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Waulas v Jigede [2009] PGNC 171; N3781 (19 October 2009)

N3781


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS NO 69 OF 2009


BETWEEN


BAU WAULAS
Plaintiff


AND


VERONICA JIGEDE,
as PROVINCIAL ADMINISTRATOR OF NEW IRELAND PROVINCE
First Defendant


AND


DEPARTMENT OF PERSONNEL MANAGEMENT
Second Defendant


AND


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Kokopo: Makail, J
2009: 22nd July & 19th October


JUDICIAL REVIEW - Review of Acting Provincial Administrator’s decisions to inter-alia dismiss officer - Officer charged with multiple serious disciplinary charges - Convicted by District Court of 2 criminal offences - Whether dismissal from employment automatic by operation by law - Whether criminal offences relate to duties of officer’s office - Requirement to inform officer of decisions within 21 days mandatory - Breach of - Effect of - Public Service (Management) Act 1995 - Sections 50, 52, 53 & 70 - Public Service General Order 15.35.


JUDICIAL REVIEW - Breach of natural justice - Right to be heard on penalty - Effect of - Decisions to inter-alia dismiss null and void - Application upheld and decisions to inter-alia dismiss officer quashed - Constitution - Section 59.


PRACTICE & PROCEDURE - Remedies - Reinstatement - Discretionary relief - Principles of - Claim for loss of salaries and entitlements - Discretionary relief - Claim for damages for frustration and distress - Whether permissible in applications for judicial review - Consequential relief - National Court Rules - Order 16, rules 3 & 7.


Cases Cited:


Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122
Samson David -v- Manasupe Zurenouc (2007) N3146
Tindiwi -v- Nilkare [1984] PNGLR 191
Sakawar Kasieng -v- Andrew Baigry (2004) N2562
Jim Nomane -v- David Anggi (No1)(2003) N2496
Philip Kamo -v- The Commissioner of Police & Ors (2001) N2084
John Magaidimo -v- Commissioner of Police (2004) N2752
Pierson Joe Kamangip -v- Bernard Orim & Ors (1998) N1695
John Unido -v- Sam Inguba, Commissioner of Police (2003) N3369
The State -v- Guai [1990] PNGLR 162;(1990) N837
Mision Asiki -v- Manasupe Zurenouc, Morobe Provincial Administration and The State (2005) SC797
Isaac Lupari -v- Sir Michael Somare, Prime Minister, NEC & The State (2009) N3476
Joe Ponau -v- Teaching Service Commission Disciplinary Committee (2006) N3059
Peter Bon -v- Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital & Ors (2001) N2123
Peter Luga -v- Richard Sikani, Commissioner of CIS (2002) N2285
Clement Kelipak -v- Ellision Kaivovo (2003) N2402
Lawrence Sausau -v- Joseph Kumgal (2006) N3253
Peter Aigilo -v- Sir Mekere Morauta, as Prime Minister & The State (2001) N2103
Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958


Counsel:


Mr P. Yange, for Plaintiff
Mr F. Cherake, for Defendants


JUDGMENT


19th October, 2009


1. MAKAIL J: This is an application for judicial review of 8 decisions of the First Defendant to inter-alia, dismiss the Plaintiff from the employment of the New Ireland Provincial Administration as the Acting Director for Health on 23rd April 2008. Leave for judicial review was granted by the National Court on 27th March 2009.


2. The 8 decisions are a result of 12 serious disciplinary charges laid against the Plaintiff by the First Defendant under section 52 of the Public Services (Management) Act 1995 ("PSM Act"), and they are:


# Charge 3 - That, as Acting Director for Health, in 2007, he permitted the alteration of figures for officers’ allowances from HSIP funds for work carried out at CDC Lakuramau which resulted in the officers receiving K120.00 more than what they were entitled to received.


Verdict - Guilty - Penalty - Fine of K140.00 which is 20% of his gross fortnightly salary.


# Charge 4 - That, in July 2005, he demanded K200.00 travel allowance belonging to Simon Yamin from Joe Kiliahe and did not hand the money over to Simon Yamin to date resulting in HSIP official record showing that the money is yet to be acquitted.


Verdict - Guilty - Penalty - Fortnightly gross salary point 9.5 (K699.98) is reduced to 9.4 (K658.24).


# Charge 7 - That, he disregarded a lawful order made or given by the Provincial Administrator, Mr Robinson Sirambat on 25th June 2007 directing him to return the vehicle Registration No PAE 048 to the Manager-Transport & Administration Services with immediate effect, but despite the directive, he continued to keep the vehicle at his resident after hours until the vehicle was involved in an accident at Putput village in 2008 and is now of the road.


Verdict - Guilty - Penalty - Fortnightly gross salary point of 9.4 (K658.24) is reduced to 9 (K626.91).


#Charge 8 - That, he committed a breach of the Public Service (Management) Act 1995, by willfully disobeying the lawful direction given by the Provincial Administrator, Mr Robinson Sirambat on 25th June 2007 for his NIPG driving licence to be suspended, but despite the instruction, he continued to drive NIPG vehicle Registration No PAE 048 thereafter.


Verdict - Guilty - Penalty - Fortnightly gross salary point of 9.3 (K626.91) is reduced to 9.2 (K595.59).


# Charge 9 - That, he committed a breach of the Public Service (Management) Act 1995, in that he was convicted by the Kavieng District Court on 14th February 2007, for driving a motor vehicle, Toyota Hilux Double cabin, Registration No LAP 693 without due care and attention which is a criminal offence.


Verdict - Guilty - Penalty - Dismissal from Public Service.


# Charge 10 - That, on 11th September 2006, he committed a breach of the Public Service (Management) Act 1995, by not being careful when driving and using a State property, a motor vehicle, Toyota Hilux Double cabin, Registration No LAP 693 which crashed into the mangroves at the side of the road at Lavatbura village, resulting in damage to the vehicle costing the New Ireland Provincial Government K15,691.19 for repairs and maintenance.


Verdict - Guilty - Penalty - Demoted by one classification level from Grade 9 to Grade 8.


# Charge 11 - That, he committed a breach of the Public Service (Management) Act 1995, in that he was convicted by the Kavieng District Court on 13th August 2007, for committing a criminal offence of driving a Provincial Government vehicle PAE 048 without due care and attention upon Mongol street, Kavieng, New Ireland Province.


Verdict - Guilty - Penalty - Dismissal from Public Service.


#Charge 12 - That, he was incompetent from causes within his control and collided with another vehicle Registration No NAC 157 parked at the front of Joe Tong’s Liquor shop last year in 2007, resulting in your conviction by the Kavieng District Court on 13th August 2007 on a criminal charge.


Verdict - Guilty - Penalty - Fortnightly gross salary point of 9.2(K595.59) is reduced to 9.1 (K564.27).


BRIEF FACTS


3. The Plaintiff is from Laraibian/Madina village in the East Coast Kara/Nalik area of Tikana Local Level Government ward, in Kavieng of the New Ireland Province and was employed by the New Ireland Provincial Administration for 25 years until his dismissal by the First Defendant on 23rd April 2008. How he was dismissed is this; on 18th February 2008, he was served with a notice of suspension which effectively meant that he was suspended from performing his official duties. On 18th March 2008, he was served with 12 notices of serious disciplinary charges by the First Defendant all containing serious disciplinary charges of various allegations against him which are set out above.


Two (2) of the 12 disciplinary charges relate to allegations of driving without due care and attention resulting in 2 separate motor vehicle accidents involving Provincial Government-owned vehicles. As a result of the 2 motor vehicle accidents, the Plaintiff was convicted by the Kavieng District Court and fined. The remaining 10 disciplinary charges relate to incompetency, inefficiency, negligence and carelessness in the discharge of his duties as Acting Director for Health in the New Ireland Provincial Administration.


4. On the same day, he replied to the 12 notices of serious disciplinary charges in writing refuting the allegations. On 24th April 2008, he received 12 notices dated 23rd April 2008 informing him of the decisions of the First Defendant in finding him guilty of charges 3,4,7,8,9,10,11,and 12 while finding him not guilty of charges 1,2,5, and 6. From these 12 notices of serious disciplinary charges, the Plaintiff seeks review of the decision to first, find him guilty of 8 of the 12 serious disciplinary charges and secondly, imposition of a variety of penalties ranging from reduction in pay to demotion in position for 6 of the serious disciplinary charges and dismissal from employment for 2 of the serious disciplinary charges, for his involvement in two separate accidents involving two motor vehicles owned by the New Ireland Provincial Government, where he was found guilty by the Kavieng District Court.


GROUNDS FOR REVIEW


5. There are two grounds of judicial review and they are set out in the Amended Statement in Support of the application for judicial review filed on 19th April 2009, below:


"(a) Non-Compliance with Order 8.35 or Order 15.35 (Amended) Public Service General Orders:


(i) The Applicant replied to the charge on the same date which 18th March 2008 and the First Defendant issued the dismissal notice or decision on 23rd April 2008. When counting the days between 18th March 2008 and 23rd April 2008, the decision was given 34 days later excluding 21st March 2008 (Easter Friday) and 24th March 2008 (Easter Monday). 34 days minus 21 mandatory days under Order 8.35 of the Public Service General Orders, the First Defendant was late by 13 days.


(b) No opportunity to make address on penalty:


(ii) After finding the Plaintiff guilty of eight (8) of the Charges (ie, Charges 3,4,7,8,9,10,11 and 12), he should have been given the opportunity to make his submission or addresses in the type of penalty that may be imposed on him. The failure in according the Plaintiff that opportunity amounts to breach of Natural Justice."


PARTIES’ EVIDENCE


6. The Plaintiff relies on the following Affidavits:


1. His Affidavit sworn on 12th February 2009 and filed on 18th February 2009, (Exhibit "P1");


2. His Further Affidavit sworn on 02nd March 2009 and filed on 03rd March 2009, (Exhibit "P2"); and


3. His Further Affidavit sworn on 07th April 2009 and filed on 14th April 2009, (Exhibit "P3").


7. The Defendants rely on the following Affidavits:


1. Affidavit of the First Defendant sworn on 13th July 2009 and filed on 14th July 2009 (Exhibit "D1"); and


2. Affidavit in Response of Simon Passingan sworn on 13th July 2009 and filed on 14th July 2009 (Exhibit "D2").


REASONS FOR DECISION


8. I need not restate the law on applications for judicial review because it is settled in Papua New Guinea, given the so many number of cases that have come before the National and Supreme Courts over the years that have made it clear that judicial review is available where the decision making authority:


# Exceeds its power or authority;

# Commits an error of law;

# Commits breach of natural justice;

# Reaches a decision that no reasonable tribunal would have reached; or

# Abuses its power or authority.


9. But perhaps, it is useful to remind ourselves that, "the purpose of judicial review is not to examine the reasoning of the subordinate body with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process." See Kekedo -v- Burns Philip (PNG) Limited [1988-89] PNGLR 122 at 124.


10. Bearing in mind the above grounds where judicial review maybe available, I deal first with the first ground of review.


Ground 1 - 21 days requirement to inform Plaintiff of decision


11. The first ground raises three issues. First, whether it is mandatory for the First Defendant to give her decision within 21 days. Secondly, if so, whether the First Defendant did give her decision within 21 days and finally, if not, what is the effect of not giving her decision within 21 days?


12. At pages 7-9 of his written submissions, counsel for the Plaintiff in essence submits that the First Defendant as the decision making authority is obliged by law under the Public Service General Order ("PSGO"), 15.35 to inform the Plaintiff of her decision in respect of the 12 disciplinary charges within 21 days. He submits that this is because PSGO 15.35 makes it mandatory that the First Defendant must inform the Plaintiff of her decision within 21 days. In this case, the First Defendant did not inform the Plaintiff of her decision within 21 days, hence by virtue of PSGO 15.35, the decision of the First Defendant is null and void. To support his submission, counsel refers to a decision of Gabi J, in Samson David -v- Manasupe Zurenouc (2007) N3146.


13. Before I give my opinion on the application of PSGO 15.35, it is instructive to note that the Defendants have not taken issue with its existence and application in the present case. Section 70 of the PSM Act authorizes the departmental head of the Department of Personnel Management to issue PSGOs not inconsistent with the PSM Act. It states:


"70. General Orders.


(1) The Departmental Head of the Department of Personnel Management may give to officers directions (to be known as "General Orders"), not inconsistent with this Act, as to any matter prescribed by this Act to be so provided for or that is necessary or desirable for the efficient management and control of the Public Service.


(2) In formulating General Orders under Subsection (1), the Departmental Head of the Department of Personnel Management shall give effect to any relevant decisions on policy made by the National Executive Council."


14. It is therefore clear that, the PSGOs have their legal basis under statute, namely, the PSM Act. They are subsidiary rules introduced by the Secretary for the Department of Personal Management to compliment the PSM Act. In terms of the administration of disciplinary charges in the Public Service, PSGO 15.35 is one of those rules that compliment section 52 of the PSM Act. Section 52 states:


"52. 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 51, 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 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.


(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 the 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)."


15. Proceeding on this premise, in the present case, it would seem that the Plaintiff was suspended from duties before the First Defendant laid the 12 disciplinary charges on him in accordance with section 52(3) above. Further, section 52(4) above does give a time frame by which an officer shall reply to the disciplinary charge(s), in that, the officer shall "reply promptly in writing, stating whether he admits or denies the truth of the charge" and the time frame is 7 days. But section 52(6) above, does not give a time frame by which the departmental head shall inform the officer of his or her decision. This is where I consider PSGO 15.35 applicable because it expressly gives a time frame of 21 days.


16. Returning to the issues at hand, I consider that, the submission of the Plaintiff makes a lot of sense, as well as having merits because the wording of PSGO 15.35 is very clear. The decision of a departmental head must be conveyed to an officer within 21 days after receiving the officer’s reply to the disciplinary charge. PSGO 15.35 states:


"General Order 15.35


(a) The Officer must be notified of the decision within 21 days of the Departmental Head receiving the officer’s reply to the charge.


(b) In the circumstances where there is no decision within 21 days, the charges are deemed null and void." (Underlining is mine).


17. In the case of Samson David (supra), referred to by counsel for the Plaintiff, Gabi J, stressed that PSGO 8.35 or 15.35 (as amended) is mandatory and its non compliance would render the purported conviction and dismissal of an officer null and void. In that case, the Plaintiff was charged with a disciplinary offence of absenteeism. He responded to the charge by admitting it but the departmental head failed to inform him of the decision within 21 days after the departmental head received a reply from the Plaintiff. In fact, the Plaintiff was informed by the departmental head of the decision to dismiss him from employment some 3 months after the 21 days had lapsed. This is what His Honour said in respect of the consequence of the failure to comply with the 21 days time limitation:


"Failure to give decision within 21 days


General Order 8.35 provides:


"The officer must be notified of the decision within 21 days of the Departmental Head receiving the officer’s reply to the charge."(Emphasis added)


The charge was served on the plaintiff on 15 March 2000, and he replied to the charge on 16 March 2000. The first defendant notified the plaintiff of his termination on 27 June 2000, which is more than three (3) months. I am of the view that General Order 8.35 is mandatory and a failure to comply with it renders the decision null and void. The first defendant committed an error of law." (Underlining is mine).


18. In my respectful opinion, PSGO 15.35(a) makes it mandatory that the departmental head like in this case, the First Defendant, to inform the Plaintiff of her decision within 21 days upon receipt of the Plaintiffs reply. This is because of the word "must", used in PSGO 15.35. In Tindiwi -v- Nilkare [1984] PNGLR 191, the Supreme Court, per Bredmeyer J, said that the words "may", "shall" and "must" commonly used in statutes and policy documents are:


"Normally in a statute the word "may" means may; it is permissive and confers a discretion. It contrasts with the word "shall" which, when used in a statute, normally means shall or must; it is imperative or mandatory. In some cases the word "may" in a statute will be interpreted to mean "shall" but that is the exception and not the rule."


19. The word "shall" is equivalent to "must" and many National and Supreme Court judgments have interpreted provisions of statutes and other documents such as contracts with the word "shall" as mandatory and in almost all cases, the word "must" is used in application of choice of words. An example of such is the case of Sakawar Kasieng -v- Andrew Baigry (2004) N2562, where Kandakasi J, in considering whether a coronial inquest must take place immediately following a death under the Coroners Act, said:


"As will be apparent from the wording in both subsections (2) and (3), the legislature chose to use the mandatory shall. It follows therefore that a coronial inquest must take place without delay following a death in the kind of circumstances subsection (1) lists."


20. In the election petition case of Jim Nomane -v- David Anggi (No1)(2003) N2496, Gavara Nanu J, said that:


"217. REAL JUSTICE TO BE OBSERVED.


The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. (my underlining).


Thus it is also implicit in s.217 that in all election petition proceedings, the Court must be guided ultimately by the "substantial merits and good conscience" of the case. Again, this section is in mandatory terms by virtue of the word ‘shall’."


21. I believe there are very good policy considerations for having a 21 days time limitation in PSGO 15.35 and that is because, we are dealing with lives of human beings. These are persons employed as officers of the National Public Service who are affected by the decision of the departmental head through the disciplinary process under the PSM Act. Once a disciplinary process is set in motion like for example, an officer is charged with a serious disciplinary offence, it is important that it must be completed without delay.


22. There is no room for the departmental head to allow the serious disciplinary charge to be left "hanging in the air" so to speak. That is why, in my view, the time limitations in section 52(4) of the PSM Act and PSGO 15.35 were put in there to guide the departmental head and the officer concerned to play their respective parts in the whole disciplinary process so that the disciplinary charge is heard and determined without delay.


23. As noted above, PSGO 15.35(a) gives a time frame of 21 days for a departmental head to inform the officer concerned of his or her decision whilst the PSM Act gives a time frame of 7 days for the officer to respond to the disciplinary charges. It is also my respectful opinion that the 21 days does not run until the departmental head receives a reply to the disciplinary charges from the officer. In other words, once the departmental head receives the officer’s reply to the disciplinary charges, he or she must make up his or her mind and inform the officer of his or her decision within 21 days.


24. This is where I respectfully disagree with the Defendants’ counsel’s submission that, PSGO 15.35(b) does not mean that if the departmental head does not convey his or her decision to the officer within 21 days, it does not necessarily mean that the disciplinary charges are null and void. What it means is that, if the departmental head does not make up his or her mind in relation to the disciplinary charges within 21 days, they are deemed null and void. But where he or she makes his or her decision within 21 days but conveys it to the officer outside 21 days, they are still valid.


25. If the submission of the defendants’ counsel on the interpretation and application of PSGO 15.35(b) is accepted, first I find that there will be a fundamental breach of the whole disciplinary process in the public service system as far as disciplining of officers are concerned. The fundamental breach is this, if the departmental head makes his or her decision within 21 days but days not convey or make known the decision to the office within 21 days, how would the officer affected by the decision know of the decision? That is why, I am of the opinion that even if the departmental head makes a decision in respect of the disciplinary charges within 21 days, he or she must convey or inform the officer of the decision within 21 days.


26. If the departmental head does not do so, it brings me back to the reason I gave earlier and that is, the 21 days has been put there to ensure that officers subjected to the disciplinary process are not kept waiting or held to ransom by the departmental head’s delay in informing them of the decision in respect of the disciplinary charges or failure to make up his or her mind on time. That is the first reason for my disagreement.


27. My second reason for my disagreement is that, just by literally reading PSGO 15.35(b), it is clear to me that it means that, if a departmental head does not make a decision in respect of an officer’s disciplinary charges with 21 days, then the disciplinary charges are deemed null and void. It would follow that, there would be no disciplinary charges upon which the departmental head may proceed upon after the 21 days to make his or her decision.


28. For these reasons, I am satisfied that it is mandatory that the departmental head must inform the officer of his or her decision within 21 days after receipt of the officer’s reply to the disciplinary charge.


29. In the present case, it is the evidence of the Plaintiff in his Affidavit (Exhibit "P1") that he received the 12 serious disciplinary charges on 18th March 2008. He replied to them on the same day and the First Defendant delivered her decisions to him through the Deputy Administrator, Mr Drett on 24th April 2008. By a physical count of dates from 18th March 2008 excluding 21st March 2008 (Good Friday), 22nd and 23rd March 2008 (weekends) and 24th March 2008 (Easter Monday), 05th and 06th April 2008, 12th and 13th April 2008 and 19th and 20th April 2008 (weekends), the First Defendant’s decisions were 5 days outside the 21 days. In other words, the 21 days ran from 18th March 2008 and expired on 16th April 2008.


30. On the other hand, it is the First Defendant’s evidence in her Affidavit (Exhibit "D1") that she received the Plaintiffs reply to the serious disciplinary charges on 20th March 2008. On 22nd April 2008, she directed Mr Drett to deliver her decisions to the Plaintiff, but the Plaintiff did not receive them until 24th April 2008. Again, by a physical count of the days, her decision would have still fallen outside the 21 days by 1 day. That is, counting from 20th March 2008, the 21 days would have expired on 23rd April 2008 because the Plaintiff had received the 8 decisions on 24th April 2008.


31. Which ever way one looks at it, the First Defendant would have still been outside the 21 days time limitation to inform the Plaintiff of her decision under PSGO 15.35(a) above. I am therefore, satisfied that the First Defendant did not inform the Plaintiff of her decision to dismiss him from employment as Acting Director for Health within 21 days. She is in breach of the 21 days time limitation. That being the case, the last issue is the effect of the breach. There is no doubt in my mind that, a breach of the 21 days time limitation renders the 8 serious disciplinary charges which led to the Plaintiff being found guilty and penalized by the First Defendant, null and void pursuant to PSGO 15.35(b) above.


32. In the circumstances, I am satisfied that the First Defendant committed an error of law when she did not inform the Plaintiff of her decision within 21 days after receipt of the Plaintiffs reply to the 8 serious disciplinary charges.
I uphold the application for judicial review on this ground.


Ground 2 - Breach of natural justice


33. The second ground of the application for judicial review is that, there has been a breach of natural justice in that, the Plaintiff was not accorded an opportunity to address or make submissions on penalty before the First Defendant imposed inter-alia, the ultimate penalty of dismissal from employment.


34. At page 10 of his written submission, counsel for the Plaintiff submits that, for the purpose of determining a disciplinary charge against an officer, an officer must be accorded an opportunity to respond to the disciplinary charge. Likewise, if an officer is found guilty of committing a disciplinary offence, he or she must be given an opportunity to make submissions or address the departmental head on an appropriate penalty before a decision is made on the type of penalty to be imposed upon the officer.


35. Counsel refers to a number of National Court judgments to support his submissions in respect of this point like Philip Kamo -v- The Commissioner of Police & Ors (2001) N2084; John Magaidimo -v- Commissioner of Police (2004) N2752; Pierson Joe Kamangip -v- Bernard Orim & Ors (1998) N1695 as opposed to John Unido -v- Sam Inguba, Commissioner of Police (2003) N3369.


36. In John Kamo’s case (supra), Injia J, (as he then was) held the view that conviction and penalty are two distinct processes and a person affected by the decision must be heard on both conviction and penalty. He said:


"In my view, it is only a natural extension of the principle of the audi alteram partem leg of the principle of natural justice adopted in Section 59 of the Constitution, and applied in such cases as Kelly Yawip and Pierson Joe Kamagip that the opportunity to address on penalty be given at the appropriate time; before the punishment is determined and pronounced. This opportunity follows a finding of guilt on the charge and it is separate from the first opportunity to reply to the charge given when the charge is first served on the member. The issues of liability and penalty are inseparable facets of the disciplinary process and it would seem quite absurd that whilst the member charged is given an opportunity to be heard on the issue of conviction, he is not heard on issue of penalty. It is clear to me that the Police Commissioner has wide discretion to consider a range of penalties ranging from a reprimand to dismissal, and it is only fair and just that before exercising his discretion as to what punishment to impose, he should inform the member that he has been found guilty on the charge and invite the member to address him on penalty. Just as the opportunity to be heard on conviction is fundamental, so is the opportunity to be heard before penalty is imposed so fundamental to a fair hearing in a disciplinary hearing. Failure to observe this basic requirement of natural justice will inevitably invalidate the penalty imposed."


37. In John Magaidimo’s case (supra), Gavara Nanu J, also expressed similar sentiments to that of Injia J, (as he then was) where His Honour said that where an administrative body is left with a discretion to impose a wide range of penalties prescribed by legislation with dismissal being the maximum penalty, the Court must observe the following:


"I make two observations regarding the possible penalties that could have been imposed on the plaintiff under s.46 (4). Firstly, as it can be seen above, the first defendant had very wide discretion in deciding on the penalty for the plaintiff. Such penalty included any of the penalties for minor disciplinary offences prescribed under s.45 (1) (a) (b) (d) or (e).


Secondly, from the penalties that could be imposed on the plaintiff, the first defendant decided to impose the maximum penalty of dismissal.


It is to be noted that the maximum penalty was not automatic nor was it fixed. This is also made clear by s.61 which deals with dismissal. It provides:-


S.61 Dismissal.


Where under this division, the dismissal of a member of the Regular Constabulary Branch is recommended to the Commissioner; (and in the case of a recommendation for the dismissal of a Commissioned Officer, the dismissal has been approved by the Minister), the Commissioner may dismiss the member or may impose such lesser penalty prescribed by this Act for the offence as he thinks proper. (my underling).


So under s. 61, in deciding whether to impose the penalty of dismissal of a regular member of the Police Force as in this case or on a Commissioned Officer upon approval by the Minister, the first defendant has a wide discretion. In other words, he has the discretion to impose a penalty other than dismissal."


38. His Honour went on and said:


"The Police Force Act does not specially express the need to observe principles of natural justice, but it is clear that the principles of natural justice had to be accorded to the plaintiff, especially when the penalty imposed was the maximum and where the first defendant had the discretion in deciding on the appropriate penalty for the plaintiff."


39. In John Unido’s case (supra), Gabi J, held a differing view to that of Injia J, (as he then was) and Gavara Nanu J, where he followed the view expressed by the Kapi DCJ, (as he then was) in Pierson Joe Kamangip’s case (supra) where he said:


"The proper approach in determining the issue in the present case is to consider whether as a matter of construction of the Police Force Act, the principles of natural justice may be implied before sentence is imposed. This is the same approach taken by Injia J. in Dicky Nanan v John Maru & Police Commissioner (supra) in relation to whether or not a member is entitled to receive copies of statements or reports which form the basis of the charge. I have already concluded (following Injia J.) that by necessary implication of Police Force Act (s 46), a member charged with a disciplinary offence is not entitled to be served with the evidence, information and reports which form the basis of the charge. It follows from this that there can be no assumption that the principles of natural justice apply.


I have reached the conclusion in construing the whole of s 46 that the legislature intended to regulate the procedure of disciplinary hearings by the provision s of the Act. The provision set out in detail what is to take place. Where the provision excludes what may be regarded as common law principles of natural justice either expressly or otherwise, they will not be implied by the Court. That is the rationale of the decision in Dicky Nanan v John Maru & Police Commissioner (supra) with which I agree. If the legislature intended that a member should be given an opportunity to make any comment before penalty is imposed, it would have provided that the member should be invited to make any comments before penalty is imposed in the same way he is given an opportunity to make a reply or give an explanation under s 46 (3) (b). The provision goes on in s 46 (5) to simply require that member be notified of the penalty that is imposed. There is no provision for the member to respond before penalty is imposed. I find that by necessary implication s 46 excludes any such right in the member to make any comments before penalty is imposed."


40. His Honour, in concluding made the following observations:


"A principle of common law may be modified, varied or excluded by a statute. Where a statute confers power upon a person to dismiss a person from a position, the rules of natural justice and standards of fairness recognised by common law will be applied unless there is legislative intent to exclude the rules of natural justice (see Iambakey Okuk v Falscheer [1980] PNGLR 274 and Dicky Nanan v John Maru & Police Commissioner (1997) N1507).


Section 23 (3) is quite clear. It provides that a person charged must be promptly served with the charge and the reports that are to be considered in relation to the charge and be invited to reply to the charge within a certain period. There is no provision in the Police Act which entitles the person affected to be heard on penalty. I am of the view that the common law rule that a person is entitled to be heard on penalty in disciplinary proceedings is by necessary implication excluded. It does not apply and I cannot imply that in the Act. Accordingly, I find that John Unido was not entitled to be heard on penalty."


41. On my part, I will follow the approach taken by Injia J, (as he then was) in John Kamo’s case (supra) and Gavara Nanu J, in John Maigaidimo’s case (supra). I take this approach because, in my respectful opinion whilst section 52 of the PSM Act does not expressly provide for a separate right to be heard on penalty after a finding a guilty in respect of disciplinary charge(s), there is a need to observe the principles of natural justice, especially in cases like in this case where the decision maker has a wide discretion to impose a wide range of penalties on the officer.


42. For example, for a public servant like the Plaintiff in this case, a departmental head has a wide range of penalties at his discretion under section 52(5)(a)-(e) of the PSM Act to impose on the Plaintiff, found guilty of committing serious disciplinary offences. It should be noted that section 52(5)(e) above provides for the penalty of dismissal from the Public Service.


43. As such, it is my respectful opinion that, it is important that the decision maker must consider the officer’s submission before he decides on an appropriate penalty to impose on the officer, especially where dismissal from employment is a maximum penalty and at the disposal of a decision maker to impose. It is also my respectful opinion that since the decision maker is given the power to make a decision on the plight of another person, that power must be exercised fairly and not arbitrarily.


44. This is where I consider the duty to act fairly as enshrined in the Constitution under section 59 relevant and must be taken into account by a decision maker when faced with the task of making a decision concerning another person. If, a decision maker gives the person an opportunity to be heard on the penalty before passing judgment upon him or her, justice would be served and there will be no complaints made against the decision maker.


45. Further, I respectfully disagree with the submissions of the Defendants’ counsel that section 52(4)(b)(ii) of the PSM Act, does provide for the right to be heard on penalty after finding of guilt of which the Plaintiff failed to utilized, hence is precluded from complaining about its breach arising from his own ignorance. With respect, that is not what section 52(4)(b)(ii) of the PSM Act says. In my respectful opinion, section 52(4) of the PSM Act should be read as a whole and also with section 52(5) and if construed in that manner, this is what section 52(4)&(5) means.


46. Once an officer is served with disciplinary charges, the officer is first required to reply in writing stating whether he admits or denies the truth of the disciplinary charges. This is the first part and is analogous to entering a "plea" in criminal proceedings. The second part is where the officer is required to give an explanation to the disciplinary charges regardless of whether he denies or admits them. If the reply is not given within 7 days after receipt of the notice of the disciplinary charges, he is deemed to have admitted the truth of them. This part is again, analogous to the defence of the charge in criminal proceedings.


47. The third part is where if after considering reports relating to the offences and disciplinary charges, explanation of the officer and any further report, the departmental head then makes a decision whether the disciplinary charges are sustained and then proceeds to impose one or more of the penalties specified under section 52(5)(a)-(e), on the officer. This part is again, analogous to the deliberation and verdict in criminal proceedings.


48. In my view, these three parts of the disciplinary process relate only to the question of guilt. They do not provide for nor do they allow room for the officer to be heard on the question of penalty before a decision is made on the kind of penalty or penalties to be imposed on him or her by the departmental head. This is where I disagree with the defendants’ counsel’s submission that, an officer has a right to be heard on the question of penalty under section 52(4)&(5) of the PSM Act.


49. In the present case, it is not denied by the Defendants that they did not give the Plaintiff an opportunity to be heard on penalty before imposing the various penalties on him. See paragraph 10 of the Affidavit of Simon Passingan (Exhibit "D2"). They however, argue that, in so far as the decision to dismiss the Plaintiff from employment is concerned pertaining to the 2 motor vehicle accidents, they are not obliged by law to give the Plaintiff the opportunity to be heard on penalty because two of the disciplinary charges were criminal in nature in that, the Plaintiff was convicted by the Kavieng District Court for two separate traffic offences which called for automatic dismissal from employment by virtue of section 53(2) of the PSM Act. That section states:


"53. Officer charged with criminal offence.


(1) Where an officer other than a Departmental Head is charged by Police with having committed a criminal offence he shall -


(a) where the criminal offence relates to the duties of his office - be suspended without pay by his Departmental Head; or


(b) where the offence does not relate to the duties of his office - be suspended on full pay by his Departmental Head.


(2) Where the officer is convicted of an offence which relates to the duties of his office by a court of competent jurisdiction, he shall be dismissed from the Public Service by the Departmental Head.


(3) Where the officer is convicted of an offence which does not relate to the duties of his office by a court of competent jurisdiction, he shall be dismissed by the Departmental Head, unless the Departmental Head otherwise determines." (Underlining is mine).


50. In order to determine whether the penalty of dismissal from employment is automatic for these 2 criminal offences relating to the Kavieng District Court convictions for the two motor vehicles accidents, it is important to first determine whether the 2 criminal offences are related to the duties of the Plaintiff office.


51. In my view, this is not a case where the Plaintiff was convicted of an offence relating to the duties of his offence like stealing or misappropriating donor funds allocated for projects in the health sector of the New Ireland Province. I think a good example and of course, a guide for us, of a case arising from a criminal offence relating to the duties of an officer’s office is the case of The State -v- Guai [1990] PNGLR 162; (1990) N837. There, the prisoner, the then Commander of Bihute Corrective Institution pleaded guilty to and was convicted of misappropriating K100.00, the property of the State.


52. In deciding an appropriate sentence for the prisoner, the then Commissioner for CIS, Mr Michael Mondia pleaded with Brunton AJ, for a lenient sentence to be imposed on the prisoner because such a criminal offence committed by the prisoner attracted an automatic dismissal from office by virtue of PSGO 8.10. Given the seriousness of the offence, His Honour made the following observation in relation to the question of automatic dismissal:


"The Service cannot afford to keep those convicted of crimes of dishonesty. In those circumstances the General Orders are quite correct; after conviction of an offence which relates to the duties of office - dismissal."


53. Thus, it is clear that, where an officer is convicted of a criminal offence relating to the duties of his or her office, by operation of law under section 53(2) of the PSM Act, the officer shall be automatically dismissed from office. In other words, there is no discretion. The departmental head must dismiss the officer right away.


54. But it is my respectful opinion that, in the present case, the 2 criminal offences of which the Plaintiff has been convicted of by the Kavieng District Court do not directly relate to the duties of his office, even though the two motor vehicles involved in the accidents were owned by the New Ireland Government. This is because they occurred "outside" his office or had no direct connection to his duties and functions as Acting Director for Health and when I consider the 2 criminal offences which have led to the 2 serious disciplinary charges laid against the Plaintiff in light of section 50 (Disciplinary charges) of the PSM Act, I am unable to say that they relate to the duties of his office.


55. As such, section 53(2) above does not apply. In other words, dismissal from employment is not automatic. This in turn means, section 53(3) above applies and the First Defendant should have given the Plaintiff an opportunity to be heard on penalty before imposing the penalty of dismissal from employment upon him. This is necessary because in my view, the First Defendant has a wide range of penalties to impose on the Plaintiff under section 52(5)(a)-(e) of the PSM Act. Hence, in order to exercise that discretion properly, she must give the Plaintiff an opportunity to be heard on the kind of penalty or penalties she would impose on him before making her decision.


56. Equally important is that, there may be important mitigating factors which maybe relevant and act as factors determinative of the kind of penalty or penalties that may be imposed on the Plaintiff like for example, years of work experience of the Plaintiff and qualification of the Plaintiff that ought to be put forward to the First Defendant for consideration but may not be done because the First Defendant proceeds to make a decision without hearing the Plaintiff on the premise that no such right is available under the 52(4)&(5) of the PSM Act to accord to the Plaintiff.


57. As I have found above, the 2 criminal offences do not directly relate to the duties of the Plaintiffs office, hence there is still a discretion given to the First Defendant to impose penalties other than dismissal from employment and Public Service and she ought to have given the Plaintiff the opportunity to address her on the question of penalty in respect of disciplinary charges 9 and 11. Since she has not done so, I find that the Defendants have breached the Plaintiffs right to be heard on the question of penalty in so far as the 2 decisions in relation to the serious disciplinary charges involving the 2 motor vehicle accidents are concerned.


58. In so far as the penalties of reduction in pay and demotion in position in respect of the other 6 serious disciplinary charges where the Plaintiff has been found guilty are concerned, it is my respectful opinion that by virtue of section 52(5) above, the First Defendant is required to give the Plaintiff an opportunity to be heard before imposing those penalties upon him.


59. For these reasons, I am satisfied that the Plaintiff has also made out the second ground of review and will uphold the application on this ground.


Appropriate reliefs


60. Since I have upheld both grounds of judicial review, the last question is what relief, if any should be granted? This sort of issue was explained by the Supreme Court in Mision Asiki -v- Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797 in these terms:


"It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case for a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court. As Sheehan J, stated in Tohian -v- Geita and Mugugia (No 2) [1990] PNGLR 479:


... in judicial review, even though the court might find there has been an error, even an error affecting matters of jurisdiction, the court would not thereby be obliged automatically to quash the ... proceedings. The remedies available under judicial review remain always at the discretion of the court and will only be granted to avoid injustice.


The court must therefore look at all the circumstances of the case and decide whether it is appropriate to grant a remedy; and if it is, what the remedy should be. It is not a formality. The court should generally only consider granting a remedy that has been specifically sought by the applicant for review or that would serve a useful purpose."


61. From the above judgment of the Supreme Court, it is clear that first, a grant of a remedy is at the discretion of the Court and secondly, the Court must look at all the circumstances of the case before granting a remedy. The objective of this exercise is that, whatever remedies the Court grants must serve a useful purpose. Of course, the Court’s discretion must be exercised on proper principles and proper grounds.


62. So, what are the proper principles and proper grounds by which the Court may exercise that discretion?


63. Injia DCJ, (as he then was), in Isaac Lupari -v- Sir Michael Somare, Prime Minister, NEC & The State (2009) N3476 lists five guiding principles and grounds for the Court to take into account when determining whether or not to order reinstatement of a dismissed officer. I summarize them below:


1. where the relationship between the employer and the employee prior to and subsequent to the dismissal has completely or seriously broken down to such an extent that mutual trust required of each other no longer exists or that their relationship has become noxious to either one of them, mandatory injunction will not be granted to compel either the master or the servant or both to continue a personal relationship.


2. where damages, rather than specific performance or mandatory injunction or reinstatement, is usually the appropriate remedy for breach of contract for personal services.


3. where the conduct of parties and in particular, the conduct of the Plaintiff which led to his dismissal is relevant to determine if he has come to the Court with clean hands. Conduct means the whole of the Plaintiffs conduct in so far as they relate to and are relevant to the public position he occupies and the efficient performance of his duties, work attitude or work ethics.


4. where the public interest in the good administration of the office which the Plaintiff has previously occupied must justify his reinstatement.


5. where the position that the Plaintiff once occupied is available or vacant at the time of trial to be filled by an acting or substantive appointment.


64. I am aware that His Honour’s decision in Isaac Lupari’s case (supra) has been appealed to the Supreme Court, nonetheless, in my view, the above decision succinctly and correctly states the principles of law in respect of dismissed public office holders and public servants seeking reinstatement to their former positions within the public service. Hence, I will apply them in my deliberation hereunder.


Reinstatement


65. Bearing in mind these principles, in the present case, the Plaintiff seeks reinstatement to his former position within the New Ireland Provincial Administration as one of the remedies in the Originating Summons. The question is, should the Court order the Defendants to reinstate the Plaintiff to his former position?
I take into account the undisputed evidence of the Plaintiff in his Affidavit (Exhibit "P3") that he possesses a Diploma in Environmental Health Science from the College of Allied Health Science in Madang in 1983 and commenced work with the New Ireland Provincial Administration on 15th March 1983 as its Environmental Health Officer. He also obtained a Post Graduate Diploma in Community Health at the University of Papua New Guinea in 1994 and thereafter a Masters Degree in Tropical Health at the University of Queensland in 1998.


66. I also take into account his evidence that at the time of dismissal, he was occupying the position of Acting Director for Health in the New Ireland Provincial Administration at Grade 16 and earning a gross salary of K699.98 per fortnight. At the present point in time, he is doing research for his Doctorate degree.


67. As I said above, the evidence of the Plaintiff in respect of his qualification and experience as a person working in the health sector of the Public Service and in particular, the New Ireland Provincial Administration is undisputed and I accept them. That being so, there is no doubt in my mind that the Plaintiff is well qualified to hold the position of Acting Director for Health in the New Ireland Provincial Administration.


68. On the other hand, there is no evidence before me to either suggest that, the position of Acting Director for Health has been occupied by a person qualified as the Plaintiff or occupied by another officer on an acting basis until a permanent appointment is made and I am quite amazed that the Defendants have not put such evidence before me because it would be quite odd and unrealistic that no-one is occupying that position at this point in time, especially when it is the top post in the health sector of the New Ireland Province.


69. In the absence of evidence to the contrary, I am led to conclude that the position is vacant and the Plaintiff is the most suitable person to hold that position given his qualification and experience to perform the duties and functions of that position. It is no wonder the other public servants including a politician have thrown their support behind him to be reinstated to that position.


70. First, there is the letter from the Acting Chief Executive Officer of Kavieng General Hospital dated 4th February 2009, marked as Annexure "C" to the Affidavit of the Plaintiff (Exhibit "P3") and secondly, the letter of recommendation from the Member for Kavieng Open, Honourable Martin Aini dated 2nd April 2009, marked as Annexure "D" to the Affidavit of the Plaintiff (Exhibit "P3") before me requesting the decision maker to reinstate the Plaintiff. These persons who have called for the reinstatement of the Plaintiff are no ordinary people. They are senior public servants and political leaders of the province who have worked along side him over the years and have seen how well he has worked.


71. Therefore, in my view, to order the Defendants to reinstate the Plaintiff to his former position would not cause any inconvenience to the due administration and smooth flow of things in the administration of the New Ireland Province but instead restore stability and confidence in the administration of the New Ireland Provincial Administration in so far as the health sector is concern. Further, there is also undisputed evidence before me in paragraph 8 of the Plaintiffs Affidavit (Exhibit "P3") that he is involved in securing and managing donor funds in the health sector in the New Ireland Province. His reinstatement will no doubt bring more accountability and prudent management of donor funds in the health sector of the New Ireland Provincial Administration.


72. Further, the Honourable Martin Aini as member for Kavieng Open and Chairman of Joint District Planning & Budget Priorities Committee ascribes to the Plaintiffs ability to handle multi million kina donor and government funded projects in the New Ireland Province. See Annexure "D" to the Affidavit of the Plaintiff (Exhibit "P3") above.


73. In my view, all these evidence go to support the view that to order reinstatement of the Plaintiff to his former position would serve a useful purpose for the New Ireland Province, especially the health sector. The National Court has, in the past, ordered reinstatement of officers who have been dismissed from employment in the Public Service to their former positions. Some examples are Joe Ponau -v- Teaching Service Commission Disciplinary Committee (2006) N3059 and Peter Bon -v- Mark Nakgai, Acting Chief Executive Officer, Wewak General Hospital & Ors (2001) N2123, where the National Court ordered reinstatement of the Plaintiffs after the National Court upheld their applications for judicial review.


74. In Peter Bon’s case (supra), Gavara Nanu J, ordered reinstatement of the Plaintiff, a hospital pharmacist who was unlawfully dismissed even though he did not ask for reinstatement. His Honour did so because he considered reinstatement was a fair and adequate remedy for the Plaintiff in the circumstances of the case given the fact that the Plaintiff was a professional staff with specialist qualification who could be easily and conveniently employed back in the Public Service if not, in the Department of Health.


75. His Honour also considered that the Plaintiffs reinstatement would not cause substantial hardship to any person or substantially prejudice the rights of any person or would be detrimental to good administration. His Honour reached that decision, because he found that the Acting Chief Executive Officer of Wewak General Hospital had no authority to take disciplinary action against the Plaintiff. That authority vests in the Secretary for the Department of Health. Thus, the decision to dismiss the Plaintiff was void from the beginning.


76. In the present case, I do not see any reason preventing me to say that the same considerations in Peter Bon’s case (supra) should apply here. Here is a case where not only does the Plaintiff possess the necessary qualification and experience to hold the position of Acting Director for Health but also has the management skills and ability to lead the health sector of the New Ireland Province in achieving the goals through the various projects already on the ground or yet to be implemented. In my view, his reinstatement would not prejudice anyone but benefit the people of New Ireland Province.


77. Further, all these evidence go to show that the relationship between the Plaintiff and his employer, the New Ireland Provincial Government has not broken down to such extent that mutual trust required of each other no longer exists or that their relationship has become noxious to either one of them, that it would not be ideal to order reinstatement to compel either the Defendants to re-employ the Plaintiff. On the other hand, I am settled in my mind that the Plaintiff and the Defendants still have that mutual trust and working relationship and would be able to work together if the Plaintiff is reinstated.


78. For these reasons, I am inclined to order the Defendants to reinstate the Plaintiff to his former position as Acting Director for Health in the New Ireland Provincial Administration.


Back pay


79. The last issue is back pay. As I have decided to order reinstatement of the Plaintiff to his former position as Acting Director for Health in the New Ireland Provincial Administration, should the Court also order the Defendants to back pay him all the loss salaries and entitlements for the time he was out of employment? This is a debatable subject. The Courts have held differing views on it. There is one view that, there should not be an order for back pay to an officer who has been successful with his or her application for judicial review for the simple reason that as the officer has not worked during the period he or she was out of employment, why should he or she be paid salaries and entitlements for the time he or she had not worked? For, to do so would amount to unjust enrichment.


80. On the other hand, there is the other view that the officer should be back paid all his salaries and entitlements for the time he or she has been kept out of employment. This proceeds from the argument that, had it not been for the illegal actions or decision of the decision maker to dismiss the officer, the officer would have been working and would have earned such salaries and entitlements. The second view has received much support from a number of judges of this Court like in the case of Peter Luga -v- Richard Sikani, Commissioner of CIS (2002) N2285, where Sakora J, ordered the Defendants to back pay the Plaintiff after His Honour upheld the Plaintiffs application for judicial review.


81. The other case is Clement Kelipak -v- Ellision Kaivovo (2003) N2402, where Lenalia J, ordered the Defendants to back pay the Plaintiffs salaries and entitlements to the date of dismissal after he found that the decision of the Defendants to dismiss the Plaintiff from employment was illegal because first, the Defendants acted ultra vires their powers and secondly, acted in breach of the principles of natural justice.


82. In the present case, I do not need to make an order for back pay because there is evidence in paragraph 7 of the Affidavit of the Plaintiff (Exhibit "P3") that after he was dismissed from employment, he is still on the payroll of the New Ireland Provincial Government and receiving pay. He says that, that is the understanding reached between him and the New Ireland Provincial Administration, since he is pursuing this application for judicial review in respect of his dismissal. There is also evidence of pay slips of pay period 11th September 2008 to 24th September 2008 and 09th October 2008 to 22nd October 2008 in Annexure "D" to the Affidavit of the Plaintiff (Exhibit "P3") confirming that the Plaintiff is still receiving pay even though he was dismissed from employment on 23rd April 2008.


83. In reaching this decision, I take note of the Plaintiffs counsel’s submission at p 19 of the written submission that, the Plaintiff only claims loss of salaries and other entitlements from 19th November 2008 to the date of trial and not for the entire period of dismissal. He claims K10,589.70. That maybe well, but the difficulty I have with this submission is that, there is simply no evidence to back this submission that the Plaintiff was put off the payroll by the First Defendant since 19th November 2008. Hence, the only evidence before me is that, he is still on the payroll of the New Ireland Provincial Government until today.


84. For these reasons, I am not satisfied that the Plaintiff has missed out on salaries and other entitlements during the period of his dismissal and I refuse to make any order for back pay accordingly.


Damages for frustration and distress


85. I note the Plaintiffs counsel’s submissions at pages 19-20 of the written submission in respect of damages for frustration and distress. Is this claim permissible in an application for judicial review? Counsel relies on Order 16, rule 7 of the National Court Rules to claim damages.


86. Order 16, rule 7 states:


"7. Claim for damages. (UK. 53/7)


(1) On an application for judicial review the Court may, subject to Sub-rule (2), award damages to the applicant if –


(a) he has included in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and


(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.


(2) Order 8, Division 2, shall apply to a statement relating to a claim for damages as it applies to a pleading."


87. I also take note of the cases that counsel cites in his written submission supporting the claim for damages under this head of claim like Lawrence Sausau -v- Joseph Kumgal (2006) N3253; Peter Aigilo -v- Sir Mekere Morauta, as Prime Minister & The State (2001) N2103; Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958. Except for Lawrence Sausau’s case (supra), the others arise from unlawful or wrongful dismissal from employment cases where the Plaintiffs have sued their respective employers for damages based on breach of contract of employment. In so doing, they have also claimed damages for frustration and distress and were awarded damages by the National Court.


88. In the present case, the Plaintiff has filed an application for judicial review. The primary relief sought by the Plaintiff is to have the decision of the First Defendant to dismiss him from employment quashed on the basis that it is illegal. Following on from this primary relief, the Plaintiff seeks reinstatement and loss of salaries and entitlements and also damages. As for damages for frustration and distress, the Plaintiff has pleaded it as a relief in paragraph 3 of the Originating Summons. He has also pleaded it in paragraph 4(c) of the Amended Statement in Support of the application for judicial review as required by Order 7, rules 3 and 7(1) of the National Court Rules.


89. In my view, the claim for damages for frustration and distress is a consequential relief. That means that, it is not a primary relief sought by the Plaintiff in the application for judicial review like in illegal or wrongful dismissal cases. It is a relief that is granted at the discretion of the Court if the Court is satisfied that first, the decision to dismiss the Plaintiff from employment is illegal and secondly, the Plaintiff has by appropriate evidence establish it. In other words, a claim for damages in an application for judicial review is permissible and maybe considered by the Court in conjunction with the primary relief of certiorari; an order to quash the illegal act or decision of the decision making authority.


90. In Lawrence Sausau’s case (supra), Injia DCJ, (as he then was), apart from awarding damages for loss of salaries and other entitlements, also awarded "nominal damages" for frustration and distress to the Plaintiff on the basis that, the Plaintiff had experienced a lot of anxiety, distress and frustration whilst awaiting the decision of the Board of the Defendants on the disciplinary charge to clear his name. His Honour awarded K3,000.00.


91. Whilst His Honour did not specify the considerations used to reach a decision to award nominal damages for frustration and distress, it seems to me that, His Honour rejected the submission of the Defendants that the Plaintiff had not pleaded or led evidence to establish an award under this head of damages, and went ahead to make an award based on the experience that, in a case of unlawful or wrongful dismissal of employment, one would be frustrated and distressed and would not require "scientific proof by medial evidence or otherwise".


92. In the present case, I am prepared to go along with the reasoning of His Honour in Lawrence Sausau’s case (supra) and will make an award under this head of damages. I accept the Plaintiffs evidence in his Affidavit (Exhibit "P1") that the Plaintiff was psychologically defeated and demoralized and had discovered that his faithfulness and dedication in serving the province had not been taken into account when the First Defendant decided to dismiss him from employment.


93. Counsel submits that, given the great ordeal suffered by the Plaintiff over a period of more than 1 year and the tough economic times, an award of K8,000.00 would be fair and reasonable. I accept the Plaintiffs counsel’s submission that the Plaintiff has experienced some hard times as a result of the decision of the First Defendant. But I think K8,000.00 is a little bit too much, given that the period of dismissal is under 2 years. I award K5,000.00, instead, under this head of damages.


CONCLUSION


94. Whilst it maybe that the 8 serious disciplinary charges against the Plaintiff may have merits, it must be remembered that, "the purpose of judicial review is not to examine the reasoning of the subordinate body with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process." See Kekedo’s case (supra).


95. Hence, when the Court is asked to look at how the First Defendant came to arrive at the 8 decisions, it is clear that first, she failed to comply with the 21 days time limitation under PSGO 15.35(a) and secondly, breached the principles of natural justice when she did not give the Plaintiff an opportunity to be heard on penalty before imposing the various penalties upon him. The penalties imposed by the First Defendant are largely depended on the findings of the First Defendant on the question of guilt and conveying them or informing the Plaintiff within 21 days. As it has been found that the First Defendant’s failure to convey her decisions or inform the Plaintiff of her decisions within 21 days, resulting in the serious disciplinary charges being null and void, it would serve no purpose and of course, without legal foundation to remit the decisions on penalty to the First Defendant to reconsider as suggested by the defendants’ counsel.


96. For these reasons, I am satisfied at the end of the day that the Plaintiff has sufficiently made out his application for judicial review and I uphold it.


ORDERS


97. It follows that there shall be orders in the following terms:


1. An order in the nature of certiorari to remove into this Honourable Court and quash the following:


(a) Charge 3 - That is, as Acting Director for Health, in 2007, the Plaintiff permitted the alteration of figures for officers’ allowances from HSIP funds for work carried out at CDC Lakuramau which resulted in the officers receiving K120.00 more than what they were entitled to receive and was found guilty and fined of K140.00 which is 20% of his gross fortnightly salary.


(b) Charge 4 - That is, in July 2005, the Plaintiff demanded K200.00 travel allowance belonging to Simon Yamin from Joe Kiliahe and did not hand the money over to Simon Yamin to date resulting in HSIP official record showing that the money is yet to be acquitted and was found guilty and had his fortnightly gross salary point 9.5 (K699.98) reduced to 9.4 (K658.24).


(c) Charge 7 - That, the Plaintiff disregarded a lawful order made or given by the Provincial Administrator, Mr Robinson Sirambat on 25th June 2007 directing him to return the vehicle Registration No PAE 048 to the Manager-Transport & Administration Services with immediate effect, but despite the directive, he continued to keep the vehicle at his resident after hours until the vehicle was involved in an accident at Putput village in 2008 and is now of the road and was found guilty and had his fortnightly gross salary point of 9.4 (K658.24) reduced to 9 (K626.91).


(d) Charge 8 - That, the Plaintiff committed a breach of the Public Service (Management) Act 1995, by willfully disobeying the lawful direction given by the Provincial Administrator, Mr Robinson Sirambat on 25th June 2007 for his NIPG driving licence to be suspended, but despite the instruction, he continued to drive NIPG vehicle Registration No PAE 048 thereafter and was found guilty and had his fortnightly gross salary point of 9.3 (K626.91) reduced to 9.2 (K595.59).


(e) Charge 9 - That is, the Plaintiff committed a breach of the Public Service (Management) Act 1995, in that he was convicted by the Kavieng District Court on 14th February 2007, for driving a motor vehicle, Toyota Hilux Double cabin, Registration No LAP 693 without due care and attention which is a criminal offence and was found guilty and dismissed from the Public Service.


(f) Charge 10 - That is, on 11th September 2006, the Plaintiff committed a breach of the Public Service (Management) Act 1995, by not being careful when driving and using a State property, a motor vehicle, Toyota Hilux Double cabin, Registration No LAP 693 which crashed into the mangroves at the side of the road at Lavatbura village, resulting in damage to the vehicle costing the New Ireland Provincial Government K15,691.19 for repairs and maintenance and was found guilty and demoted by one classification level from Grade 9 to Grade 8.


(g) Charge 11 - That, the Plaintiff committed a breach of the Public Service (Management) Act 1995, in that he was convicted by the Kavieng District Court on 13th August 2007, for committing a criminal offence of driving a Provincial Government vehicle PAE 048 without due care and attention upon Mongol street, Kavieng, New Ireland Province and was found guilty and dismissed from the Public Service.


(h) Charge 12 - That, the Plaintiff was incompetent from causes within his control and collided with another vehicle Registration No NAC 157 parked at the front of Joe Tong’s Liquor shop last year in 2007, resulting in your conviction by the Kavieng District Court on 13th August 2007 on a criminal charge and was found guilty and had his fortnightly gross salary point of 9.2 (K595.59) reduced to 9.1 (K564.27).


2. An order that the Defendants reinstate the Plaintiff to his former position of Acting Director for Health in the New Ireland Administration forthwith.


3. Damages in the sum of K5,000.00 for frustration and distress.


4. The Defendants shall pay the Plaintiffs costs of the proceeding to be taxed if not agreed.


5. Time for entry of these Orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.


_________________________________________


Warner Shand Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for Defendants

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