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Agen v Secretary, Department of Lands and Physical Planning [1998] PNGLR 303 (6 February 1998)

[1998] PNGLR 303

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LUCY AGEN

V

SECRETARY, DEPARTMENT OF LANDS & PHYSICAL PLANNING; AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

WAIGANI; GOROKA: SAWONG J
16 December 1997; 6 February 1998

Facts

The applicant was employed in the Department of Lands & Physical Planning at the time her services were terminated by the Secretary of that Department. She was found guilty of an alleged serious charge, suspended and subsequently dismissed. She was not given an opportunity to address on penalty after she was convicted.

Held

1. That the disciplinary charges laid against the applicant and her subsequent dismissal were null and void ab initio, in that there was no legal basis upon which such charges could be properly laid against her.
   
2. That there was a breach of the principles of natural justice in that the applicant was not afforded the opportunity to be heard on the penalty imposed. Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122, followed.
   

Papua New Guinea cases cited

Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.

Niggints v Tokam [1993] PNGLR 66.

Yawip v Commissioner of Police [1995] PNGLR 93.

Counsel

A Kongri, for the applicant.
No appearance for the respondents.

6 February 1998

SAWONG J. This is an application for judicial review of the decision of the Secretary of the Department of Lands & Physical Planning (the first respondent) made on 28 August 1995 upholding his own decision made on 12 August 1993 terminating her services from her employment in the Public Services.

At this juncture, it is to be noted that despite being served with all relevant and material documents neither of the respondents have filed any documents to defend the proceedings. Indeed no answering affidavits have been filed nor any counsel appeared on their behalf at the hearing of this matter.

The only evidence is that from the application to which I will refer later. The undisputed facts are as follows. The applicant had been employed in the Public Services in various capacities and with various Departments of the Public Service since 1973. At the time of the termination of her services on 12 August 1993, she was employed in the Department of Lands & Physical Planning (DLPP). She has been with that particular Department for some eight (8) years.

On or about the 4th February 1988, she and her then husband applied for and were granted a lease over a vacant or unimproved piece of land described as Allotment 1 Section 47, Hohola. The lease was for a term of 99 years.

It is not clear from the evidence, but sometime after the lease was granted she and her husband sold the land without effecting any improvements on it.

Thereafter on 6 October 1992, the applicant was charged by the first respondent for selling an undeveloped land, contrary to s 36 of the Land Act. She was also simultaneously suspended from performing her duties without pay also effective from 6 October 1997.

She was required to reply to the charge within 7 days from the receipt of the charge. She was served with charge paper and the notice of suspension on the 26 October 1992. On the same date she made a written reply to the charge. In her reply she stated inter alia - that the charge was not a proper one, as it did not relate to the performance of her duties.

She waited for ten months without any response from the first respondent. Unbeknown to her, her services had been terminated as of 12 August 1993. She became aware of this on 4 November 1993 when she received her termination notice.

Upon receipt of her termination notice, the applicant on 4 November 1993 lodged an appeal to the Provincial Lands Manager in Kundiawa. The Provincial Lands Manager forwarded the said appeal to the first respondent and a copy of it was sent to the Public Service Commission.

The Public Service Commission reviews all the decision of the first respondent. The Commission recommended that the decision of the first respondent of 12 August 1993 to dismiss the applicant be revoked. It also recommended that she be reinstated to her previous substantive position with her full entitlements retrospective to 12 August 1993.

The first respondent refused to accept and act on the recommendations of the Commission.

The applicant relies on essentially two affidavits, which she deposed to, and her oral sworn evidence at the hearing. The gist of her evidence contained in her affidavits is already set out in the preceding pages of this judgement.

One aspect of her evidence, which came out during her oral evidence was that, after she was found guilty, she was not given any opportunity to make submission on penalty. This bit of evidence is not disputed in any manner or form at all, for there is no evidence from the respondents. Her evidence therefore remains unchallenged and undisputed. In the absence of any evidence to the contrary, I accept her evidence on this aspect.

The applicant’s counsel has raised three grounds for the review. These are;

1. That the first respondent exceeded its powers or did not follow or comply with statutory procedures set out by the enabling statute,
   
2. That the decision to dismiss the applicant was contrary to the principles of natural justice.
   
3. The decision was wrong in law.
   

The principles relating to judicial review of decisions, administrative disciplinary authorities are quite well settled in this jurisdiction. Judicial review is available where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers: see Kekedo v Burns Philip (PNG) Ltd [1988-89] PNGLR 122.

Counsel for the applicant has made comprehensive submissions on each of the grounds in his written submissions. I do not propose to deal with each of the grounds nor the submissions in any great detail.

It is evident from the undisputed evidence and the submissions that the applicant was not charged under a proper statutory provision. She was charged with committing an offence under s 47 of the Public Service Management Act 1986 for selling an unimproved piece of land which was alleged to have been in breach of s 36 of the Land Act. In the notice of punishment under s 47 D of the Public Service Management Act, the first respondent considered the applicant "guilty of disgraceful or improper conduct in your official capacity or otherwise".

It is quite apparent that the charge that was laid and contained in the charge paper was different from the charge set out in the form headed "Notice of Punishment--". The two different documents contained two different and distinct charges.

The applicant was charged under s 47 of the Public Service Management Act 1986 within the meaning of s 45 of that Act. It is necessary to set out those provisions, which read as follows.

PART XIII. - DISCIPLINE

45. DISCIPLINARY OFFENCES.
    

An officer who -

(a) commits a breach of this Act; or

(b) except as authorized in the course of official duty, uses or divulges, directly or indirectly, any confidential information concerning public business or any matters of which he has official knowledge; or

(c) except with the consent of the Head of State, acting on advice, or of an officer authorized for the purpose by the Head of State, acting on advice, publicly comments on administrative action or the administration of a Department; or

(d) wilfully disobeys or disregards a lawful order made or given by a person having authority to make or give it; or

(e) is negligent or careless in the discharge of his duties; or

(f) is inefficient or incompetent from causes within his own control; or

(g) uses intoxicating liquors or drugs to excess; or

(h) solicits or accepts a fee, reward, gratuity or gift in connection with the discharge of his official duties (other than his official remuneration); or

(i) is guilty of disgraceful or improper conduct in his official capacity or otherwise; or

(j) having taken an oath or made an affirmation in the form in Schedule 1, does or says anything in violation of it; or

(k) seeks the influence or interest of any person in order to obtain promotion, transfer or other advantage; or

(l) supplies to another officer, for use for any purpose referred to in Paragraph (k), a certificate or testimonial relating to official capacity or the performance of official duties,

is guilty of a disciplinary offence and is liable to be dealt with and punished -

(m) in the case of a Departmental Head - under Part VI; and

(n) in the case of an officer other than a Departmental Head - under this Part.

47. DEALING WITH SERIOUS DISCIPLINARY OFFENCES

(1) Where there is reason to believe that an officer other than a Departmental Head has committed a disciplinary offence other than an offence that may be dealt with under Section 46, the provisions of this Section apply.

(2) The officer may -

(a) be charged by his Departmental Head or an officer authorized by the Departmental Head to lay charges under this Division; and

(b) if it is considered that the charge is of such a serious nature that the charged officer should not continue in the performance of his duty, be suspended by -

(i) his Departmental Head; or

(ii) in case of emergency - an officer authorized by the Departmental Head to lay charges under this Division.

(3) Suspension may be effected before, at the time of or after the laying of the charge, and may be removed at any time by the Departmental Head concerned pending determination of the charge, and where the charge has not been sustained shall be lifted immediately on a finding to that effect.

(4) On a charge being laid against an officer, he shall -

(a) promptly be given a copy of the charge; and

(b) be directed -

(i) to reply promptly in writing, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it,

and if the officer does not give a reply within seven days after his receipt of the charge he may be deemed to have admitted the truth of the charge.

(5) If, after considering reports relating to the offence and charge, the reply and explanation (if any) of the officer charged and any further report that he thinks necessary, the Departmental Head concerned is of opinion that the charge has been sustained, he may -

(a) fine the officer a sum not exceeding 20% of the officer’s gross fortnightly pay; or

(b) reduce the officer’s pay; or

(c) reduce the officer to an office having a lower classification, and to a salary within that classification; or

(d) in addition to or instead of imposing a punishment specified in Paragraph (a), (b) or (c), transfer the officer to some other office or locality; or

(e) dismiss the officer from the Public Service.

(6) The Departmental Head shall notify an officer of a punishment imposed or recommendation made by him under Subsection (5).

Section 36 of the Land Act does not create an offence. That section covers a different situation altogether. It relates to, inter alia, successful applicants obligation to sign and forward a notice of acceptance of the terms and conditions of a proposed lease. But the selling of an unimproved land is not an offence under s 45 of the Public Service Management Act. In other words the selling of an unimproved land is not an offence created under s 45 of the Public Service Management Act.

The evidence from the applicant is quite clear. She was quite clearly charged with an offence that did not exist at all. In other words the alleged offence of selling unimproved land is not an offence created under or within the meaning of s 45 of the Public Service Management Act 1986.

It follows that she was charged with an offence that did not exist at all. Consequently the charge and findings of the first respondent were a nullity from the very beginning. The first respondent acted outside the law. For this reason alone, the court should interfere and quash the decisions of the first respondent.

However, for completeness, I wish to add a further comment. There is undisputed evidence that after she was found "guilty", the applicant was not given any opportunity to make any representation regarding the penalty. She was not heard on this aspect before the penalty was imposed. This was clearly a breach of the principles of natural justice.

For these reasons, I find that there has been substantial miscarriage of justice, which warrants this court to interfere.

It follows from what I have said that her charge and her subsequent suspension and termination were unlawful. Consequently those decisions cannot stand.

I declare that the charge and her subsequent suspension and termination null and void and of no effect. It follows that I quash the decisions of the first respondent of 16 October 1992, to suspend her and the decision of the first respondent of 12 August 1993 in terminating her services.

In these circumstances I order that the applicant be reinstated to her substantive position with all her full entitlements to be effective from 26 October 1992. I award costs of these proceedings to the applicant.

Lawyers for the applicant: Nonggorr & Associates.
Lawyers for the respondents: Solicitor General.