen;

1.	Whether the PSC decision of 10 February is 2010 binding on the First Defendant?
2.	Whether the first Defendant shall give effect to the decision of the PSC of 10 February 2010.
3.	Whether the Court can hear issues of impropriety or failure to comply with the procedures by PSC to arrive at the decision the PSC made on 10 February 2010 in this application.

4. Before proceeding to consider the issues it is necessary to set out the legislative framework out of which the present case emerged. The legislation related to this case is the Public Service (Management) (Amendment) Act 2002. The procedures relating to PSC review of personnel matters are provided by s.18 and the relevant parts are as follows:

S 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) ...

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

 (a) the commission shall summons –

 (i) ...
 (ii) ...
 (iii) ...

 (b)...

 (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; 

(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)...

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

5. The provisions under s18 are mandatory in what the commission is required to do with the use of the enabling word "shall". That being the law, the issues that have arisen shall be considered in light of the legislative framework.

Issue 1: Whether the PSC decision of 10 February 2010, binding on the first defendant?

6. The answer to that question is yes.
Under Section 18 (3) (c) (ii) of the Public Service (Management) (Amendment) Act 2002 as shown above, the PSC has a mandatory power to uphold, vary or annul the decision the subject of a complaint.

7. The old Section 18 (2) (c) of the PSM Act prior to the 2002 amendment provided as follows:

Section 18 (2) the commission shall;

(c) 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.

8. The PSC's mandatory authority to recommend was removed under the 2002 amendment and no longer applicable to the present case. The PSC cannot recommend to the defendant. It is now empowered under the 2002 amendment to uphold, vary or annul the decision of the defendants. Using that power the PSC annulled the decision of the defendants. 

9. The PSC decision therefore is mandatory. It is also binding after 30 days pursuant to s.18 (d) but that is subject to the right of Judicial Review in the National Court. I am fortified on this view in what the court said in the case of Ambrose Vakinap -vs- Thaddeus Kambanei and the State (2004) N. 3094 where the Court held that;

"Pursuant to Section 18 (3) (c) (ii) of the Public Service (Management)(Amendment) Act 2002, the PSC has mandatory powers to uphold, vary or annul the decision of a Department Head. That power is not a power to make any recommendation".

10. Given that position of the law, the old Section 18 of the Public Service (Management) Act 1985 which empowered the PSC to make a recommendation no longer exists. 

11. It is now two years since the PSC decision of 10 February 2010. There is no evidence of any review of that decision through the PSC itself or the Court. In the absence of any decision on a review by the defendants the PSC decision of 10 February 2010 is binding on the defendants and stands to be implemented. 

Issue 2: Whether the First Defendant shall give effect to the PSC decision of 10 February 2010.

12. The answer is yes.

13. The decision of the PSC of 10 February 2010 is mandatory after the decision of the First Defendant was annulled under powers the PSC had pursuant to Section 18 (3) (c) (ii) of the Public Service (Management) (Amendment) Act 2002.

14. The First Defendant would be deemed to have failed to comply with the decision of the PSC. The only option open to the First Defendant was to seek a Judicial Review of the PSC decision if it felt aggrieved by such decision. The First defendant did not do that and the 30 day period of reprieve provided under s 18 (d) of the Act lapsed, effectively making the decision enforceable and compellable. 

15. Section 18 (3) gives no power or right to a departmental head to refuse to implement the decision of the Public Service Commission following its review of the Plaintiffs personnel matter.

16. The First Defendant's decision in refusing to implement or give effect to the PSC decision of 10 February 2010 has no legal foundation or basis; rather it amounts to actions which are clearly ultra vires his powers. 
 
17. To assert that condition precedents or non compliance of procedural requirements by the PSC were the basis of the refusal to implement the PSC decision is baseless and borders on illegality.

Issue 3: Whether the Court can hear issues, of impropriety or failure to comply with the procedures by the PSC to arrive at the decision it made on 10 February 2010, in this application?

18. The answer is No.

19. Firstly the PSC decision is not under review hence the Court cannot invoke its powers under Section 155 (4) of the Constitution to review it on its own volition.
 
20. Secondly the PSC is not a party in this proceeding. A stranger to the current proceeding cannot be put to scrutiny of the court without the benefit of a right to reply.
 
21. Thirdly the pleadings do not relate to procedural impropriety by the PSC. It would be akin to considering irrelevance on alleged impropriety and procedural errors by the PSC.
 
22. Fourthly the relief sought in these proceedings are not related to issues of procedural impropriety by the PSC. This proceeding seeks to compel compliance of a PSC decision that has been left unchallenged for over two years. It would be an abuse of process to hear issues of alleged impropriety and failure to comply with procedure by the PSC in this proceeding. 

23. The issue to be determined is whether this court should grant an order in the nature of mandamus to compel the defendants to comply with the PSC decision of 10 February 2010 which reinstated the Plaintiff to his substantive position.

24. The First defendant failed to implement the decision of the PSC on his own belief of prior procedural errors on the part of the PSC. The Defendants sat on their rights to have the PSC decision reviewed by an appropriate Tribunal. Any decision alleged to be seriously flawed should have been put up for a judicial review within a reasonable time. The defendants knew or ought to have known that the PSC decision was mandatory and binding on them.

25. It is my firm view that where a departmental head takes no action to judicially review a PSC decision within 30 days pursuant to s18 (3) (d) (ii) of the Public Service (Management) (Amendment) Act 2002, the decision would be deemed to have been accepted by the departmental head and stands only to be implemented. 
 
26. The alleged failures of the PSC which the defendants submitted in their response are not of any substance that would adequately prevent the grant of the orders sought by the Plaintiff. It would amount to taking into consideration matters not relevant to the motion on foot.

27. I find no legal basis upon which the defendants can refuse to implement the PSC decision.

28. For the foregoing reasons the orders sought by the plaintiff under items 1 and 3 of the Notice of Motion are granted in its entirety.

29. As to item 2 of the orders sought I decline to grant the full orders sought because it would include payments not gainfully earned. However, the plaintiff is entitled to payments between 13 March 2008 (the date he was put off the payroll) and 10 February 2010 (the date he was reinstated by the PSC). The balance of the period is denied on account of failure by the PSC to notify the defendants of its decision pursuant to s.18 (3)(c)(iii) of the Public Service (Management)(Amendment) Act 2002 which provision is also mandatory.

30. The formal orders therefore are;

1. John Patrick Nauro is reinstated to his former position with all entitlements and benefits between 13 March 2008 and 10 February 2010.

2. The First defendant shall have 14 days from service of this order to implement the PSC decision in its entirety.

3. The Plaintiff shall be at liberty to apply by giving 3 days notice if orders are not complied with.

4. Costs of this proceeding shall be borne by the defendants on a party to party basis.
______________________________________________________________

Boma Lawyers: Lawyers for the Plaintiff
Liria Lawyers: Lawyers for the Defendants