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Lomon v Vaki [2016] PGNC 226; N6423 (14 March 2016)

N6423

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 883 OF 2014
BETWEEN


BENARD LOMON

(Plaintiff)


AND
JEFFERY VAKI
(First Defendant)


AND
ROYAL PAPUA NEW GUINEA CONSTABULARY
(Second Defendant)


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Third Defendant)


Popondetta: Toliken J.
2015: 20th November
2016: 14th March

JUDICIAL REVIEW – Application for Review – Review of dismissal of policeman – Grounds of review – Ultra vires – Power to suspend member for disciplinary or criminal charge – Vested in Commissioner for Police – Commissioner has power to delegate – Whether power delegated – Ex parte proceedings – Plaintiff is to provide some evidence to substantiate his allegation on the balance of probabilities – Police Act 1998, ss 17, 28(1), 32(1).

JUDICIAL REVIEW – Procedural and Substantive Ultra Vires – Disciplinary of procedures under Police Act – Appointment of Disciplinary Officer mandatory – No evidence of appointment of Disciplinary Officer – Dismissal appears to be based on Criminal Investigation officer’s investigation report – No evidence that criminal investigator was appointed as Disciplinary officer to investigate Plaintiffs disciplinary offences – No evidence that officer who issued Notice of Penalty for Dismissal was delegated such powers by the Commissioner - Assumption of power to dismiss Plaintiff in absence of proper delegation is unlawful and ultra vires the powers of the Commissioner – Police Act 1998, s 25.
JUDICIAL REVIEW – Unreasonableness – Powers of Commissioner where member suspended for criminal charge under Section 32 of Police Act –Plaintiff dismissed from Constabulary before criminal charge is finalised – Whether Commissioner acted unreasonably when he confirmed dismissal on review instead of waiting for outcome of criminal charge – Commissioner has power to direct stay of execution of a penalty including dismissal – Whether failure to exercise power to stay execution of penalty of dismissal where a member’s criminal case is still pending is unreasonable - Commissioner obliged by Section 32 (3) to lift the suspension of a member who is acquitted of the criminal charge which led to suspension – No utility if members charged with criminal offences are dismissed from the force before their criminal charges are dealt with by an appropriate court – Commissioner acted unreasonably – Orders for reinstatement granted - Police Act, ss 26 (8), 32(3).


Cases Cited:


Kekedo –v- Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Peter Bon –v- Mark Nagkai (2001) N2123
Steven Nining –v- Dr. Nicholas Mann (2013) N5338
Wawia –v- Inguba (2013) N5232


Counsel:
L.B. Mamu, for the Plaintiff
No appearance for the Defendants


JUDGMENT


14th March, 2016


  1. TOLIKEN J: The Plaintiff seeks the review the decision of the First Defendant dismissing him from the Royal Papua New Guinea Constabulary (Constabulary). I granted leave on the 20th of November 2015. The defendants were all duly served. They did not appear when the application for leave was heard and the matter proceeded ex parte. Leave was also granted for the substantive hearing to proceed ex parte since the defendants obviously had shown no interest in defending their actions.

2. The Plaintiff seeks the following reliefs by way of Originating Summons filed on 12th December 2014.


  1. An order in the nature of certiorari to remove to this court and quash the decision of the First Defendant in removing the Plaintiff from his positions as Senior Constable; and
  2. An order in the nature of mandamus requiring the First Defendant to reinstate the Plaintiff to his [substantive] position as Senior Constable; and
  3. An order in the Nature of mandamus requiring the First Defendant to pay “back pay” and other emoluments lost by being unlawfully removed from the date of removal to date of reinstalment; and
  4. Damages for mental distress and anxiety and public humiliation suffered by the Plaintiff and his family after being removed; and
  5. Costs of this application; and
  6. Such further or other orders as this Honourable Court deems fit.

3. The grounds for the review are –

  1. Ultra Vires: Breach of procedure/Procedural Ultra vires

II: Error of Law.

(a) The exercise of power to suspend and or dismiss by persons other than the Commissioner amounts to an error of law since it is the Commissioner that is specifically empowered to suspend or dismiss an officer
(b) There was no disciplinary officer appointed by the Commissioner for Police under Section 24 (1) of the Act to investigate the matter and no report was given to the Commissioner for Police. This amounts to an error of law since it is a mandatory provision.
(c) Alternatively, any appointment of a disciplinary officer by persons other than the Commissioner for Police amounts to an error of law since Section 24 (1) is a mandatory requirement for such appointment to be made by the Commissioner.
(d) The imposition of dismissal before the conclusion of proceedings since the suspension was made under both Sections 28 and 32 of the Act.

III: Natural Justice (Breach of)

(a) The dismissal is unfair because the matter directly relates to the criminal proceedings which is yet to be concluded and in fairness should be put on halt pending the determination of criminal liability taking into account the entire circumstances of the case.
(b) Such a dismissal before the conclusion of criminal proceedings is unfair and unjust when the criminal proceedings is still on when the Suspension Notice makes it clear that the disciplinary proceedings stemmed from or related directly to the criminal actions.

IV: Unreasonableness/Wednesbury Principle


(a) The imposition of the maximum penalty is grossly unreasonable because the failure to record the firearm and the negligence in looking after same equality falls on the O IC - CID and Police Station Commander. Here the plaintiff is treated as the sacrificial lamb that causes the blame of everyone involved.
(b) The quick and haste move to remove and to dismiss the plaintiff from the Force when his criminal proceeding is yet to be concluded is unreasonable.

THE BACKGROUND FACTS


4. Prior to his dismissal the Plaintiff was attached to the Popondetta Police Station. He held the rank of Senior Constable and had served the Constabulary for 21 years.


5. The Plaintiff was charged, on the 26th of March 2013, by Chief Superintendant Victor Isouve, the then Provincial Police Commander (PPC) of Oro Province with four disciplinary offences under Section 20 of Police Act. These were that:

(1) He knowingly failed to disclose the existence of the firearm CHR 23 Gauge Shotgun Serial No. HH429725 (section 20 (1) (2))
(2) Knowingly omit to record the description of the firearm (Section 20 (1) (2))
(3) Improperly deal with the property (Section 20 (1) (a))
(4) Did act in a manner that reflected discredit to the Force (Section 20 (1) (az))
  1. On 27th of March 2013 the Plaintiff was called into the Popondetta Police Station by Inspector Charles L. Winuan. He was interviewed and charged for stealing a firearm contrary to Section 372 (6) (b) of the Criminal Code Ch. 262(the Code). He was detained and released on K300.00 bail.
  2. On the same day he was suspended by Chief Superintendant Isouve pursuant to Section 28 (1) of the Act (Suspension on disciplinary or suspected disciplinary offence) and Section 32 (1) of the Act (Suspension where member is charged with criminal offence).
  3. Inspector Winuan served the Plaintiff his 4 disciplinary charges and his suspension notices on the same day.

9. On 28th of March 2013 Inspector Winuan laid information in the District Court for the charge of Stealing under the Code.

10. On 10th April 2013, pursuant to Section 23 (3) of the Act the Plaintiff replied to the disciplinary charges denying them and further provided an explanation of his involvement in the firearm in question.

11. On 13th January 2014, the Plaintiff was dismissed from the Constabulary by Deputy Police Commissioner Mr. A. Sete pursuant to Section 26 (1) (a) of the Act. Deputy Commissioner Sete further signed the Notice of Penalty on that instant pursuant to Section 26 (4) of the Act.

12. On 17th March 2014, Chief Sergeant Besso Amoko served the Plaintiff his Notice of Penalty or dismissal at the Popondetta Police Station. The Plaintiff applied for review of his dismissal by the Commissioner pursuant to Section 26 (5) of the Act on the 24th March 2014.

13. On the 15th April 2014, the Commissioner advised the Plaintiff that his application for review had been considered but refused.

14. At the time of filing of this application the Plaintiff was awaiting trial in the National Court

15. On the 28th November 2014 the Plaintiff was issued his repatriation tickets to his home Province. On 10th of March 2015 leave was granted for judicial review and the defendants were restrained from evicting the Plaintiff from his residence at the Popondetta Police Barracks.

16. It is to be noted that at the time this application was filed and when leave was granted the Plaintiff was awaiting his trial in the National Court. After a trial though, the Plaintiff was acquitted and discharged on 21st May 2015.


ISSUES

17. The issues for me to determine are:

1. Whether the Plaintiff’s suspension by Chief Superintendant Victor Isouve and the subsequent dismissal by Deputy Commissioner A. Sete amounted to ultra vires?

2. Whether the exercise of powers of suspension and dismissal amounts to an error of law?

3. Whether the dismissal is unreasonable?

4. Whether the Plaintiff is entitled to the remedies he craves from the Court.

THE LAW

18. It is well settled that the purpose of judicial review is to examine the decision making process of public statutory tribunals or authorities. The court is not concerned with the decision or the reasoning behind it with the view to substituting such a decision with its own opinion because it is not an appeal. (Kekedo –v- Burns Philip (PNG) Ltd [1988-89] PNGLR 122) As Cannings J. puts in Steven Nining –v- Dr. Nicholas Mann (2013) N5338:

“Judicial review is about the fairness of the process by which the decision by an administrative body is reached and not the correctness of the decision itself.”

19. The decision of an administrative or subordinate tribunal or body can be declared invalid at judicial review for ultra vires (substantive or procedural), error of law, denial of national justice or for unreasonableness.


DISCIPLINARY PROCEDURES UNDER THE POLICE ACT 1998

  1. Section 17 of the Act provides that in relation to a specific power or function the Commissioner may delegate all or any of his powers except the power of delegation itself.
  2. Part IV: (Discipline) of the Act provides for the disciplinary procedures. Section 20 provides for the disciplinary offences which may be either serious or minor.
  3. Part IV: Division 3 provides for the procedures themselves in dealing with serious offences. Basically where there is reason to believe that a member of the Constabulary has committed a serious offence the member may be charged by the Commissioner or an Officer authorised by the Commissioner to lay charges under Section 19 of the Act. The member is served a copy of his charge and where he requests he shall be furnished copies of all reports pertaining to the charge. The member is then given fourteen (14) days to reply indicating whether or not he admits the charge. Where the member does not reply within fourteen (14) days where he is personally served or within twenty eight (28) days where service is by post, he is deemed to have denied the charge. (see s.23)
  4. After the charge is served the Commissioner shall appoint a disciplinary officer to investigate the matter and report back to him. The disciplinary officer shall consider the reports pertaining to the charge and any reply and explanation by the member charged (if any). The disciplinary officer may also consider other reports as he thinks fit providing that he gives the member the opportunity to reply. (see Section 24)
  5. After completing the investigation the disciplinary officer shall furnish his report to the Commissioner, advising whether in his opinion, the charge had been sustained or not, together with any recommendation for penalty where the charge had been sustained. If the Commissioner agrees with the disciplinary officer that the charge has not been proved he shall dismiss the charge. If, on the other hand, he agrees that the charge has been sustained he shall impose a penalty under section 26 of the Act which may include dismissal of the member and he shall accordingly notify the member. (see Section 25 & 26)
  6. It is to be noted here that where the Commissioner himself imposes a penalty on a member, after considering the disciplinary officer’s report, the Commissioner’s decision is final and not subject to appeal (Section 27). The only option open to the member there is judicial review.
  7. In tandem with his powers to delegate all or any of his powers or functions to a commissioned officer under Section 17 of the Act, the Commissioner may delegate his powers under section 25 (Imposition of penalty where charge sustained) to a disciplinary officer. Such a disciplinary officer may impose a penalty under Section 26 of the Act. Subsection 5 of Section 26 provides that where a penalty is imposed by a disciplinary officer shall within seven (7) days after being notified of his penalty apply to the Commissioner for review. On review the Commissioner may confirm or annul the penalty and his decision is final (Section 26 (7)).
  8. A member charged with a disciplinary offence may be suspended from duty by the Commissioner (or his delegate). The suspension takes effect either before, or at the time of, or after the laying of a charge and may be lifted by the Commissioner. Suspension shall be at full pay, or at such proportion of the full rate as determined by the Commissioner. Where a charge is not sustained, suspension shall be lifted immediately after a decision is made to that effect. (See Section 28)
  9. Section 32 of the Act deals with members charged with criminal offences. It provides that where a member is charged with a criminal offence, he may be suspended by the Commissioner (or his delegate), and during the period of his suspension he shall not receive any pay unless the Commissioner directs otherwise. Pursuant to Subsection (3) of Section 32 the Commissioner may remove the suspension. However, when the member concerned is acquitted of the charge which led to his suspension, and is not convicted of any alternate offence, the Commissioner shall remove his suspension.
  10. It is apparent from the above that the whole disciplinary process under the Act is aimed at according members of the Force or Constabulary charged with disciplinary offences (whether minor or serious) and criminal offences the full protection of the law, and in particular to a fair and just hearing by the Commissioner and his delegates in an impartial manner.

DETERMINATION & CONCLUSIONS ON THE ISSUES

  1. The Plaintiff firstly challenges his suspension and subsequent dismissal on the basis of ultra vires on several grounds. First he contends, and it was submitted in his behalf, that his suspension by Chief Superintendant Isouve was ultra vires because the power to suspend members of the Constabulary is vested in the Commissioner. While it is stated in the Notice of Suspension by Chief Superintendant Isouve that he, as a commissioned officer is authorised by the Commissioner of Police to suspend members of the Police Force under Section 28 and Section 32 of the Act, it is submitted that this does not meet the requirements of Section 17 of the Act. It is similarly argued that it had not been shown that Deputy Commissioner A. Sete had been delegated the power to dismiss the Plaintiff by the Commissioner.
  2. The Plaintiff argues and submitted that no such delegation was made by the Commissioner in both instances. It was submitted that no such written delegation can be seen from the Notices of Suspension and Dismissal.
  3. The Plaintiff relies upon the case of Peter Bon –v- Mark Nagkai (2001) N2123 where His Honour Gavara-Nanu J. considered the issue of delegation when dealing with Section 23 of the Public Service (Management) Act 1995 regarding the power of delegation by a Departmental Head. There the Plaintiff, a pharmacist and Officer in Charge of the Dispensary at the Wewak General Hospital was terminated by the Hospital Management for chewing betelnut at work in contravention of an Internal Circular prohibiting such practice. He was charged and suspended by an Officer other than the Departmental Head or an officer authorised by the Departmental Head under Section 52 (2) of the Public Service (Management) Act. The Plaintiff was later terminated by the Hospital Management. The Notice of punishment under Section 52 (b) of PS (M) A was issued by an Officer who claimed to have been delegated the powers by the Departmental Head though there was no evidence to that effect.
  4. The Plaintiff applied to the Public Service Commission (PSC) for review. His application was successful. The PSC recommended reinstatement, but the Hospital Management refused the recommendations on the ground that the Commission did not seek the views of the Officer who issued the Notice of Punishment.
  5. On judicial review His Honour held, among other things, that the disciplinary charges laid against the plaintiff by an Officer other that the Departmental Head contravened Section 52 (2) (a) of Public Service (Management) Act, that the suspension contravened to Section 52 (2) (b) (ii) of Public Service (Management) Act, and that the Wewak General Hospital Management had no power to terminate – a power vested in the Departmental Head under Section 52 (5) of Public Service (Management) Act. His Honour said:

“A Departmental Head (including the Departmental Head of the Department of Personal Management) may, in respect of an officer or employee or employees included in a class of officers or employees, by writing under his hand delegate to a person all or any of his powers and functions under this Act (except the power of delegation)

Therefore, if those powers are to be excised by an officer other than the Departmental Head, that officer must have proper authority from the Departmental Head and or if the officer uses his delegated power from the Departmental Head, such powers must be specified in writing to the officer personally so that the officer acts within the powers given to him (see Section 23)”

  1. The Plaintiff in the present case contends that the statement in his Notice of Suspension by Chief Superintendant Isouve to the effect that he was a Commissioned Officer authorized by the Commissioner of Police to suspend members of the Police Force was deficient and does not meet the requirement of Section 17of the Act because it does not bear the signature of the Commissioner and the specific powers delegated by the Commissioner.
  2. I agree with His Honour Gavara-Nanu, J’s statement on the need for proper delegation to be proved at the hearing and the reasons behind that delegation as an essential feature of good governance. While the overall management and control of the Department is vested in the Departmental Head (in our case the Commissioner for Police) the act of delegation is an acknowledgement of reality - that the Commissioner or a Departmental Head, for that matter, cannot possibly discharge all his powers and functions for the Department to effectively function. Hence, the Head is empowered to delegate. In the case of the Constabulary, s.17 of the Act empowers the Commissioner to delegate all or any of his powers to a commissioned officer in writing.
  3. So, in the case at hand, did the Commissioner delegate his power of suspension under s.28 and s.32 of the Act to Chief Superintendant Isouve. And by extension did the Commissioner delegate his power of dismissal to Deputy Commissioner A. Sete?
  4. The Plaintiff says that there is no evidence of such delegation in both cases and his suspension and subsequent dismissal were ultra vires the Commissioner’s powers. And he seems to be saying that on his part all that he needs to do is allege that was no such delegation was given, and therefore the defendants must prove that they were in fact delegated the powers they exercised by the Commissioner.
  5. I have no issue with that argument, and if the defendants had defended their actions and gave evidence, they would indeed be required to prove that they in fact had the required written delegation. Unfortunately this matter comes ex parte before me and the least to expect from the Plaintiff is to provide some evidence to substantiate his allegation on the balance of probabilities.
  6. This is not the first case where a member had been disciplined under the provisions of the Act. I am pretty certain that the Commissioner had delegated his powers and functions to certain classes of commissioned officers, and therefore, I am not prepared to accept that the various powers and functions of the Commissioner including the disciplinary powers remain undelegated even after twenty (20) years since the Act was passed in 1998.
  7. On the flip side, numerous cases involving dismissals have come directly to the National Court as a direct consequence of the abolition of the Police Appeals Tribunal under the old Police Act. Numerous dismissals have been over-turned by this court for substantive or procedural ultra-vires and other grounds. I am sure (without the benefit of proper research of course) that some of those cases turned exactly on this point i.e. lack of proof of delegation. Therefore by this time the Commissioner’s Office would have improved the manner in which delegated powers of the Commissioner are prescribed and communicated to members under disciplinary charges or investigations. It does not take too much time and trouble to make reference to the Commissioner’s instruction of delegation and attach a copy to the charge. In that case there will be no issue or argument over delegated powers resulting in less litigation on this issue.
  8. Now, I am quite prepared to turn a blind eye to the Plaintiff’s assertion that his suspension by the Chief Superintendent Isouve’s ultra vires and therefore unlawful for the reasons advanced above.
  9. However, there is more to this case than meets the eye. It appears to me that the disciplinary procedures under the Act were not followed.
  10. And to that end, the Plaintiff’s contention that his dismissal by the deputy Commissioner A. Sete is more troubling to me. The materials before me do not show that a disciplinary officer was appointed to investigate the Plaintiff’s case pursuant to section 23 of the Act. The appointment of a disciplinary officer is mandatory, as well as specific, for each particular case. There is no evidence here that the Commissioner or his delegate (if any) did make such appointment. There is no evidence that he specifically appointed Deputy Commissioner A. Sete to be the disciplinary officer in the Plaintiff’s case. It appears from the material before me that the basis of the Plaintiff’s dismissal was Chief Inspector Charles Winuan’s criminal investigation report into the Plaintiff’s criminal matter. There is, however, no evidence that Inspector Charles Winuan was appointed the disciplinary officer for the purpose of the Plaintiff’s disciplinary matter.
  11. The Plaintiff’s dismissal from the force by the Deputy Commissioner A. Sete would seem to be on the basis of delegation by the Commissioner. However, there is no evidence that the Commissioner did delegate his powers to Deputy Commissioner A. Sete.
  12. In the absence of any evidence that a disciplinary officer was appointed specifically for the Plaintiff’s case, and in the absence of any written delegation by the Commissioner of his powers under section 25 of the Act to Deputy Commissioner A. Sete, a serious breach of the disciplinary procedures under the Act had been committed. Deputy Commissioner A. Sete therefore acted illegally and his decision to dismiss the Plaintiff from the Force was ultra vires the powers of the Commissioner.
  13. The facts of this case are very similar to those in Andrew Wawia –v- Inguba (2013) N5232 (Makail, J) where the Court also found that the mandatory requirements of the disciplinary process under the Police Act including the failure to appoint a disciplinary officer were not followed and declared the Plaintiff’s dismissal illegal and invalid.
  14. The Plaintiff in this case was dismissed from the force prior to the conclusion and determination of his criminal charge. There is nothing wrong with both a disciplinary charge and a criminal charge and suspensions under the relevant provisions of the Act running concurrently, as was the case here. However, when that happens this calls for the exercise of good judgement and reasoning by the Commissioner or his delegates. Would it be reasonable to dismiss an officer for the disciplinary offence when his criminal matter is still pending in the criminal court or should the Commissioner have to wait for the outcome of the criminal matter before he exercises his power to dismiss the officer?
  15. Under section 26 (8) of the Act the Commissioner has the discretion to direct that a penalty shall not be put into execution until confirmed by him. This provision seems clearly to be aimed at situations where the penalty is meted out by a disciplinary officer exercising the Commissioner’s powers under Section 25 of the Act, which appears to be what might have happened in this case. So did the Commissioner act unreasonably when he confirmed Deputy Commissioner A. Sete’s decision to dismiss the Plaintiff?
  16. In the circumstances I think he did act unreasonably. He knew or ought to have known that the Plaintiff’s criminal matter was still pending in the National Court, a fact that would have also been known to Deputy Commissioner A. Sete. With that knowledge Deputy Commissioner A. Sete also acted unreasonably.
  17. In my opinion to dismiss a member of the Police Force on a disciplinary offence when his criminal discharge is still pending in the criminal court is not only illegal but also unreasonable given the fact that the Commissioner has the discretion to stay the execution of a penalty for a disciplinary charge.
  18. We have seen that under section 32 (3) of the Act, the Commissioner is obliged to lift the suspension of a member who is acquitted of the criminal charge which led to his suspension. This provision has no utility if members charged with criminal offences are dismissed from the Force before their criminal charges are dealt with by an appropriate court.
  19. The upshot of all these is that the Plaintiff was not accorded the safe-guards provided him by the disciplinary provisions of the Police Act 1998. The mandatory disciplinary procedures were not complied with, and Deputy Commissioner A. Sete’s dismissal of the Plaintiff was ultra vires the powers of the Commissioner, in the absence of any specific delegation to him by the Commissioner of his powers under section 25 and 26 of the Act, coupled with the fact that no disciplinary officer was appointed to investigate the Plaintiff’s case.
  20. For those reasons, the decision to dismiss the Plaintiff from the Force was illegal and therefore invalid, and this in turn tainted the Commissioner’s decision to refuse to annul the decision to dismiss. There was also an error on the face of the record and the decision to dismiss and the Commissioner’s confirmation of that decision were unreasonable.

ORDERS


  1. The application for review is therefore granted and I therefore order that the decision of the First Defendant to dismiss the Plaintiff from the Police Force to be quashed. I further order that the Plaintiff be reinstated to his substantive position of Senior Constable immediately after the expiry period of the statutory period of appeal which is forty (40) days from today.
  2. Now there is the question of whether the Plaintiff’s salaries should be back dated to the date of his dismissal. The Plaintiff was suspended on 27th March, 2013 with half pay. He was dismissed on 13th January, 2014 some two (2) years two (2) months ago. The Plaintiff was acquitted by the National Court of his criminal charge on 21st May 2015. Had he not been dismissed he would have still been on half pay until his acquittal on 21st May, 2015. It seems fair therefore that he should be back-paid 50% of his salary from the date of his dismissal (13th January, 2014) to the date of his acquittal on 21st May, 2015. From the date of his acquittal (which would have been the lifting of his suspension had the First Defendant and Deputy Commissioner A. Sete not acted illegally and unreasonably) to the date of his reinstatement, I think that the circumstances justify the full payment of his salary from the date of his acquittal to the date of his re-instatement.
  3. I order therefore that the First Defendant back-pays 50% of the Plaintiff’s salary from the date of his dismissal on 13th January 2013 to the date of his acquittal on 21st May 2015, and payment of his full salaries from the date of his acquittal (21st May, 2015) to the date of his reinstatement.
  4. The Plaintiff also claims damages for mental distress, anxiety and public humiliation suffered by himself and his family. In the absence of proper pleadings for this head of relief I will not grant any orders in this respect.
  5. Costs shall be in the cause and will be taxed if not agreed.

Orders accordingly.
_____________________________________________________________
The Public Solicitor: Lawyer for Plaintiff
The State Solicitor: Lawyer for Defendants


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