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Kima v Kase [2021] PGNC 141; N8871 (16 June 2021)

N8871

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 451 OF 2019


BETWEEN:
REX PIM KIMA
Plaintiff


AND:
PASCOE KASE SECRETARY DEPARTMENT OF HEALTH
First Defendant


AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant


Waigani: Miviri J
2021: 19th May


PRACTICE & PROCEDURE – Originating Summons – Notice of Motion for Judicial Review – Disciplinary Process – PSC annulling decision terminating – Defendants not implementing PSC decision – Error of Law – Ultra Vires – Error in procedure – Materials relied sufficient – balance discharged – Judicial Review granted – Prerogative writs pleaded granted – Cost follow event.


Cases Cited:
Papua New Guinea Cases


David v Zurenuoc [2007] PGNC 37; N3146

Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797

Bon v Nakgai [2001] PGNC 96; N2123

Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Kilepak v Kaivovo, Secretary Department of East New Britain [2003] PGNC 91; N2402

Pacific Trade International Ltd v Waisime [2020] PGSC 20; SC1935

Lupari v Somare [2008] PGNC 121; N3476


Overseas Cases


Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.


Counsel:


T. Ilaisa, for Plaintiff
E. Bua, for Defendants


RULING

16th June, 2021

  1. MIVIRI, J: This is the ruling on the Plaintiff’s substantive Notice of Motion of the 05th November 2019 seeking pursuant to Order 16 Rule 2 (a) of the National Court Rules (NCR) an order in the nature of certiorari to bring into court and quash the decision of the First Defendant in dismissing him from the Department of Health and the Public Service.
  2. Secondly pursuant to Order 16 Rule 2 (a) of the NCR an order in the nature of Mandamus to compel the First Defendant to reinstate him to his position immediately prior to his termination or a position of similar grade.
  3. Thirdly pursuant to Order 16 Rule 2 (a) of the NCR an order in the nature of mandamus compelling the First Defendant to pay back his lost salary emoluments benefits and entitlements he lost as a direct result of his termination calculated from that date to the date of this decision on the substantive judicial review proceedings.
  4. Fourthly an order for damages for suffering hardship and inconvenience caused to him.
  5. The Costs of the proceedings.
  6. He relies primarily on his affidavit filed the 08th August 2019 and a supplementary affidavit filed the 20th September 2019. These establish that he was formally employed by the Department of Health as a Logistics officer or storeman at Badili medical drug storage warehouse until his dismissal as stated on page 28 of the Review Book. And that his duties involved managing the drug storage warehouse which included maintaining an inventory or records as to outgoing and incoming drugs including maintaining them as to their expiry dates to be used. On the 28th February 2017 he was verbally suspended for a period of seven (7) months upon allegations of trying to smuggle anti-malarial drugs.
  7. On the 18th August 2017 he was served his Notice of Charge to which he responded on the 24th August 2017 (page 32 Review Book). He waited for 33 days before receiving his notice of dismissal on the 12th October 2017. He then underwent the review process with Public Services Commission (PSC) who returned after hearing a decision on the 10th September 2018 annulling the decision of the First Defendant, and further directed for the reinstatement of the Plaintiff and back pay accordingly, pages 47 to 52 Review Book. This decision was delivered to the plaintiff on the 1st October 2019 by the PSC, review book pages 62 to 63.
  8. Since then, the First defendant has refused to or failed to implement the decision of the PSC.
  9. The defendants rely on the affidavit of Doctor Osborne Liko filed of the 16th November 2020.
  10. What is evident is that all material facts relating to the employment of the plaintiff with the Department of Health with the charging for the disciplinary offence and responses accommodating are not disputed substantially. There is agreement too by both sides that the Plaintiff was served his dismissal after more than 21 days after he responded to them. And that he waited for 33 days before he received the notice of dismissal on the 12th October 2017. And it is undisputed that the plaintiff filed complaint with the PSC which returned a decision in his favour which decision has not been implemented by the First Defendant.
  11. What is posed is, whether the termination or dismissal from the Public Service was unlawful given that plaintiff received his charges outside the 21 days required by the Public Service General Orders?
  12. Secondly whether the First Defendant’s refusal to implement the PSC decision dated the 10th September 2018 was unlawful?
  13. In response to the first question, relevant is Public Service General Order 15.35 which is in the following terms, “(a) The Officer must be notified of the decision within 21 days of the Departmental Head receiving the officer’s reply to the charge. (b) In the circumstances where there is no decision within 21 days, the charges are deemed null and void.” The facts set out above show that the plaintiff was not accorded compliance within the 21 days and received his notice of penalty 33 days later as dated above. It is clear that the application of the general order against these facts contradict, the effect of which is that the charges are deemed null and void, which has been highlighted by this court in David v Zurenouc [2007] PGNC 37; N3146 (7 February 2007). It also extends that the public Servant here the plaintiff must be informed of the decision of the Departmental Head within 21 days upon receipt of the reply of the employee, the plaintiff. That was not the case here and so the first defendant fell into error. It warranted that the dismissal was therefore in error of law and did not stand against the plaintiff. This ground was therefore in favour of the plaintiff.
  14. And it has been held that PSC decisions are binding pursuant to the compound reading of sections 13, 18 (6) (b) (ii) of the Public Service Management Act 2014 and section 191 (a) of the Constitution. This is clear from Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). The combined effect is that the Constitution seen out in the Act of Parliament the Public Service Management Act 2014 as amended is binding and if not acted on within is binding after a period of 30 days from the date of the decision: Bon v Nakgai [2001] PGNC 96; N2123 (29 May 2001).
  15. Here the decision of the public Service Commission annulling and reinstating the plaintiff has not been implemented by the First Defendant. He has disclosed no evidence as to why that decision has been rejected by the Department of Health. The affidavit of Doctor Osborne Liko reiterates the allegation initially against the plaintiff and tries to justify but reasons that the plaintiff contributed to the lateness and lapse in the duration past the time allowed. That all in all the department was within time and not as seen by the PSC in its decision.
  16. What has come from the Secretary Doctor Osborne Liko is in response to the PSC decision. It is after the fact and in response to the PSC decision. What evidence was before the PSC at its determination leading up was after the fact and fresh in time, when it has been glossed in preparation of what is asserted from the PSC. Therefore, the evidence of the PSC is accepted as they are an independent Constitutional office discharged with that function. And the Department of Health including its Secretary naturally would be defensive to their actions trying to protect what they have done against the plaintiff. I accept the evidence of the PSC and find that there was abuse as contended by the plaintiff. The Department was late in that it did not adhere to the 21 days as set out by the general order set out above. It breached it and there has been no satisfactory explanation to settle why the decision of the PSC has not been implemented. There are neither good reasons nor credible basis to set that decision not binding upon the First defendant.
  17. Primarily the plaintiff was never given any reasons why the PSC decision was not implemented when he served it on them. Because when that decision was delivered on the 1st October 2018 on the first Defendant no reply emanated. During September to December 2018 the plaintiff followed up with the First Defendant but to no avail. He was told to follow up with the Department of Labour and Employment (review book page 29).
  18. On the 22nd January 2019 the First defendant issued instruction to Human Resources manager for the department of Health to review the PSC decision and to provide advice in his reinstatement and back pay (review book pages 56).
  19. There is no evidence to dispel the balance in the contention in favour of as the First Defendant against the decision of the PSC which must be now implemented as it has the force of law: Asiki (supra). It is an error of law and a basis of breach of natural justice because no reasons are given. Because judicial review is all about the process and procedure that was mastered to arrive at the decision: Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) or Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Here procedure has led to the PSC and no error has been demonstrated nor any credible reasons given why it cannot be adhered to.
  20. It was clearly unreasonable within the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 sense, because no reasons has been disclosed as to why the decision from the PSC has not been adhered to. Including the position under section 18 (6) (b) (ii) of the Public Service Management Act 2014. It was a breach of procedure that did not stand the decision taken, including natural justice under section 59 of the Constitution which makes the annulling PSC as the position in law in this matter. In particular on what basis the Department of Health including the Health Secretary reached that decision not to adhere to the PSC decision: Kilepak v Kaivovo, Secretary Department of East New Britain [2003] PGNC 91; N2402 (2 May 2003).
  21. This in total spells that the Judicial review lies in favour of the plaintiff as pleaded. Because the effect of the material relied set out above discharges the balance of probabilities in his favour on all the grounds pleaded. And as to the remedies he will not be granted damages, as it will not be compatible in view of the award for loss of salaries emoluments and entitlements now made in his favour. Further damages must be particularized and pleaded: Pacific Trade International Ltd v Waisime [2020] PGSC 20; SC1935 (31 March 2020). General pleading will not suffice and here judicial review is concerned more with process set out to arrive at a decision than the consequences of that decision. It would not be appropriate given: Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008). Because there is no evidence as to whether or not he was suspended and on full pay no order is made in respect of that period starting 28th February 2017, when he was verbally suspended for a period of seven (7) months. It is unclear as to whether this was with pay or without. Therefore, no orders will emanate to incorporate that period. The same is so of the period from the18th August 2017 he was served his notice of Charge. Again, similar reasons are adopted and no specific orders will be made incorporating.
  22. The formal orders of the Court are:

Orders Accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Plaintiff

Office of the Solicitor Generals: Lawyer for First Defendants

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