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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
O.S. NO. 175 OF 1996
BETWEEN
GRAHAM KEVI - PLAINTIFF
AND
THE TEACHING SERVICE COMMISSION DISCIPLINARY COMMITTEE - DEFENDANT
Mount Hagen
Lenalia AJ
11 April 1997
24 April 1997
ADMINISTRATIVE LAW - Judicial review - Judicial review of administrative action - Certiorari - Decision of Disciplinary Committee - dismissal of member of Teaching Serv Di - Disciplinary action - Part VII of the Teaching Service Act (Ch. No. 71) and PART II of the Teaching Service Regulations.
JUDICIAL REVIEW - Administrative decision - DismissNo opportunity to be heard eard - Administrative remedies exhausted - Disciplinary considerations - Disciplinary Committee - Duty to act fairly includes duty to give reasons.
JUDICIAL REVIEW - Natural justice - Disciplinary proceedings resulting in finding of guilt - Proceeding in absence of member concerned - Whether Disciplinary Committees constituted under PART VII - Division should proceed in absence of member charged.
Held
(1) ҈& As a ma a matter oter of statutory construction of the Teaching Service and Teaching Service Regulations (Ch. No. 71), the Disciplinary Committee constitus an late Board is required by law to give reasons fors for dism dismissal and an opportunity to be heard before the member was dismissed. Ridge v Baldwin [1963] 2 Rll ER 66 and Yambaki Okuk and Another v Fallscheder [1980] PNGLR 274 applied.
(2) ;ټ Where tere the Teae Teaching Service Commission Disciplinary Committee acts on recommendation by the National Educationd Disnary Committee resulting in a finding of guilt, the Disciplinary Committee must gust give rive reasons at the time the member iormed of the dthe decision.
(3) ugthoher tmay ot be any sany specific requirement under thching Service and Teaching Service Regulation for the Disciplinary Committees to give reasoreasons, it is a requirement of the princif natjusti give reasons.
>
(4)&#(4) & The Defe Defendant erred in law by failing to give reasons for finding the plaintiff guilty of a serious disciplinary charge.
(5) & The Defendant erred in lain law when it adopted ecisi dismhe plai plaintiffntiff when when the charge was not supported by any evidence.
Cases Cited
Rose Kekedo v Burnlip (Ltd ahers [1988-8988-89] PN9] PNGLR 1GLR 122
Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66
Mallock v Aberdeen Corporation [1971] 2 All ER 1278
Fallscheer v Iambaki Okuk and Another [1980] PNGLR 101
Yambaki Okuk and Another v Fallscheder [1980] PNGLR 274
Niggints v Tokam [1993] PNGLR 66
Breen v Amalgamated Engineering Union [1971] 2 QB 175
Materials Referred To
Faulkes on “Administrative Law” Fifth Ed.
Counsel
D O’Connor for the Plaintiff
24 April 1996
LENALIA AJ: The Plaintiff was granted leave to apply for judicial review on 28th of June, 1996. The matter hase been adjouadjourned from time to time until it came up before me on 11th of April for hearing.
The Plaintiff applies for judicial review pursuant to Or6 of the National Court Rules 1983 (Ch. No. 38) asking the the Court to remove to it and quash a determination of the National Education Board Disciplinary Committee made on 18th of August 1995 which decision was subsequently confirmed by Defendant dismissing the plaintiff from his teaching career as a lecturer at the Mount Hagen Technical College in the Western Highlands Province. Disciplinary Committees are constituted under Part VII - Division 1 of the Teaching Service Act and Part II Divisions 1 and 2 of the Teaching Service Regulations (Ch. No. 71). The plaintif charged with with a serious charge pursuant to S. 83 (1) of the Act and S. 19 of the Regulations on the 18th of August 1995 and the charge was served on the plaintiff on the 1st of September ollowing month. This This was aous disciplsciplinary charge. Tture of the charge were tere that the plaintiff on 22nd day of June 1995 did turn up for work hy intoxicated with alcoholcoholic liquor and further was unable to teach and thereby neglecis duties. There was was a further allegation contained in the charge that the plaintiff had committed similar behaviour on two (2) previous occasions for which the plaintiff was highly reprimanded in 1994.
On receipt of the notice of the charge the plaintiff immediately reacted by sending two written replies to the first Assistant Secretary Special Services, Technical Division - Education Department, in Moresby, (see Ann. “B” and “C” dated 2nd and 10th September 1995). In both es the plaintiff piff pleaded his innocence and admitted that although he had consumed liquor the previous evening, he denied cong liquor on the date stated in the charge. The Plaintiff also ed that that on the dahe date stated in the charge, he was in the campus until 9.45 am when he left the campus. He was not engan teaching hing that day and seeing he had no classes on 22ne, he applied for a leave eave of absence for that day. This is evid by an applicaplication for leave attached to his affidavie Ann. “D”).
By the 16 day of October 1995, the Plaintiff was served with a copy of the decision made by the nal Education Board Disciplsciplinary Committee on 5th of October the same month which committee acted on recommendations by the National Education Board recommending that the Plaintiff should be dismissed from the Teaching Service (see S. 85 (4) of the Act and S. 19 (4) of the Regulations).
Following service of the notice of dismissal, the plaintiff immediately appealed to the Chairman of the Teaching Service Commission Disciplinary Appeal Committee detailing his reasons for his innocency and an allegation that, the findings by the National Education Board Disciplinary Committee’s decision to suspend and dismiss him was ill-conceived and unsubstantiated by evidence. The plaintiff th occasionssions had the rightr S. 80 (10) (10) of the Teaching Service Act to appeal to those respective committees to which he had appealed to.
The Defendant Board determined tainti217;s appeal on 2 on 21st of December 1995 pursuant to S. 8 S. 80 (11) and decided to confirm the decision of the National Education Board Disciplinary Committee to dismiss the plaintiff from the Teaching Service. It is frot decision that that the plaintiff has sought leave and the relief he seeks is that an order of certiorari be made against the Defendant to remove into this Coud quash the decisions of the Teaching Service Commission whon which confirmed the decision of the National Education Board to dismiss the plaintiff from the Teaching Service. The plaintiff assertionrtions are supported by two detailed reports (see Ann. “H” and “I”). The first one by the Pril ipal of the Mount Hagen Technical College dated 8th of Au1995. The second one one an Inspector’s Report compiled and dated 28th and 29th August the same year were both very compsive and made in favour of r of the plaintiff’s attitude toward his work, his performances both in class and outside and his general behaviour toward other staff and his students.
The plaintiff relies on a number of grounds on this review. They ar>
(i)   ;d There w s no evidenvidence to substantiate the charge laid against the Plaintiff;(ii) &##160;pene ty alty appliedplied was excessive;
(iii) < ټ Tci decision of thef the Teaching Service Disnary ttee ontrary to natural justice in that it failed to consider that the NatioNational Enal Educatducation Board Disciplinary committee fail:
a) < provny evidencs substantiaantiating the charge;(b) & Failed to provide the Plae Plaintiff with an opportunity to cross-examine any witnesses providing evidence for the charge;
(c) &##160;leprovie ovie Plaf wlaf with an opportunity to addr address tess the Nahe Nationational Education Board Disciplinary on penalty;
(d) ټ&#Faileprovide any rany reasons for its decision.
It is the result of the above allegations that the plaintiff claims the Dant has failed to exercise its powers according to the requirement
of the Teachinaching Serg Service Act and the common law rules of natural justice and further claims that he was not afforded a hearing,
let alone a fair hearing. The Plaintiff has properly claimed the protection of law entitled to under SS. 37 (4) and 59 of the Constitution. Court is vested
with powerpowers of review pursuant to S. 155 (4) and (5) and Order 16 of the National Court Rules of 1983 (Ch. No. 38). The purposes
of jal rewere were succinctly stated by the Supreme Court in Roin Rose Kekedo v Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122.he Court said there that the purpose of judicial review is not to examine the subordinate aate authority’s decision with
the view to substituting its own opinion. Judicial review is ratonceconcern with the decision making process. It has also been
lished thed that, the Court’s powers of judicial review is only available to consider the validity of a decision of aunal o
interfere with with that decision only if it can be shown that such a decision was made uade unlawful, or was unfair or made contrary
to the principles of natural justice: Tandali v The Sta990] PNGL PNGLR 170. By these pples it is thougthought that where a tribunal
or authority exceeds its powers or or where there is error on the face of the records or where there is breacthe rof natural justicustice
it is said that it amounts to substsubstantial miscarriage of justice. The first ground relied upon on this review is that there was insufficient evidence put before the National Education Board Disciplinary
Committee against the plaintiff. On perusal of dnts, the Dehe Defendant’s lawyers filed a Notice of Intention to Defend and
despite several adjournments, and despite a notice of fax from the Solicitor General’s Office advising the plaintiff’s
lawyers that a lawyer from the Solicitor General’s office would appear to cross examine witness on the morning of 11th of April,
no defence lawyer turned up. There idence by the plaintlaintiff that upon receipt of the notice of the charge, he provided both
the National Education Board Disciplinary Committee and the Defendant with detailed denials of allegations contained in the charge.
There was no corresponding evidence put by the Defendant Board to rebutt what the plaintiff said. Proceeding before any committees constituted under the SS 74, 75 and 76 of the Teaching Service Act are all governed by S. 82 of the
Teaching Service Act. This section says: (1) &##160;; The Chae Chairman rman of a Disciplinary Committee shall fix a date and place for the hearing of any matter, and shall
notify the member o TeacServincerned, personalsonally or by post, of them. (2)) < &ـ Th0; The Chairman rman of the Disciplinary Committee and the charging authority shall, where practicable,
give to the memberpy of all documents ents intended to be used at the he at lseven days beforeefore the the date fixed under Subsection
(1). (3) eme m sherl inlorm thermanerman of the Disciplinary Cory Committee of the names and addresses of any witnesses whom he wishes
to attend the hearing and shall, wpracte, marange for attendance. (4)&>(4) #160;  &#The memberthe the chargiharging authority are entitled to appear, and to examine witnesses and address
the Disciplinary Committee, personally or by a lawyer or agent. (5) ҈&  Disciplinary nary Comy Committemittee shall make a thorough investigation without regard to legal forms or solemnities
or the rules of eve, and may inform itself on any matter in such manner as it thinks proper. (6) #160;ـ Th0; The Disciplinary Committee shall determine whether the hearing shall be in public or in private. (7) ټ&#Whhe Tehe Teg SerC SerCommission Disciplinary Committee upholupholds an appeal, it may recommend that that the amhe
amount of all or any specified part of easonexpenses incurred by a member of the Teaching Serg Service vice in prosecuting the appeal
be paid, and if approved by the Commission the amount may be paid to the member.” Documentary evidence provided by the plaintiff show that non of the alternatives procedures defined in SS 82 nor in 83 were complied
with. I find that in absence of evidence pointing me to the contrary, the claim by the plaintiff that there was no evidence to substantiate
the charge must be sustained. The allegation b plaintiff that the Defendant adopted the recommendation ofon of the National Education Board Disciplinary Committee
was excessive must fail for the following reasons. Earlier on in thigemudt, Int, I said that the purpose of judicial review is
not concerned with the decision but the decision making process and whether procedural fairness was ever afforded to the plaintiff.&#Proce
requirements unds under ther the Act in dealing with both less serious and serious disciplinary offences are laid out quite explicitly
in the terms of SS. 78 and 80 of the Act. The law only res this Cour Court to look at the manner and procedures adopted and ask
whether the Teaching Service Commission Disciplinary Committee complied with the law and the principles of the rules ofral justice.
Thereforrefore I a requirequired to decide whether the decision reached by the Disciplinary Committee was excessive or not: Rose
Kekedo v Burns Philip (PNG) Ltd and Others. The last assertion made by the plaintiff relates to a breach of natural justice in that the Defendant failed to consider failure by
the National Education Board Disciplinary Committee to provide the plaintiff with an opportunity to cross-examine any witness who
provided evidence in support of the charge and subsequently leading to the plaintiff not being given the right to present his case
fairly before the Committee. One of the rules of natjusl justice is that a man has a right to be heard before a decision adversely
affecting him is taken. In applying the conof fas ness it is said that there is always a duty to be fair, though what fairness requirequires
will differ from case to case, the ion being whether in the particular circumstances of the case the procedure taken by a trib tribunal
was fair: (see David Foulkes on “Administrative Law” Fifth Edition page 226). The Constitutional provisions of a fair hearing is enshrined in 59 of the Constitution and the common law principles of natural justice
stated in the case of Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66. It is also the requiremf S of S. 82 of the Teaching Service Act that a member is entitled to be heard when he is tried. The procedures
to be followed by a committee dealing with serious offences are fully detailed by section 82 of the Act. Secti envisages a hearing
ring in the presence of an affected member. In the instant case the plaintiff, appealed against two cutive decisions. It may not
haen taken seriously by thby the various Disciplinaplinary Committees. Lord Denning oncd: “The right of a man to be heard in his defe defence is the most elementary protection of all and where a statutory form of protn
would be less effective if it did not carry with it a right to be heard. I would nold not findifficifficult to imply this right”:
Mallock v Aberdeen Corporation [1971] 2 All ER 1278. The Plaintiff’s case is concerned with well definededural rules under the Teaching Service Act. There isre is no dthat thet
the rules of natural justice have been applied in this jurisdiction. There is no doubt such rulh rules are enshrined in the Constitution
(see SS. 37 (4) and 59). The protn of law ped for ifor in S.in S. 37 (4) could not have meant otherwise than the protection of the
whole body of law defined in S. 9 of thetitution. What is required undeT IIIT III Division 4 and 5 of the Teaching Service Acce
Act is that a member be given a fair hearing. If it was not specificalat stated there, at least it is the requirement of the principles
of natural justice. The Plaintiff also claims that there was failure on the part of the Defendant in not providing him reasons for its decision. It iseneral
desirable that that a tribunal or a Board should give re for their deir decisions. The ns are obvious.&#The pThe principle contains
elements of fairness and if the Defendant was to be fair to the plai plaintiff, reasons should be given to theest pcable extent..
A decision iely to be bett better tter if the reasons for it are set out in writing because such reasons are more than likely to
have been properly thought out. Secondly a20;reasoned̶” decision is essential in order that where there is a right of
appeal the applicant can assess whether he has good grounds to appeal and he can be able to prepare well tt the case. It is my s
my view it is a is an obligation to state the reasons for a decision together with a right of appeal against the decision and it
is more likely to concentrate the mind carefully on the decision. The g of reasons would be d be an assurance that the decision
made by the board of tribunal is free from arbitrariness. There may btances where rere reasons mnot be required for a decision.
For nce in mattematters cors concerning national security in which national security might be jdised: R v Secretary of State for
the Home Affairs Departmeartment ex-parte Hosenball [1977] 3 All ER. 452 see also David Faukes on Administrative Law Fifth Ed. Ch. 9. The Teaching Service Act nor the Teaching Service Regulation specifically require the disciplinary committees to give reasons however
it has been held in this jurisdiction that an officer cannot be dismissed (or even demoted) without first telling him what is alleged
against him and hearing his defence and explanation and reasons being given for the decision Falsheer v Iammbaki Okuk and Another
[1980] PNGLR 101. The principles there subsesubsequently approvedhe Supreme Court in Okuk anuk and Another v Falsheer [1980] PNGLR 274. The duty to give reasons on the part of departmental heas enunciated by Amet J (as he then was) in Nigints v TokamTokam [1993] PNGLR 66 and which principles are quite pertinent to the facts of the case before me. It case, His Honour said aaid at page 71-72: “The statement of principle I now enunciate is that the departmental head who decides in his discretion, on proper consideration
of the Public Services Commission’s recommendation, not to accept it should state the reasons for not so accepting the recommendation.
It is not sufficient to sssmiss the recommendation in the way the first respondent did: ‘Recommendations from the Public Services Commissio only recommendations. I do notpt the Public Serv Services commission recommendationstions
and therefore, you remain dismissed.’ If no reasons are stated other than this kind of statement, 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 affubstsubstantial interests and welfare of other officers andr families good management ment
and common sense principles of fairness require that reasons be given. Powers such as the powerismiss and power to accept cept nor
not accept recommendation are not absolute and unfettered. They ot intended to be exee exer arbitrarily and without good reasons.” It has been said that “The givingiving of reasons is one of the fundamenta good administration: Per Lord Denning in Breen v
Amalgamatgamated Engineering Union [1971] 2 QB 175”. For these reasons, I find that there has been a substantial miscarriage of justice which warrants interference with the decision made
by the Defendant confirming the decision of the National Education Board Disciplinary Committee. I thre order that the deci decision
made by the Defendant be quashed. That the Applicant be reinstated to the Teaching Service with appropriate entitlements fhe date
of his dismissal. The Defendhall meet thet thet the cost to be taxed if not agreed. Lawyer for the Plaintiff: DL217;Connor Lawyers &
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