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Niggints v Tokam [1993] PGNC 21; N1158 (15 July 1993)

N1158

PAPUA NEW GUINEA
NATIONAL COURT OF JUSTICE

OS NO 169 OF 1992

BETWEEN:

GODFREY NIGGINTS
Applicant

AND:

HENRY TOKAM
First Respondent

AND:

PAUL SONGO
Second Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Amet J
1993: 15 July

Judicial Review - Public Service (Management) Act 1986 - s.47 Power of Departmental Head to Charge

Practice and Procedure - Exercise of Power to Charge - Procedure On Determination of Charge.

Public Services Commission Recommendation - s.17

Ambit of Powers of Departmental Head considered.

Facts:

The Applicant was a senior officer in the Department of Correctional Services. Allegations of improper conduct against the Applicant resulted in three investigations directed by the Commissioner, the first respondent. The third report by the Deputy Commissioner strongly recommended against laying of charges against the Applicant. The Commissioner nevertheless directed the Deputy Commissioner to lay the charges which the Commissioner under his power sustained and ordered the Applicant be dismissed from service. The Applicant appealed to the Public Services Commission under his power sustained and ordered the applicant be dismissed from service. The Applicant appealed to the Public Service Commission under s.17 of the Public Service (Management) Act 1986. The PSC after review recommended revocation of the first respondents decision. The first respondent rejected the PSC recommendations without giving any reasons and confirmed his decisions.

The Applicant applied for judicial review of that decision.

Held:

(1) The Departmental Head has discretion to charge an officer on proper prima facie grounds and not arbitrarily.

(2) The First Respondent erred in the exercise of his discretion to direct the laying of charges against the Applicant when the Deputy Commissioner unequivocally recommended against laying charges against the Applicant.

(3) The Departmental Head has public duty and responsibility to exercise discretion to accept or reject recommendation of the PSC Review, on good meritorious grounds and not arbitrarily without reasons.

(4) The First Respondent erred in the exercise of his discretionary power not to accept the recommendations of the PSC to revoke his decisions, without stating any reasons.

(5) Findings of guilty of improper conduct and penalties of dismissal from service against the Applicant be quashed.

(6) The Applicant be reinstated to former substantive position with restoration of all entitlements retrospective to date of dismissal.

Mr J Wal for Applicant
Mr P Tamagle for Respondents

AMET J: This is an application for judicial review of decisions of the First Respondent as Commissioner for the Department of Corrective Institutions Services against the Applicant.

The Applicant was a Superintendent in the department in 1991. Certain allegations of improper conduct arose in relation to his tour of duty as Regional Commander of the Highlands Region based at Baisu Corrective Institution in the Western Highlands Province in 1990.

The Commissioner authorised an internal investigation which was followed by a further investigation by the Senior Internal Auditor, who submitted a report to the Acting Commissioner. The Commissioner then directed the Deputy Commissioner then Deputy Commissioner J P Delgoda to further investigate the allegations generally with the view to the possibility of laying charges against Mr Niggints.

Deputy Commissioner Delgoda concluded his investigations and submitted a report with his recommendations to the Commissioner. Mr Delgoda swore an affidavit filed in these proceedings deposing to these facts and annexed a copy of his report to the Commissioner. He recommended that no charges be laid against the Applicant because he considered it would not be possible to sustain them at an impartial inquiry because he found the Internal Auditor's report to be inaccurate in many respects.

Notwithstanding this recommendation the Commissioner elected to have the applicant charged and directed Deputy Commissioner Delgoda to lay the charges, which the latter did.

On 5 September 1991 the Applicant was charged with 8 counts of improper conduct pursuant to s.45(1) of the Public Services (Management) Act 1986. He was given seven days within which to reply to the charges, failing which, the notice stipulated "you may be deemed to have admitted the truth of the charge." These charges were served on the applicant on the same day, who also on the same day 5 September, 1991 wrote to the Commissioner seeking further and better particulars of the charges and requesting an extension of time within which to reply. On 10 September, 1991, the Commissioner wrote to the Applicant refusing an extension of time, but providing brief lead information on each of the charges.

On 10 September, 1991 the Applicant replied to the charges denying each one with quite full explanations and reasons. On 3 December, 1991 the Acting Commissioner gave notice to the Applicant of his decisions which in respect of four of the charges was dismissal from the service.

The notices also advised that in accordance with s.17 of the Public Services (Management) Act the applicant had the right to seek a review of the decision by the Public Services Commission. The applicant appealed to the Public Services Commission on 10 January 1992.

The Public Services Commission, on 17 March 1992, advised the first respondent its conclusions of its investigation and its recommendations. The Commission recommended that all the decisions of finding guilt and penalties be revoked, that the applicant be reinstated to his former substantive position as Senior Superintendent, that he be paid all his entitlements and benefits retrospective to the date of his dismissal and that all documents containing allegations, charges and any undesirable information pertaining to the good character of Mr Neggints, be removed from his records of service.

On 4 June, 1992 the first respondent advised the applicant that he had received advice from the Public Services Commission on the result of its review and its recommendation. He advised that:

"Recommendations from the Public Services Commission are only recommendations. I do not accept the Public Services Commission recommendations and therefore, you remain dismissed."

These then were the chronological sequence of events and the decisions which the Applicant now seeks judicial review of.

Firstly, despite the very strong recommendation against charging the applicant from his own, Deputy Commissioner Delgoda, whom he had assigned the task of an independent investigation, the first respondent proceeded to direct that the applicant be charged.

Secondly, again despite very strong recommendations from the Public Services Commission to revoke the decision, the first Respondent refused to exercise his discretion as recommended.

Public Services (Management) Act

This is a relatively new legislation and so the various provisions in relation to disciplinary process and procedures have not been judicially defined and ruled upon before. There are several procedural aspects that have arisen in this case I will endeavour to give some guidance on for future application.

Section 47(4)

This subsection stipulates a number of mandatory prerequisites which must be strictly adhered to or complied with if the charges and the decisions are to be valid and sustained.

Firstly the officer being charged:

(a) shall 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 a reply is not given by the officer within seven days after his receipt of the charge he may be deemed to have admitted the truth of the charge."

The first mandatory requisite is that the officer being charged shall be served a copy of the charge promptly. If he is not served then any deliberation and or decisions will be liable to being challenged as being in breach of natural justice and thus null and void.

Secondly the officer being charged and served shall be directed in the terms of (b)(i) and (ii). That can be in the body of the charge.

I consider that the short time frame is specifically for the purpose of the reply as to admission or denial of the charge. I think it would be fair to require that the reply should be given within 7 days. I consider however that fuller explanations can be given over a longer period after the initial reply to the charges. The reply must be given within 7 days and a longer period can be given to provide fuller reasons if there are a number of charges which might require lengthy prepared explanations.

Request for Further and Better Particulars

Whilst the Act does not specifically provide for such a procedure, I think that consistent with the longer time necessary to give explanations, it could only help the decision making process for the charged officer to be provided further details upon which the charge/s are based to enable him to respond more fully. It is a matter of common sense and fairness. A charged person is entitled to know the basis upon which he has been charged; in greater detail to enable him to respond more fully and to enable the decision making process to be fuller and fairer.

Power of Departmental Head to Charge

Despite inconsistent or conflicting reports and recommendations, I think it is clear that the Departmental Head has the discretionary prerogative to proceed to charge an officer. I think however that there should be adequate prima facie basis for preferring the charges. A decision to lay charges cannot be arbitrary; it cannot be based on personal differences and other irrelevant considerations. There must be some strong evidence, which if proven and believed could lead to the charges being proved.

Having stated this as a matter of principle, did the first respondent exercise the power to charge the applicant in this case, properly and on proper considerations? He had two earlier reports, the second from the Senior Internal Auditor. He directed a further independent investigation by the most senior officer in the Department after himself. That investigation and report unequivocally recommended against laying charges, and reported in detail the reasons for the conclusions and the recommendation.

I find it quite difficult to comprehend how in these circumstances the first respondent could justify the exercise of this power in this fashion. I find it to be a wrong exercise of power.

The power to charge cannot be absolute and unfettered. It has to be exercised after due consideration of the merits of the allegation and the reply and any explanation provided.

Determination of Charges

The next issue that this review has highlighted is the procedure of determining the charges by the Departmental Head. How is this to be effected. The provision of s.47(5) is silent. I think, however, that it is adequate. If the preceding provisions of s.47 as to notice and adequate opportunity for the charged officer to reply and give explanation have been complied with then basic requirements of natural justice and fairness have been fulfilled and the Departmental Head can proceed to consider them and to make a decision.

Review and Recommendation by the Public Services Commission

The Commission advised that in its review it had paid particular reference to the three reports that had been submitted to the first respondent; the first by the Lands Officer on 17 December, 1990, the second by the Senior Internal Auditor on 21st February, 1991 and the third by Deputy Commissioner Delgoda on 13 August, 1991. On the basis of these reports the Commission made its recommendations. What is the effect of the Commissions recommendations and what is the ambit of the discretionary power of the Departmental Head.

Section 17(2)(b) and (c) provide that:

"The Commission -

(b) shall consider whether the decision in relation to the personnel matter was an appropriate decision having regard to the nature of the decision and the views of the officer and the views of the Departmental Head; and

(c) recommend the confirmation, variation or revocation of the decision in relation to the personnel mater in writing to the Departmental Head and to the Departmental Head of the Department of Personnel Management."

Unfortunately the Act does not prescribe how the Departmental Head is to deal with such recommendations of the Commission and what powers or discretion the Departmental Head has in respect of such recommendations.

We start from the premise that an officer aggrieved by a decision of the Departmental Head has a right to seek a review of that decision by the Commission. That right is enabled by s.17 of the Act. The power and jurisdiction to review personnel matters is a substantive one. It is a power that is expected to be exercised thoroughly and proficiently and fairly in the interest of all parties concerned. It is to be exercised by a constitutionally independent Commission - Const. s.192. Whilst the new regime under the Act only vests in the Commission power to recommend a particular course, it is a recommendation which, in my view because of all of the foregoing reasons require very serious consideration and respect. It cannot be simply dismissed arbitrarily. It cannot be ignored without serious consideration of the reasons for it.

Because the Commission only has power to recommend, then it might well be presumed by the Departmental Head that he has absolute unfettered prerogative to accept or reject, on any grounds he choses or on no ground at all. That presumption, if it exists, ought to be dispelled at once. I do not believe that it was ever the intention of the legislature to entrust absolute power in personnel matters to a single individual. The right of the aggrieved officer to seek review by a panel of Commissioners is ample evidence of this.

The Public Services Commission would be expected to give reasons for its recommendation, as it has done in this case. The Departmental Head is, in my view, required by common sense and the need for public administrative accountability to give serious consideration to the Commissions recommendation and the reasons for it. Having considered the recommendation, if it is decided not to accept it then reasons for not so accepting the recommendation ought and should be provided to the aggrieved officer, because the officer has a right to seek judicial review as the applicant has done in this case. It would be beneficial for those reasons to be available for the judicial review.

The statement of principle I now enunciate is that the Departmental Head who decides in his discretion, on proper consideration of the Commissions recommendation, not to accept it, should state the reasons for not so accepting the recommendation. It is not sufficient to dismiss the recommendation in the way the first respondent did:

"Recommendations from the Public Services Commission are only recommendations. I do not accept the Public services Commission recommendations and therefore, you remain dismissed."

If no reasons are stated other than this kind of statement, then it leaves the court no option than to conclude that there were no good reasons at all. Public officials discharging public duties are required for public accountability to provide reasons for their actions and decisions. If their decisions affect substantial interests and welfare of other officers and their family then good management and common sense principles of fairness require that reasons be given.

Powers such as the power to dismiss and power to accept or not accept recommendation are not absolute and unfettered. They are not intended to be exercised arbitrarily and without good reasons.

In the end result I make the following findings:

1. The first respondent Henry Tokam, in his capacity as Commissioner for the Department of Correctional Services, erred in the exercise of his discretionary power to direct the laying of disciplinary charges against the Applicant Godfrey Niggints, contrary to the unequivocal recommendation by the Deputy Commissioner JP Delgoda.
   
2. The first respondent erred in the decisions that the applicant was guilty of improper conduct and in imposing the maximum penalty of dismissal from service.
   
3. The first respondent erred in the exercise of his discretionary power not to accept the recommendations of the Public Services Commission upon review.
   

Consequently I make the following orders:

1. All the orders of the first respondent in finding the applicant guilty of improper conduct and imposition of corresponding penalties are quashed.
   
2. That the Applicant Godfrey Neggints be reinstated to his former substantive position as Senior Superintendent forthwith.
   
3. That the applicant Godfrey Neggints be restored and paid all his entitlements and benefits retrospective to the date of his dismissal.
   
4. The State pay the applicants party and party costs.
   

Lawyer for Applicant: Kemaken Lawyers
Lawyer for Respondent: Solicitor-General