N8744

    PAPUA NEW GUINEA			
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 29 OF 2020
 
BETWEEN
SYLVESTAR KALAUT
Applicant

AND
DAVID MANNING, THE COMMISSIONER OF POLICE
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
  2020: 11th December & 2021: 2nd February  

JUDICIAL REVIEW – Review of decision – Termination of member of police – Grounds of – Ultra vires – Error of law – Breach of procedure – Unreasonableness 
JUDICIAL REVIEW – Procedure for discipline of member of police – Breach of procedure – Serving of show cause notice – No disciplinary charge served on member – Denial of right to be heard – Breach of natural justice – Misapplication of disciplinary procedure – Police Act, 1998 – Sections 23, 24, 25 & 26
Cases Cited:
Lamiller Pawut & Ors v. Public Services Commission & The State (2019) N7792 
Leo Nuia v. The State (2000) N1986
Peter Aigilo v. Sir Mekere Morauta & Ors (1999) N2103

Counsel:
Plaintiff in Person  
Ms. I. Mugugia, for the Respondents

JUDGMENT
2nd February, 2021
1.	MAKAIL, J:  The applicant has served the Royal Papua New Guinea Constabulary (“Police Force”) for twenty-four years as a career Police Officer and Assistant Commissioner of Police responsible for the Human Resource Division since October 2015 until he was served with a Notice of Termination issued by the first respondent on 19th March 2020 and served on him on 25th March 2020.   
2.	As an Assistant Commissioner of Police, he signed a contract of employment with the Police Force which is due to expire on 9th October 2021.  He was terminated by the first respondent for “gross insubordination”.  He seeks review of the first respondent’s decision to terminate him and relies on four grounds, these being: 
	(a)	Ultra vires,
	(b)	Error of law on the face of record,
	(c)	Breach of procedure under the contract of employment, and
	(d)	Wednesbury principle of unreasonableness.

3.	I have heard the applicant and Ms Irene Mugugia of counsel for the respondents and read the documents compiled by the applicant in the review book filed 8th October 2020 and his written submissions filed 8th December 2020.  I do not wish to repeat them suffice to say that the respondents’ counsel does not oppose each of the grounds of review but contest the order sought by the applicant for reinstatement on the ground that the applicant’s reinstatement will be detrimental to good order and administration of the Police Force.  I reject this submission because it is not supported by evidence even though directions had been issued for the respondents to file responding affidavits and further, they have had ample time to file responding affidavits since the grant of leave for judicial review on 8th September 2020.

4.	Subject to the rules of admissibility of evidence, I have read the affidavit of the applicant sworn and filed on 17th July 2020 and make the following findings: The first respondent called a meeting with senior officers including the applicant on 10th December 2019 in his capacity as the newly appointed Commissioner of Police.  During the meeting the applicant asked the first respondent about his formal appointment. The applicant said he was polite and sincere and had no intention to cause disharmony or dissatisfaction in the Police Force when he asked this question.

5.	The first respondent responded that the formalities of his appointment were in the process of being finalised.  The applicant further asked the first respondent to produce the National Executive Council decision and Official Gazettal Notice of his appointment.  He said these were requisite documents to verify the first respondent’s appointment as Commissioner of Police.  They were also necessary to update the data to reflect the change in position of the first respondent and new salary adjustments.  The other reason was that, he also had applied for the position of Commissioner of Police and wanted to know if the first respondent was legitimately appointed. 

6.	On 2nd January 2020 the applicant was served a suspension notice by the Assistant Commissioner and acting Deputy Commissioner of Police Mr Donald Yamasombi.  This was the first suspension notice.  The ground for suspension was that, he had asked the first respondent about his appointment as Commissioner of Police.  Such conduct amounted to insubordination.  The suspension notice stated that the suspension was for twenty-one days.

7.	Accompanying the suspension notice was a minute signed by the first respondent dated 27th December 2019 which stated “SHOW CAUSE NOTICE/MISCONDUCT”.  It also stated that the applicant is to “Show Cause in writing within 7 days from the date of this Notice why disciplinary action should not be taken against you”.  It concluded that “If you fail to submit an explanation by the stipulated date, a decision will be taken without further reference to you”.  The applicant did not respond to the show cause notice.

8.	On 27th January 2020 the applicant was served another suspension notice dated 24th January 2020 by Mr Yamasombi.  This is the second suspension notice.  Its grounds were that, first the applicant went live on public media broadcast and criticised the decision of the top management to make routine transfer directive affecting senior officers around the country including him.  Such conduct amounted to insubordination.  Second, misappropriation of Police Pension Funds.  Again, the suspension notice stated that the suspension was for twenty-one days.  He denied the allegations or grounds of suspension but it is not clear if he responded to them.

9.	On 26th February 2020 Mr Yamasombi served a further suspension notice.  This was the third suspension notice and the grounds were exactly the same as the grounds in the second suspension notice.  The period of suspension was twenty-one days.

10.	On 4th March 2020 the locks on his office door at Police Headquarters, Konedobu were changed and two days later, on 6th March 2020 Mr Yamasombi served a further suspension notice.  This was the fourth suspension notice and again, with the same grounds as those in the second suspension notice.  The period of suspension was twenty-one days.

11.	As Assistant Commissioner of Police, the applicant signed a contract of employment with the Police Force for a three-year term commencing 10th October 2018 and ending 9th October 2021.  On 25th March 2020 the applicant was served a termination notice by the first respondent dated 19th March 2020 effective forthwith.  Parts of the termination notice reads:

“Your termination has been decided on the grounds that you have breached the following obligations regarding your employment with the Constabulary under your Contract of Employment Clause 2 (a) (b) (e) (f), 12 and 13 thereby involving Schedule C4 (1) (d) (e) and (i) of your Contract of Employment Termination Provisions.

You are given an opportunity to respond to the allegations after a Show Cause Notice was issued to you in which you choose (sic) not to respond.  Your termination has been deemed necessary as I have determined that you have engaged in the act of ‘gross insubordination’ which is a serious violation of the Constabulary’s Code of Conduct, thus I as Commissioner have lost confidence in you.  Consistent with Clause 17 of your Contract of Employment and in accordance with Section 133 of the Police Force Act, I regret to inform you that your employment and contract is terminated”.

12.	On 3rd December 2020, the Court granted a stay order of the first respondent’s decision to terminate him until the determination of the application for judicial review. 

Ultra vires

13.	I accept the applicant’s submission that first, he was not administratively charged with a disciplinary offence(s) under the Police Act, 1998.  Second, the various clauses of the contract of employment relied upon by the first respondent to terminate him have no application.  Despite this, the first respondent relied on clause 2(a), (b), (e), (f), 12 and 13 of Schedule C4(1)(d), (e) and (i) of the contract of employment to issue a show cause notice and proceeded to terminate him after he did not respond to the show cause notice.

14.	I will talk more on the procedure for discipline under the Police Act when I consider the second ground of review on error of law.  For now, I am satisfied that the first respondent misapplied the procedure for discipline under the contract of employment in this way:

(a)	There is no express provision in the contract of employment for the first respondent to invoke and issue a show cause notice to the applicant in the manner as he did.  This is where the first respondent lacked jurisdiction to issue a show cause notice to the applicant.  On the other hand, the applicant had no obligation to respond to the show cause notice.  When the first respondent assumed that the applicant was obliged to respond to the show cause notice and when the applicant did not, he proceeded to terminate the applicant.  This is where he exceeded his power.

What is more serious is that the show cause notice stated that “……this suspension is not a punishment.  It is to facilitate the Management Investigation into the alleged misconduct and also allow you the opportunity to present your case”.	The next three suspension notices did not carry with them a show cause notice.  There is no evidence of a Disciplinary Officer appointed to investigate and then, lay disciplinary charge(s) against the applicant pursuant to clause 14 of the contract of employment.  This is another example where the first respondent exceeded his power.

(b)	Termination for cause as a result of breach of contract by the officer, as determined by the Commissioner.
The procedure for termination under the contract of employment is prescribed in Clauses 12, 13, 14, 15, 16, 17 and 18.  For the benefit of the parties, these clauses are set out in full below:
	“	Termination for Cause
12.	Pursuant to termination under Clause 1(d), in the event that credible evidence has been provided to the Commissioner to demonstrate that the Officer has committed a disciplinary offence as described under the Police Act then the Officer’s immediate supervisor or a Disciplinary Officer appointed by the Commissioner, shall initiate the suspension procedure hereunder for the purposes of conducting an official investigation.
13.	Thereafter, in the event that the Disciplinary Officer establishes that an offence has been committed the Disciplinary Officer shall invoke the disciplinary procedure hereunder, and charge the Officer with a disciplinary offence, as delineated in the Act.	
14.	The procedures established by the Standing Order governing Employment Contracts under Section 133 of the Police Act shall apply, and in the event that the Contract is terminated for cause, no payments are to be made in respect to ex-gratia benefits or gratuities which are to be forfeited to the Police Force.
15.	Dependent upon the seriousness of the offence, the Commissioner shall determine whether or not payment of money in lieu of notice and normal service related benefits shall be made to the Officer on termination, subject also to any surcharge arrangements that may be in place to recover monies owed to the Police Force.
	Disciplinary Suspension for Investigatory Purposes
16.	In the event that evidence is presented to the Disciplinary Officer of serious misconduct by the Officer, which may require the paying of disciplinary charges, the Disciplinary Officer shall determine whether or not grounds for suspension exist.
17.	Grounds for suspension relate to allegations of serious offences listed under the Act, and having determined such grounds, the Disciplinary Officer may suspend the Officer on full pay and shall expedite an investigation of the allegation in the shortest possible time.
18.	In the event that the allegations are found to have substance, supported by credible evidence, then the Disciplinary Officer shall invoke the disciplinary procedure hereunder:
(a)	Where the Officer is alleged to have committed a serious offence as defined under the Act, the Disciplinary Officer shall lay charges against the Officer in writing with the offence(s) allegedly committed and thereby enable the Officer to reply.
(b)	The Officer shall formally respond to the charge(s) by writing to the Disciplinary Officer within 14 days of the charges(s) being laid and the Disciplinary Officer shall seek legal advice on the Contractual position and shall make a recommendation to Contract Review Committee established by the Standing Orders, as to the guilt of the Officer or otherwise.
(c)	The Commissioner having considered the recommendation of the Contract Review Committee and the Officer’s response and having verified the legal position shall determine whether or not to terminate the Contract.
(d)	The decision of the Commissioner under the Contract shall be final, and the Officer may seek redress through the Papua New Guinea Courts of Law in the event that he or she considers the disciplinary action to have been applied improperly or unfairly.
(e)	Notwithstanding the above procedure, the Disciplinary Officer may at any stage conclude the disciplinary proceedings and impose a penalty short of termination, by way of a Caution for the Officer to improve future performance”.
Having being satisfied that evidence demonstrated that the applicant has committed a disciplinary offence(s), the first respondent shall appoint a Disciplinary Officer who shall initiate a suspension procedure for the purposes of conducting an official investigation.  From the facts as found, the applicant was suspended not once but four times between late December 2019 and March 2020.  
However, the applicant was not charged with a disciplinary offence(s) and replied to the charge(s) prior to the decision to terminate him.   The first respondent’s failure to comply with the procedure outlined in clauses 13 and 18(a) to (d) (supra) not only constituted breach of clause 18(a) & (b) of the contract of employment but an abuse of power.
(c)	Grounds of ill health or infirmity, as certified by at least two medical practitioners acceptable to the Commissioner.
There was no evidence that the applicant was ill or suffered some form of infirmity for the first respondent to rely on either of these grounds to terminate him.  The first respondent erroneously applied this clause of the contract.  It is misconceived.  This adds to the unjustified and abuse of power by the first respondent to terminate the applicant.
(d)	In the interest of the State (the Police Force), as determined by the Contract pursuant to the Act.
While clause 1(i) of the contract of employment provides for termination of the applicant on grounds of “in the best interest of the State (the Police Force)”, the phrase in the best interest of the State has been the subject of contention in many cases that the Courts have dealt with.  There is no definition of the phrase in the Police Act or elsewhere.  In Peter Aigilo v. Sir Mekere Morauta & Ors (1999) N2103 the National Court was critical of this phrase where it observed:
“It is common knowledge now that the use of the concept of “in the best interest of Papua New Guinea” or “in the best interest of the State” or in the best interest of the nation” in our country has only benefited those using it and not the nation and her people.  It has been used almost indiscriminately following a change in government.  Important Constitutional officer holders, Departmental Heads and heads of statutory corporations and other contract officers have been readily changed to suit political and personal interests more than “in the interest of Papua New Guinea”. Millions of Kina have been paid out for breach of contract and that has significantly contributed to the bad financial position, we as a nation, is in today.  In my view, this has been possible because of the absence of any definition given to the concept or phrase under consideration”.
If the first respondent was conferred power to terminate the applicant in the best interest of the State (the Police Force), the reason he has offered that the applicant’s conduct in questioning his appointment as Commissioner of Police amounted to insubordination is really a borderline case and one would think that given the applicant’s official and personal interests in the position, was entitled to ask the first respondent to verify his appointment.  On the other hand, the first respondent was entitled to be given the benefit of doubt and accorded the courtesy until the formalities of his appointment were finalised.  I make no finding on this ground.  The other reason for not responding to the show cause notice is, inconsequential.
(e)	Legitimate Expectation – Breach of Natural Justice
As the first respondent had adopted a procedure contrary to clauses 12 to 18 (supra), the consequence is that the applicant was not given an opportunity to be heard in his defence and this constituted a breach of natural justice under Section 59 of the Constitution.
Error of law on the face of record
15.	I accept the applicant’s submission that the first respondent did not follow the disciplinary procedure prescribed under the Police Act.  The procedure is outlined in Section 20 (Disciplinary Offences), Section 23 (Dealing with Serious Offences), Section 24 (Determination of Charge), Section 25 (Imposition of Penalty where Charge Sustained) and Section 26 (Penalties for Serious Offences).  As to penalties, one of them is termination from the Police Force (Section 26(1)(g)).  
16.	The procedure involves the identification of the disciplinary offence(s), laying of disciplinary charge(s) against the Officer, receipt of the reply by the Officer and decision by the Commissioner of Police.  In this case, no disciplinary charge(s) were laid against the applicant in addition to lack of identification of the disciplinary charge(s).
17.	The service of disciplinary charge(s) on the Officer is not an option.  In Lamiller Pawut & Ors v. Public Services Commission & The State (2019) N7792, the National Court observed:
“In this case while the first plaintiff was possessed with the requisite power to suspend and charge the second defendant for disciplinary offences, he must observe the requirement to serve the disciplinary charges on the second defendant.  The requirement to serve disciplinary charges cannot be overstated.  It is the foundation of the entire disciplinary process because it is the beginning of the process whereby a finding of guilt or otherwise is dependent upon and at the end of the process……………………………..That is why the principles of natural justice require that a public official exercising disciplinary powers such as the first plaintiff must accord the officer, in this case, the second defendant the right to be heard by serving the disciplinary charges on him.  This requirement may be stipulated in a contract of employment or statute and must be complied with by the disciplinary body or officer”.
18.	The failure by the first respondent not to only identify the disciplinary offence(s) to which the applicant had allegedly committed but serve the disciplinary charge(s) on him constituted an error on the face of the record and must be corrected.
Breach of procedure under the contract of employment
19.	I also accept the applicant’s submission that in terminating him as Assistant Commissioner of Police the first respondent breached the prescribed procedure under his contract of employment.  I also agree with the applicant’s submission that the contract of employment takes its legal origin from Section 133 of the Police Act.  Section 133 provides for employment contracts and members of Police who can be employed under an employment contract.  It follows that the contract of employment supplements and complements the Police Act and the grounds for termination do not operate independently from the contract of employment but inter-dependently with the provisions of the Police Act and the Police Standing Order governing employment contracts for ranks and positions below Deputy Commissioner’s level.
20.	To supplement and complement the Police Act on the disciplinary offence and procedure for discipline, clauses 12 to 18 of the contract of employment provide for the disciplinary procedure for the first respondent to adopt to discipline the applicant where the applicant has allegedly committed a disciplinary offence(s).  The breaches of the disciplinary procedure have been outlined under the grounds of error of law at [15] to [17] (supra) and are restated hereunder with one or two additions:
(a)	There was no Disciplinary Officer appointed to investigate and discipline the applicant by way of serious disciplinary charge(s) that shall warrant termination pursuant to Section 19 of the Police Act.
(b)	The applicant was not charged with any offences listed in Section 20 of the Police Act.
(c)	The applicant was not charged by way of serious disciplinary charge(s) pursuant to Section 23 of the Police Act.
(d)	The applicant was not given an opportunity to reply to any serious disciplinary charge(s) prior to his termination pursuant to Section 25 of the Police Act.
(e)	There was no adjudication of any serious disciplinary charge(s) against the applicant that gave rise to his termination which breached Section 25 of the Police Act.
(f)	The applicant’s contract of employment was not referred to the Contract Review Committee to deliberate on any recommendation for the termination of the Applicant in accordance with the Police Standing Order governing employment contracts for ranks and positions below Deputy Commissioner’s level.
21.	All in all, I accept the applicant’s submission that the first respondent’s decision to terminate his employment is in complete breach of the contract of employment and unlawful.  The decision must be quashed: see Leo Nuia v. The State (2000) N1986.
Wednesbury principle of unreasonableness
22.	As the applicant relies on the first respondent’s personal interest in the position of Commissioner of Police as the motive for his termination, it is also arguable that the first respondent was entitled to be accorded the courtesy by the applicant until the formalities of his appointment were finalised at the material time.  For these reasons, I make no finding on this ground.

Relief

23.	It now remains whether the applicant should be granted the relief sought in the Notice of Motion filed pursuant to Order 16, rule 5 of the National Court Rules, these being declarations and reinstatement including payment for loss of monetary and contractual entitlements back-dated to date of termination.  While he does not seek certiorari, the order sought for any further order that the Court deemed fit and proper is sufficient to tailor an order in the nature of certiorari. 

24.	Though not pleaded in the Notice of Motion the applicant submits that in the event that an order for reinstatement is granted, two additional orders should be granted. First, that he should not be restrained, obstructed and hindered in any manner by the first respondent, his agents or servants to comply with the order of the Court.  Second, he be at liberty to return to Court if the orders of the Court are not complied with by the first respondent, his agents and servants.  I will not grant these orders because first, they are pre-emptive of what the first respondent may or not do in future.  Second, Court orders are meant to be obeyed by the parties and those directed by the Court.  In the event of default or non-compliance, the aggrieved party is at liberty to bring contempt proceeding against the defaulting party at anytime.

Order

25.	Having said that, the applicant has established that the first respondent’s decision to terminate him from the Police Force is unlawful and that there is no evidence of any impediment to his claim for reinstatement.  Therefore, he is granted the following orders:

(1)	Pursuant to Section 155(4) of the Constitution, Order 16 rule 1 of the National Court Rules, an order that the application is granted to review the decision of the first respondent dated 19th March 2020 to terminate the applicant from employment as Assistant Commissioner of Police.
	
(2)	Pursuant to Section 155(4) of the Constitution, Order 16 rule 1 of the National Court Rules, an order in the nature of certiorari that the decision of the first respondent dated 19th March 2020 to terminate the applicant from employment as Assistant Commissioner of Police be quashed.

(3)	Pursuant to Section 155(4) of the Constitution, Order 16 rule 1 of the National Court Rules, an order in the nature of a declaration the decision of the first respondent dated 19th March 2020 to terminate the applicant from employment as Assistant Commissioner of Police is unlawful, null and void.

(4)	Pursuant to Section 155(4) of the Constitution, Order 16 rule 1 of the National Court Rules, an order in the nature of a mandatory injunction that the applicant be reinstated to the position of Assistant Commissioner of Police, Human Resources, forthwith.

(5)	Pursuant to Section 155(4) of the Constitution, Order 16 rule 1 of the National Court Rules, an order that any loss of monetary and contractual entitlements to the applicant be paid and back-dated to the date of termination of 19th March 2020, forthwith.

(6)	The respondents shall pay the applicant’s costs of the proceeding, to be taxed, if not agreed.

(7)	Time shall be abridged.

Judgment and orders accordingly.
________________________________________________________________Solicitor General: Lawyers for Respondents