Jaran v Kerepia and The State [1987] PNGLR 16 (20 March 1987)

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ADMINISTRATIVE LAW - Natural justice - Public service - Transfer in public service - No right to be given reasons and to be heard - Public Services (Management) Act 1986, ss 23(1)(a), 45-48.

STATE SERVICES - Public services - Transfer of officers - Natural justice - No right to be given reasons and to be heard - Public Services (Management) Act 1986, ss 23(1)(a), 45-48.

The plaintiff was Deputy Commissioner of the Corrective Institutions Service, a level 2 position in the Public Service. In August 1986 the Commissioner wrote him a letter purporting to demote him to the position of Assistant Commissioner, a class 11 position and transferring him from headquarters at Bomana to Mt Hagen. In the letter he stated his reasons therefore as including: — displaying subversive behaviour, being disloyal to the chain of command, being involved in factions which generated conflict, being involved in disturbing activities, being not trustworthy and not having a professional attitude to the men under him. The plaintiff applied for judicial review.

(1) that, as under the Public Services (Management) Act 1986, an officer of the public service may be demoted only if found guilty of a disciplinary charge, the demotion from a level 1 position, the plaintiff’s actual substantive position, to Clerk Class 11 was beyond power.

(2) that under the Public Services (Management) Act 1986, a departmental head may, under s 23(1)(a), transfer an officer from one location to another without first giving that officer reasons for the transfer and a chance to be heard, even though the transfer is partly as a punishment for misconduct or poor performance.

This was an application for judicial review leave for which had previously been granted.

BREDMEYER J.: This is an application for judicial review, leave for which has already been granted by Cory J. It is a dispute between the applicant, Mathew Jaran, who was Deputy Commissioner of Corrective Institutions Service, and Pious Kerepia, the Commissioner. The facts are not much in dispute. It is convenient to state the facts in chronological sequence.

On 16 August 1984, Mr Jaran was appointed as Deputy Commissioner of the Corrective Institutions Service. It was a substantive appointment announced in the National Gazette. The position was level 1 in the public service, salary K11,080 pa.

On 15 February 1985, the position was re-classified to Deputy Secretary, Corrective Institutions, a level 2 position. By s 19(5) of the Public Service Act (Ch No 67) then in force the effect of the re-classification was that the office became vacant and the former occupant, Mr Jaran, became an unattached officer in his former classification (ie level 1). Applications for the reclassified position were never called. Mr Jaran was given the level 2 salary and continued to do the work of the Deputy Commissioner. Legally I consider he was but acting in that position.

In November 1985, he was acting Commissioner when that appointment was revoked and Pious Kerepia appointed Commissioner and Secretary of the Department of Corrective Institutions.

On 24 April 1986, the new Public Services (Management) Act 1986 (No 28 of 1986) came into force and repealed the Public Service Act (Ch No 67).

On 11 August 1986, Mr Kerepia purported to demote Mr Jaran to the rank of Assistant Commissioner (Clerk Class 11) and transferred him to Mt Hagen as Regional Commander Highlands Region. I say “purported to demote” because, in fact, Mr Jaran’s salary was not reduced to that of Assistant Commissioner. He dropped only from level 2 salary to level 1 salary. The reasons for the demotion and transfer are important and are contained in Mr Kerepia’s letter of 11 August 1986 which I quote:

With effect from 25 August 1986, you will revert to your substantive rank of Assistant Commissioner and take up the appointment as Regional Commander Highlands Region.

I have spoken to you on several occasions about your attitude which has been covertly disruptive and disloyal while being unwilling to express your opinions and grievances in the open forum of the Commissioner’s Executive Team (CET).

There is no place in the Senior Command Structure for an Officer who persistently displays this kind of subversive behaviour.

The Correctional Service is a Disciplined Service where loyalty and adherence to the Chain of Command is a must especially at this critical time of change and reorganisation.

Your involvement in factions which generated conflict with other officers was a concern of the CIS Senior Management before I assumed the position of Commissioner.

I had hoped that with the discussions we had and with the setting up of a forum for Senior Management and decision making these disturbing activities would cease and you would take your place as a loyal, competent and constructive member of the team as befitting your rank as Deputy Commissioner.

Now eight (8) months into this period of new management you would have had ample time to adjust and to demonstrate both your loyalty and co-operation to me as your Commissioner as well as your trustworthiness and professional attitude towards your men you are responsible for. The kind of professional attitude I refer to include aspects like respect for and strict adherence to the Chain of Command and disregard for personal or clan connections when acting in your professional role.

In spite of repeated warnings your actions have not complied with what is expected of a professional officer especially one of such senior rank who should be looked to by all as an example and a model for the men to emulate.

Your reassignment has been discussed fully with the Minister and the State Solicitor who both concur that the move is in the best interests of the Service.

The demands and challenge of your new role as the Regional Correctional Commander of the Highlands Region are many. I am confident that if you decide to put aside the types of undesirable activities discussed above and apply yourself fully and sincerely to your new responsibilities you have the capacity to re-establish your competence and ability to perform as a first class officer of the Correctional Service.

On 18 August Mr Jaran was ordered to vacate the Deputy Commissioner’s office and give up the government car assigned to him. He complied with these orders on 22 August.

On 20 August 1986, Mr Jaran filed an originating summons asking for leave for judicial review of the Commissioner’s decision. He succeeded ex parte before Cory J and on 29 August obtained an order, inter alia, “staying proceedings to which the application relates”. The order was never formally extracted by Mr Jaran’s lawyer. Thereafter Mr Jaran did not go to Mt Hagen but his pay, despite protests, was sent to CIS, Mt Hagen. He was given the title of Special Projects Officer based in Port Moresby and given a small cubicle office at headquarters. Because he felt humiliated by his demotion he ceased to wear his uniform and wore civilian clothes to work. A new man was appointed Deputy Commissioner whether acting or substantive I do not know.

Mr Enda who appeared for the applicant first argued that Mr Jaran held the position of Deputy Commissioner at level 2 on a substantive basis. He said Mr Jaran was the duly appointed Deputy Commissioner. The position was re-classified to level 2, Mr Jaran continued on in the position and got paid at level 2, therefore he must have held the position substantively. Mr Enda could not cite any authority for this view. I think the truth is otherwise. By s 19(5) of the Public Service Act, already quoted, upon re-classification the position became vacant and Mr Jaran became an unattached level 1 officer. He was no longer the Deputy Commissioner, simply an unattached level 1 officer.

Mr Enda’s next argument was that the Commissioner had no authority to transfer Mr Jaran because he said, no general orders had been passed under the Public Services (Management) Act 1986 which came into force in April 1986. General Orders were passed under the new Act but only with effect from 1 September 1986. The Commissioner had no express power to transfer a subordinate in August 1986 but I consider he had implied power from s 23(1)(a) of the Public Services (Management) Act which says that a Departmental Head is responsible for the general working and efficient conduct of his department. Section 2(1) of the Corrective Institutions Act (Ch No 63) provides that the Commissioner is responsible for the management and control of all corrective institutions, and this would, I think, include the power to transfer officers in the correctional service to staff those institutions.

Mr Enda’s next argument was that the demotion and transfer of Mr Jaran was not done for the better management of the corrective institutions but was done as a punishment. As such it was illegal, as Mr Jaran was never charged and given a chance to answer those charges. He was thus denied the protection afforded by the principles of natural justice. There are two points here: demotion and transfer. Regarding demotion, as I have said above, Mr Jaran was never substantively appointed to the re-classified level 2 position. As he was getting the level 2 salary he must have been acting. I consider the Commissioner had power to terminate that acting position and to allow Mr Jaran to revert to his level 1 unattached position. The Commissioner did not have the power to demote Mr Jaran to Assistant Commissioner (Clerk Class 11) as he purported to do in his letter of 11 August 1985 already quoted. In that letter he said, “With effect from 25 August 1986 you will revert to your substantive rank of Assistant Commissioner ...”. That was incorrect: Mr Jaran’s substantive rank was level 1 unattached officer and he could not be demoted below that unless found guilty of a disciplinary charge.

Mr Enda argued that the Commissioner had to comply with the principles of natural justice in transferring Mr Jaran from Port Moresby to Mt Hagen. The rules of natural justice are part of the English common law received into Papua New Guinea under Schedule 2 of the Constitution. By s 60 of the Constitution the courts are enjoined to give particular attention to the development of a system of principles of natural justice and administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and the Basic Social Obligations, and also of typically Papua New Guinean procedures and forms of organisation. Section 59 of the Constitution gives a brief description of natural justice and states that “[t]he minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly”.

At common law there are two principles of natural justice: that an adjudicator be disinterested and unbiased and that the parties be given adequate notice and opportunity to be heard. We are concerned with the second principle sometimes known as the audi alteram partem rule. Mr Enda cited me four local cases only two of which are relevant. The first is Iambakey Okuk v Fallscheer [1980] PNGLR 274. In that case Fallscheer was the General Manager of Air Niugini employed under a contract. The relevant section of the National Airlines Commission Act 1973 provided that he could be terminated for inability, inefficiency, incapacity, or misbehaviour. He was terminated by the Minister for Transport and Civil Aviation for inefficiency. It was held that the audi alteram partem rule applied, that the General Manager had a right to be given reasons for his dismissal and an opportunity to be heard in his own defence before being dismissed from office.

The second case is Raz v Matane and Others [1986] PNGLR 38. The Minister for Foreign Affairs and Trade decided to deport Raz and a Committee of Review appointed under the Migration Act (Ch No 16) confirmed that decision. Although McDermott AJ did not mention the phrase natural justice in the judgment, it is implied in it that the Minister and the Committee failed to give Raz a proper opportunity to be heard in his defence. I should add that Raz succeeded in that case largely under s 41 of the Constitution, that the Minister’s action was harsh and oppressive etc, which section was not argued before me.

Sections 45 to 48 of the Public Services (Management) Act 1986 relate to disciplinary offences. They provide a fair procedure whereby the officer is notified of the charge and given an opportunity to reply and is then punished if found guilty. Under s 46(5) the Departmental Head may punish by a fine, reduction in pay, reduction in classification, transfer to another office or locality, or dismissal from the public service. The transfer to another locality may be in addition to a fine, reduction in pay, or reduction in classification.

I do not think that it can be argued that, because s 46(5) allows a transfer as a punishment after a public servant has been found guilty of a disciplinary offence, a transfer cannot be made in other circumstances. I consider that a Departmental Head can transfer in other circumstances. Mr Enda’s argument is that the Departmental Head cannot transfer an officer for disciplinary reasons without first giving him an opportunity to be heard. In other words, he says that the principles of natural justice apply, or should apply, to a transfer in the public service (or correctional service) for disciplinary reasons.

The two cases cited by Mr Enda do not support that proposition. Fallscheer’s case related to a dismissal from employment and Raz’s case to a deportation. Neither case directly or indirectly suggests that the audi alteram partem rule should be extended to a transfer of an official.

At common law the audi alteram partem rule is not of an unlimited application. There is no rule that anyone who decides anything affecting the right of another must give that other a fair opportunity to be heard. As de Smith, Judicial Review of Administrative Action (4th ed, 1980), at 163 says, “A decision to increase the rate of income tax, to arrest a participant in an armed robbery, to pull down a building to prevent the spread of fire, may have serious adverse effects on those directly concerned, but there is no duty to give prior notice or opportunity to be heard”. Similarly, at 225, de Smith says that the courts will not interfere and imply the rule in certain disciplinary situations: eg, where a parent reduces a child’s pocket money or a schoolteacher gives a pupil a detention. The court’s stand is based on public policy and because the damage sustained is too trivial.

At 177 of his work quoted, de Smith says that the courts “have not yet afforded any procedural protection ... for a civil servant’s or soldier’s interest in not being subjected to a disciplinary transfer or being passed over for promotion”. No case is cited for that view but de Smith is himself a very highly respected text book writer.

Merricks v Nott-Bower and Anor [1965] 1 QB 57 concerned two policemen who were transferred at short notice because the Commissioner had received a secret report by a high-ranking outside policeman that these two policemen were “soft” on illegal SP betting in their area. The two policemen claimed that their transfers were disciplinary measures for matters on which they had not been given an opportunity to be heard and claimed declarations that the transfers were in breach of the principles of natural justice and of the disciplinary regulations. One of them also claimed damages for libel contained in the minute recommending his transfer.

The reported case in the Court of Appeal turned on privilege — whether the State could legitimately claim privilege for the report recommending the transfer. (In my case there is no such problem as the report, or the reasons for the transfer, are in evidence. They are contained in Mr Kerepia’s letter of 11 August 1986.)

At 67 Lord Denning said he thought the plaintiff had an arguable case that the power of transfer had been misused and that that they had been transferred as a punishment and not for the good administration and efficiency of the police force.

The applicant in this case is trying to extend the natural justice principle found in the dismissal cases to this transfer case. I have read Fallscheer’s case, Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, the leading House of Lords case on which Fallscheer’s case was based (again a dismissal case), and the relevant parts of de Smith, and see no justification for extending the principles of natural justice to the discretionary transfer of an officer.

I consider that there are strong public policy considerations in favour of not extending the common law principles of natural justice to a transfer. First of all, the consequences for the officer of a transfer to another town are not as serious as dismissal. He is still in the public service, he is still being paid. He may not want to go to that town, the town may be unattractive to live in, it may affect his children’s schooling, his own part-time studies, his wife’s employment, his sporting or social interests, or whatever. I am not saying that the consequences of an unwelcome transfer are trivial; but neither are they as serious as dismissal from the public service and therefore the court is less inclined to intervene.

Secondly, I consider the efficiency of the public service would be impaired if every transfer was open to scrutiny by the court. There must be many many transfers where the officer is transferred at least partly as a punishment. He is transferred because his conduct or performance is not good. In some cases his conduct would justify a charge under s 45; in other cases it may fall short of that but is sufficiently bad to justify a transfer. The affected officer could get a copy of the reasons for the transfer, eg, the report or reports on which the Departmental Head acted. These are not privileged on the authority of Merricks v Nott-Bower already cited. In most cases the Departmental Head, say in a big department like Health or Education, would have no personal knowledge of the work and conduct of the officer concerned. He would be guided by reports by intermediaries. It would stultify the working of the public service if the officer could challenge the allegations in those reports and address argument on why he should not be transferred.

In the third place I consider it would often be difficult to identify the motives for a transfer. Was the officer posted to Green River as an unofficial punishment for misconduct (ie, without laying a disciplinary charge) or simply for administrative reasons for example, because his performance was poor? The instant case is an example. Mr Jaran was transferred for the reasons given in Mr Kerepia’s letter of 11 August 1986. In an affidavit sworn 12 September 1986 Mr Kerepia said:

“3. The reason I transferred Mr Jaran was not to punish him but was to improve the working atmosphere at Corrective Institutions Headquarters and to allow him to improve his performance. I believe this is clear from my letter to Mr Jaran dated the 11th August 1986, a copy of which is annexed hereto and marked with the letter “A”. There was a third reason which I did not include in the letter and that is that due to a large number of break-outs at various prisons I was posting very senior staff to those prisons. Baisu prison at Mt Hagen was one of them. Assistant Commissioners were also posted to Buimo at Lae and Bomana.”

I think I should ignore the third reason — the need to post a senior officer to Mt Hagen because of the spate of break-outs. It may well have been in the back of Mr Kerepia’s mind as one of the reasons for the transfer but the prime reasons (I think the “white-hot” reasons as the letter is written with some passion) are contained in his letter. The reasons in that letter are mixed reasons of punishment and efficiency. He says in that letter that Jaran

Many of these allegations could be worded into offences under s 45 which, if proved, would result in punishment. At the same time they show (on Mr Kerepia’s view) an inefficient officer, one who will not obey orders, not a desirable man to have as No 2 in a large organisation. I consider Mr Kerepia’s motives for the transfer were mixed: one as a punishment to transfer Mr Jaran to a place he did not want to go; secondly, to get rid of an inefficient, disloyal deputy (as Mr Kerepia saw him) at headquarters, and thirdly, the hope that the transfer away from headquarters and Mr Kerepia (obviously the two men did not get along) would improve his work performance. See the last paragraph of his letter.

I should add that in considering the common law of England and whether I should extend the audi alteram partem principle of the dismissal cases to this transfer case I have considered the National Goals, Directive Principles and Basic Social Obligations and typically Papua New Guinea procedures and forms of organisation.

The fifth National Goal and Directive Principle par (1) is possibly relevant and helps the applicant. Leaving aside immaterial words it calls for:

“... a fundamental re-orientation of our attitudes and the institutions of government ... towards Papua New Guinean forms of participation, consultation, and consensus....”

As I understand Papua New Guinea, in a village or clan relationship or among wantoks, the members do often discuss matters and make consensus decisions. I do not believe that discussion and consensus exists with people who are not so related, eg, strangers and enemies. The public service could be equated more to a clan than a group of strangers. Despite the fact that that Goal or Principle might assist the applicant the public policy or public interests grounds I have mentioned above outweigh it, and I propose not to imply the right-to-be-heard rule into this public service transfer.

Finally, as the remedy of declaration is discretionary, I take into account the fact that there is an alternative domestic remedy available to Mr Jaran. He has the right under s 17 of the Public Services (Management) Act to apply to the Public Service Commission for a review of that decision. The review is to be completed within 60 days. He is there given a right to be heard: s 17(3). Mr Jaran did apply for such a review. He did so promptly on 19 August 1986. What happened to the review I do not know. It is possible that it got stalled when he went to Court and obtained the interim injunction freezing the transfer. The existence of this alternative remedy is one of the matters I have taken into account in refusing the declaration.

In summary I rule that the order to demote Mr Jaran below level 1 was beyond power. The order to transfer him to Mt Hagen was valid.

After hearing argument I order that the costs of this action be granted to the plaintiff.

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Papua New Guinea Law Reports

Jaran v Kerepia and The State [1987] PNGLR 16 (20 March 1987)

Papua New Guinea Law Reports - 1987