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Katarake v Attorney General [2014] KIHC 40; Civil Case 54 of 2013 (25 September 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CIVIL CASE NO. 54 OF 2013

BETWEEN

BWEBWETAAKE KATARAKE
PLAINTIFF

AND

THE ATTORNEY-GENERAL IRO THE COMMISSIONER OF POLICE
DEFENDANT

Before: The Hon Chief Justice Sir John Muria

22 August & 5 September 2014

Mr Banuera Berina for Plaintiff
Mr Birimaka Tekanene for Defendant

JUDGMENT

Muria CJ: Pursuant to leave granted on 1 November 2013, the applicant now seeks an order of certiorari to quash the decision of the respondent dismissing the applicant from the Police Service. The grounds relied upon by the applicant are as follows:

1. The decision to dismiss, which was confirmed by the Respondent, was made in contravention of section 46(2)(a) of the Police Service Act in that it was made by a summary board which has no power to dismiss a Police Officer. It can only issue a reprimand or caution or fine an officer with up to 14 days' pay.
   
2. The Applicant was never informed by the summary board that the accused had the right to make written representations about its decision within 14 days as required by section 47(12)(a)(iii) of the Police Service Act.
   
3. The Respondent did not give a written notice of his decision to the Applicant and neither did he inform the Applicant of his right of appeal to the Public Service Commission as required by section 49(6)(a) & (b) of the Police Service Act.
   

BRIEF BACKGROUND

The applicant was a police officer holding the rank of Constable.
At the time of his dismissal he was stationed at Kiritimati Island Police Station.

On 27 July 2010 the applicant appeared before the Officer Commanding District Itara Anterea at Kiritimati Island on a disciplinary charge of being under the influence of liquor whilst on duty. No issue has been taken by the applicant as to the establishment of a summary board to deal with his case. So the applicant must be taken to have accepted that the Officer Commanding District Itara Anterea, was the summary board established under Section 46(1) of the Police Service Act to deal with his case.

The hearing officer found the applicant guilty of the disciplinary offence and dismissed the applicant from the Police Service. The decision of the hearing officer was said to be confirmed by the Commissioner of Police on 6 August 2010. It is that decision by the Commissioner of Police that is challenged in this case.

THE APPLICANT'S CASE

The applicant's case is that the decision of the Commanding Officer dated 27 July 2010 dismissing the applicant and confirmed by the respondent on 6 August 2010 was made contrary to section 46(2)(a) of the Police Service Act ("the Act") and therefore invalid. The applicant contends that the respondent's decision on 6 August 2010 purporting to confirm the dismissal of the applicant cannot lawfully stand and must be quashed.

The applicant argued that the Commanding Officer who constituted the Summary Board and who heard the applicant's case on 27 July 2010 only had the power to recommend to the Commissioner certain punishments to be imposed on the applicant. Those punishments are, a caution or reprimand or a fine of up to 14 day's pay (see s.46(2)(a), Police Service Act). In the present case, it is said that the recommendation by the Summary Board to dismiss the applicant was made contrary to section 46(2)(a) and therefore could not be lawfully confirmed by the respondent.

CASE FOR THE RESPONDENT

While accepting that the Summary Board's power is limited to only recommending a caution or reprimand or a fine of up to 14 days' pay, the respondent's case is that the applicant had known of his dismissal ever since 2010 when he was still in Kiritimati Island. It is said that the letter of 6 August 2010 conveying the decision of the respondent was sent to the applicant in August 2010 by ASP Indeer Tom.

As the applicant only brought these proceedings in 2013 and having known of his dismissal in 2010, the respondent submitted that the discretion of the Court should be exercised against the applicant.

Having read the written and oral submissions of Counsel for the respondent, it seems to the Court that the only issue taken by the respondent is the delay by the applicant in bringing his case to Court.

THE SUMMARY BOARD'S DECISION OF 27 JULY 2010

The applicant's case is built on the provisions of section 46(2) and I set them out here. Section 46(2)(a) provides:

"S.46(2) A disciplinary board may be –

(a) A summary board, which may only recommend to the Commissioner imposition of the following penalties –

• (i) a caution or reprimand; or
• (ii) a fine of up to 14 days' pay.
  

It is clear from the record of the disciplinary hearing on 27 July 2010 that the punishment imposed on the applicant was one of –

"dismissal from the Police Service from today 27 July 2010 and to be confirmed by the Commissioner of Police".

In his reasons for his decision, the hearing officer also took into account an earlier disciplinary charge against the applicant on 15 May 2010 for the same offence (Drunk while on duty). At the hearing on 15 May 2010, the applicant's punishment was a "Final Warning for dismissal". It is therefore not surprising that on 27 July 2010, the hearing officer gave the applicant the dismissal punishment subject to the confirmation by the respondent. However, be that as it may, section 46(2)(a) of the Act has a clear purpose which is to confine the power of the summary board to only recommend to the Commissioner of Police to impose the penalties specified in that section, namely –

(i) A caution or reprimand; or
(ii) A fine of up to 14 days' pay.

It is not within the remit of the summary board to impose punishment. That is for the Commissioner of Police. The summary board is only to make recommendation to the Commissioner of Police to impose any of the punishments set out in section 46(2)(a) of the Act. In so deciding to mete out the punishment of dismissal to be confirmed by the Commissioner of Police, the hearing officer (summary board) exceeded his authority. The summary board's decision of 27 July 2010 is ultra vires.

COMMISSIONER'S DECISION 6 AUGUST 2010

The summary board's decision was forwarded to the Commissioner (respondent) who, on 6 August 2010, reviewed it and confirmed the decision of the summary board, dismissing the applicant from the Police Service. The dismissal of the applicant was effective from 27 July 2010, the date of the decision of the summary board. The respondent's decision was said to be communicated to the applicant in a letter dated also 6 August 2010 ("Exh. 1") and it states as follows:

"Bwebwetaake Katarake

London

Kiritimati Island

Dear Sir,

Re: Dismissal from the Kiribati Police Service w.e.f. 27/07/10

The Ag commissioner of Police had reviewed and confirmed the above punishment awarded by the hearing officer on the 27th of July 2010 for being drunk while on duty. Your dismissal is effective the same date as shown above.

You are notified to return all parts of Police Uniform to the OCS at London Police Station.

By copy of this letter, the addressees are informed for their information and necessary action.

Thank you.

(Sgd) Indeer Tom

ASP Professional Std

For Commissioner of Police"

There are two aspects of the respondent's decision that call for consideration. The first is, as Mr Berina of Counsel for the applicant contended, the respondent had confirmed a decision which the summary board has no power to make. The Court agrees with the contention of Counsel. There was, therefore, no lawful decision before the respondent to review and to confirm.

The second aspect of the respondent's decision is that, as Mr Berina again pointed out, it was made without complying with section 49 of the Act. That section sets out the procedure to be followed by the respondent when reviewing the disciplinary board's decision. I set out the provisions of section 49 as are relevant to the present case:

S.49(1) Subject to subsection (2), the Commissioner must review the decision of a disciplinary board, and any recommendation as to penalty, as soon as possible after being advised of the decision.

(2) The Commissioner may not review the decision of a disciplinary board until at least 14 days have elapsed from the date on which the accused officer was informed of the decision under section 47(12)(a), unless –

(a) The accused officer has, before the expiration of the 14 days, made written representations to the Commissioner about –

• (i) The decision; and
• (ii) Any recommendation as to penalty,
  

of the disciplinary board; or

(b) The accused officer has, before the expiration of the 14 days, informed the Commissioner in writing that he or she does not intend to make any representations to the Commissioner about the decision or the recommendation.

(3) After reviewing the disciplinary board's decision, the Commissioner must –

(a) confirm the decision and impose the penalty recommended by the disciplinary board; or

(b) confirm the decision but impose a different penalty to the penalty recommended by the disciplinary board; or

(c) annul the decision and the penalty; or

(d) order a rehearing.

(4) However, the Commissioner must not impose a penalty greater than the penalty recommended by the disciplinary board until –

(a) The accused officer has been given a written notice that states –

• (i) that the Commissioner is considering the imposition of a greater penalty; and
  
• (ii) that the accused officer is entitled, within seven days of receipt of the notice, to make further written representations to the Commissioner on the question of penalty; and
  

(b) At least seven days have elapsed from the date on which the accused officer received the notice under paragraph (a), unless the accused officer has, before the expiration of the seven days, -

• (i) made further written representations to the Commissioner on the question of penalty; or
  
• (ii) informed the Commissioner in writing that he or she does not intend to make any further representations to the Commissioner on the question of penalty; and
  

(c) The further written representations, if any, have been considered by the Commissioner.

(5) If the Commissioner decides under subsection (3) to impose a penalty the accused officer may appeal to the Public Service Commission under section 68.

(6) The Commissioner must give the accused officer a written notice that states –

(a) the Commissioner's decision; and

(b) if a penalty is imposed – that the accused officer may appeal against the Commissioner's decision to the Public Service Commission under section 68.

Under the above section there is the requirement that the applicant must be notified of the decision of the disciplinary board at least 14 days before the Commissioner reviewed his case. Mr. Berina submitted that the respondent was not notified of the summary board's decision as required by section 47(12) of the Act. There is some suggestion that the applicant was informed of the decision of the disciplinary board soon after the hearing at Kiritimati Island. In his own affidavit, the applicant stated that he was told that he was suspended which was not what the disciplinary board actually decided. The decision of the disciplinary board was that he was dismissed pending confirmation by the respondent.

Having been told that he was suspended, the applicant remained in Kiritimati Island waiting for the outcome of any review by the respondent. Without being told of any further development on his case, he came to South Tarawa to find out what was happening to his disciplinary case. The Police Head Office arranged for his trip back to Tarawa on 5 July 2011. There was no dispute to that evidence. There is also no dispute that when he arrived in Tarawa he went to the office to enquire about his case and was told that the records of his disciplinary case was yet to be obtained from Kiritimati Island.

Again it is not disputed by the respondent that in September 2011 when the records arrived from Kiritimati Island, the applicant went back to the Police Head Office to follow up the status of his case. It is further not disputed that when the applicant went to the Police Head office to see ASP Indeer Tom, he was then advised that he was dismissed. This piece of evidence is consistent with paragraph 6 of the affidavit of ASP Indeer Tom who stated:

"6. I recall that the applicant came to me and asked me about his status and I informed him that the matter has been decided and that he is being dismissed. At the same time, I advised him that if he is not happy, then he should seek advice. He then asked if I could provide him with copies of the proceedings but at that time, they are not completed yet therefore, I cannot give him".

One thing is plainly obvious. ASP Indeer Tom did not advise the applicant of the status of his disciplinary case until the applicant was in Tarawa in September 2011, a year after his disciplinary case was heard by his Commanding Officer in Kiritimati Island. Equally, it is obvious that the records of the disciplinary hearing in Kiritimati Island in July 2010, were not sent to Tarawa until they were required by the Police Head office. It is highly likely that if the applicant did not take active steps to ascertain the status of his disciplinary case, he would not have known the result of his case.

In paragraph 5 of ASP Indeer's affidavit he stated that the applicant knew he was dismissed. That is true but that was only after he (ASP Indeer) advised him (applicant) some time in September 2011 verbally. The letter of 12 March 2012 from the applicant's lawyer was written following receiving instructions from the applicant who had been told in September 2011 that he was dismissed from the Police Service. That letter cannot be interpreted to show that the applicant had already known in August 2010 that he was dismissed from the Police Service.

On the plain reading of the evidence in this case, the picture is obvious. The applicant was charged with a disciplinary offence and his case was heard by a summary board on 27 July 2010. Following the hearing, the hearing officer told him that he was suspended pending review by the respondent. The summary board did not suspend him, but in fact, dismissed him which decision was to be confirmed by the respondent. The applicant did not know about his dismissal. He was under the impression that he was only suspended pending review by the respondent. Consistent with his understanding that he was only suspended, he continued to receive his salary until 9 April 2013.

If the suggestion by ASP Indeer, that he notified the applicant of the respondent's decision of 6 August 2010 in August 2010, then why was the applicant's salary continued to be paid until 9 April 2013? I do not need to answer that question because I am satisfied that the decision made against the applicant suffers from illegality and procedural impropriety. It is unlawful because the decision made by the respondent on 6 August 2010 was a confirmation of a decision of 27 July 2010 which was made in excess of the power of the Summary Board. It suffers procedural impropriety because the statutory procedures laid down in sections 46(2) (power of Summary Board), 47(12) (procedure at end of disciplinary board proceedings), and 49(2) (Commissioner's review power and notice requirement) of the Act have not been complied with.

In disciplinary cases, the law governing the discipline of officers must be construed strictly. The powers of the body which exercises authority over accused officers must also be given strict construction.

WHEN DID THE APPLICANT KNOW OF THE COMMISSIONER'S DECISION?

The date on which the applicant knew of the respondent's decision is also crucial in this case. It is crucial because it is a factor to be taken into account on the issue of delay. It is also relevant when it comes to considering the rights and obligations of both parties under the Police Service Act.

In addition to what I have stated earlier, the evidence also revealed that some time after September 2011, following the arrival of the disciplinary hearing papers from Kiritimati Island, ASP Indeer Tom informed the applicant that his dismissal was confirmed by the respondent. The papers were not shown to the applicant despite the written request from the applicant's lawyer on 12 March 2012. After exchanges of correspondence, the applicant had to threaten the respondent with Court proceedings in July 2012 before the papers were given to the applicant's lawyer. It was not until October 2012 that the documents relating to the applicant's disciplinary hearing were made available to the applicant and his lawyer (see letters Exh B, C, D, E, F, G and H attached to the applicant's affidavit of 28 June 2013). Even by then, the letter dated 6 August 2010 was not among those papers supplied by the respondent to the applicant and his lawyer.

Even by January 2013, the letter dated 6 August 2010 had still not been given to the applicant or his lawyer. It appears that as a matter of caution, and in anticipation to receiving the letter containing the respondent's decision of 6 August 2010, the applicant, through his lawyer, wrote to the respondent on 2 January 2013 appealing to the respondent to review the decision of the Hearing Officer. Instead of receiving a reply to his letter of appeal, the applicant received a copy of the letter dated 9 April 2013 addressed to Secretary Ministry of Finance and Economic Planning about the cessation of his salary. By 30 April 2013, a copy of the respondent's decision dated 6 August 2010 had not yet been received by the applicant or his lawyer.

Finally, it was on 1 May 2013 that the respondent sent a copy of the letter dated 6 August 2010 (respondent's decision) to the applicant's lawyer. Along with the letter was a copy of the ASP Indeer's letter dated 5 August 2010 to the respondent. I find it with great dismay that it took almost three years (two years and 10 months) from 27 July 2010-1 May 2013 for the applicant to be given written notification of the two decisions stating that he was dismissed from the Police Service, and seven (7) months from October 2012 to 1 May 2013, for the letter of 6 August 2010 containing the respondent's decision to be given to the applicant's lawyer. I need say no more on this aspect of delay in the case. The final touch on the applicant's response to the blame of delay raised against him can be seen in paragraphs 26 to 33 of his affidavit. These are:

"26. On 1st May my lawyer received a letter from the Respondent dated 1st May 2013. Attached to that letter were letters dated 5th August 2010 from ASP Indeer to the Respondent and the letter from ASP Indeer to me dated
6th August 2010.

27. I must say that I never saw the letter dated 6th August 2010 until May this year.

28. I could not have been aware of its existence because from the moment I was purportedly dismissed until the letter of 9 April 2013 I continued to receive my salary from the Police Service.

29. The fact that I was still receiving my salary gave me the impression that I was still employed and that I was still awaiting the final decision on my case.

30. I am informed and I verily believe that in March of this year my lawyer informed the Respondent about his views on my case and the Respondent, through ACP Beeni Ikauea, did confirm that the summary board in Kiritimati had no power to recommend dismissal.

31. The reason therefore for the delay in filing these proceedings is that I was never aware of the decision of the Respondent made in August 2010. Had I been aware of the same I would not have wasted time seeing officers in the Police Service from the moment I returned from Christmas regarding my case.

32. Neither would I have wasted my money asking my lawyer to consider appealing against the decision of the summary board in Christmas.

33. The delay had also been caused by the Respondent's refusal and failure to provide all the relevant documents from the moment my lawyer wrote to them until they finally disclosed the letters of August 2010 dated 5th and 6th. Had these documents been provided when my lawyer requested the documents regarding the proceedings in Christmas Island I would have brought these proceedings in 2012".

In the present case, I am satisfied that the applicant only received written notification of the respondent's decision dated 6 August 2010, on 1 May 2013.

Before that date, the applicant had already been taking active steps to ascertain the status of the disciplinary decision taken against him. The evidence simply does not support any suggestion of delay on the part of the applicant in this case. There is no delay on the applicant's part. In fact, if there is any delay in this case, it is on the respondent's part.

As Mr Berina submitted, the respondent should not be heard to complain about any prejudice caused by any delay in this case. I agree.

WHETHER REMEDY SHOULD BE GRANTED

The only argument mounted on behalf of the respondent is that the remedy of certiorari being a discretionary remedy should not be granted by reason of the delay on the part of the applicant. It is true that certiorari, like the other prerogative orders, is a discretionary remedy and where appropriate, the Court should refuse it even if the breach complained of has been established.

In the present case, I am convinced that the applicant has succeeded in establishing a case for the grant of the order of certiorari. The decision of the summary board was made in excess of its power and is therefore ultra vires and void. The respondent's decision confirming the summary board's decision on the penalty cannot stand as well since it was a confirmation of an unlawful decision.

For the above reasons, both the decisions of the summary disciplinary board and the respondent imposing and confirming the penalty of dismissal on the applicant are hereby ordered to be brought into this Court for their purpose of being quashed.

It is only the decision of the summary board dated 27 July 2010 dismissing the applicant and respondent's decision made on 6 August 2010 confirming the summary board's decision that are quashed. The disciplinary hearing itself, by the summary board, has not been challenged and there is nothing to suggest that the conduct of the hearing was faulted.
In that disciplinary hearing the summary board heard evidence, both in support of the charge and on behalf of the applicant, on the charge of being drunk while on duty. Following the hearing the applicant was found guilty. Up to that stage, and the disciplinary hearing not being challenged, the conduct of proceedings by the summary board remains effective except for the decision on the penalty. I see no reason to disturb the conduct of the hearing and finding of the hearing officer (summary board). It is at the next stage in the disciplinary process, namely the decision to impose the penalty of dismissal, that the summary board fell into error.

The decisions of the summary board and respondent, imposing the penalty of dismissal on the applicant are ultra vires and unlawful and are quashed.

As he was told that he was only suspended, and his dismissal having been found to be unlawful, the applicant must be taken to be still in the employment of the Police Service, but on suspension with full pay until the summary board and respondent properly and lawfully exercise their powers under sections 46(2)(a), 47(12) and 49 of the Police Service Act.

Order accordingly.

Dated the 25th day of September 2014

SIR JOHN MURIA
Chief Justice