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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. 0016 OF 1994
IN THE MATTER of an application by Epeli Lagiloa of
Lautoka Teachers College, Lautoka, Civil Servant for Judicial Review
AND IN THE MATTER OF THE PUBLIC SERVICE COMMISSION
(CONSTITUTION) REGULATIONS 1990
whereby the Public Service Commission on the 29th day of June, 1994
penalised Mr Epeli Lagiloa for disciplinary offences under the Public Service Commission (Constitution) Regulations 1990.
Between:
EPELI LAGILOA
Applicant
- and -
1. THE PUBLIC SERVICE COMMISSION
2. THE PERMANENT SECRETARY FOR EDUCATION
Respondents
Mr. M. Gago for the Applicant
Mr. S. Rabuka for the Respondents
JUDGMENT
Pursuant to leave granted on 31 August 1994, EPELI LAGILOA (referred to as the "applicant") is applying for judicial review of the decision of the 1st Respondent (referred to as the "PSC") made on 29 June 1994 against the applicant dismissing him from the service "forthwith" in accordance with section 51(1)(a) of the Public Service Commission (Constitution) Regulations, 1990 (referred to as the "Regulations").
The relief sought are as follows:
The grounds of relief are as stated hereunder (as in the Motion):
i) That the first Respondent in proceeding to penalise and impose sanctions on the Applicant on the charges laid against the Applicant by the 2nd Respondent without granting the Applicant a right to be heard on the allegations against him had denied the Plaintiff Natural Justice.
ii) That by the nature of the disciplinary procedure in the Public Service Commission (Constitution) Regulations 1990, and because of the peculiar circumstances of the case and because of the severity of the Penalties imposed, the Applicant had a "legitimate expectation" to a hearing on the allegation against him.
iii) That the 1st and 2nd Respondents in proceeding to discipline the applicant under Section 51 of the Public Service Commission (Constitution) Regulation 1990 was required to obtain from those persons who had direct knowledge of the allegation made against the applicant written statements and to make available to the applicant for his reply if any to such statements before proceeding to consider and determining the charges against the applicant. That the respondents had failed to do the same and as a result that in proceeding to discipline the applicant had acted ultra vires and/or had taken into account irrelevant consideration.
iv) That the decision of the 1st Respondent of the 29th June, 1994 in imposing the said penalties and sanctions against the Applicant taking into account all the relevant circumstances in the case had arrived at a decision that was so unreasonable that no reasonable tribunal or body exercising it's functions in accordance with the established law could arrive at.
The applicant's summons seeking an order that the Respondents be restrained by injunction from effecting the applicant's termination was dismissed by this Court with costs (vide my decision delivered on 10 November 1994).
Thereafter by Notice of Originating Motion of December 1994 the applicant moved the Court for hearing of this matter. At the request of both counsel the matter was adjourned from time to time until it was set down for hearing on 11 March 1996. As Mr. Rabuka was engaged in election matters as Supervisor of Elections, by consent hearing was adjourned to 2 May 1996 when it was heard.
I now turn to the relevant facts.
About the applicant
The applicant began his civil service career as an assistant teacher in 1970 and at the time of his dismissal he held the post of Acting Vice Principal at the Lautoka Teachers College when he was promoted to that post on 25 March 1994 (after serving for about 24 years).
The applicant was dismissed from employment on 29 June 1994 for alleged "misappropriation" of the sum of $10,000.00 in respect of which judgment in default of defence was entered against him on 29 November 1993. After the alleged report (but not produced to Court) was received regarding the alleged misappropriation the applicant was charged with a disciplinary offence under the Regulations for an offence in breach of Regulation 36(t). The charge was to the effect that he betrayed the trust placed in him by the Dawasamu Old Scholars Association and converted to his personal use the Association's money the sum of $10,000 placed in his custody. In the Affidavit the applicant states, inter alia, that he was summarily dismissed without considering the truth or falsity of the allegations against him and without fully complying with Regulation 41 of the Regulations.
The application is supported by an Affidavit sworn by the applicant on 22 July 1994 to which the first Respondent replied by its Principal Assistant Secretary, S. Chand on 17 October 1994. The applicant has sworn to and filed a reply to the Respondent's said affidavit on 22 September 1995.
The further facts in this case are that on 28 July 1995 the said default judgment was set aside (para 3 of applicant's affidavit sworn 22 September 1995). The applicant further denied in the said affidavit that he at any time admit or make a declaration indicating that he admitted misappropriating or converting the said sum of $10,000 nor is there any allegation of a criminal nature against him.
The issues
The issues for the Court's determination are as follows (as in applicant's skeleton submissions):
The Applicant's submissions
The learned counsel for the applicant argued along the lines set out in the grounds outlined hereabove and as stated in his "Skeleton Submissions". I do not wish to reiterate them suffice it to say that I accept his submissions substantially and I shall be referring to them and adopting them hereafter in my judgment.
The Respondents' submissions
The first Respondent has through the said S. Chand stated in the affidavit that he has filed in Reply that the main reasons for instituting Disciplinary Charge and dismissing the applicant whose proper name is Epeli Lagiloaloa was on the basis of the purported admission recorded by a signed declaration of 21 March 1993 and the subsequent civil action No. 779/93 in the Suva Magistrate's Court. He said that this "not only caused embarrassment to himself but also to the Commission. It therefore brought the Public Service into disrepute and he was therefore guilty of a disciplinary offence under Regulation 36(t)" of the Regulations (para 7 of his affidavit).
Mr. Chand said that complaint was received followed by the institution of the said civil action. He said quite categorically that "it was on the basis of the declaration that the applicant signed and subsequent Writ of Summons and Court Order filed and entered in the Suva Magistrate's Court that were relied on by the Commission to dismiss the applicant from the service. It was therefore, legal and within the powers of the Public Service Commission to do such thing" (para. 17 of his affidavit).
The respondents deny that the relevant provisions of the Regulations were not complied with by them. The learned counsel for the Respondents Mr. Rabuka says that by referring to Reg. 41 the applicant is introducing "new evidence" and asks the Court to disregard it. Mr. Rabuka submitted that in his position as vice-principal the applicant should not have allowed to have default judgment entered against him. He says that Reg. 36(t) under caption "disciplinary offences" covers not only criminal offences but also under Reg. 36(t) a case of this kind, namely, civil judgment, and at the time of decision, judgment was in existence.
Consideration of the issues
The disciplinary proceedings were instituted under Regulation 41 of the Public Service Commission (Constitution) Regulations, 1990. Since this Regulation is relied upon heavily I set it out in full. It provides:
"41. - (1) If a Permanent Secretary or Head of Department, or any officer acting properly with the authority of the Permanent Secretary or Head of Department has reason to believe that an officer of his Ministry or Department has committed a disciplinary offence which the Permanent Secretary or Head of Department regards as a major offence (or one of a series of minor offences which should be treated as a major offence) he shall charge the officer with having committed the alleged offence and shall forthwith serve the officer with a written copy of the charge against him and the particulars of the alleged offence, in which event the following provisions of this regulation will apply.
(2) The officer charged shall by notice in writing be required to state in writing within a reasonable time to be specified in such notice whether he admits or denies the charge and shall be allowed to give the Permanent Secretary or Head of Department an explanation if he so wishes.
(3) Where an officer fails to state in writing under sub-regulation (2) whether he admits or denies the charge, he shall be deemed to have admitted the charge.
(4) The Permanent Secretary or Head of Department shall require those persons who have direct knowledge of the allegation to make written statements concerning it.
(5) The permanent Secretary or Head of Department shall forthwith forward to the Commission the original statements and relevant documents, and a copy of the charge and of any reply thereto, together with his own report on the matter and the Commission shall thereupon proceed to consider and determine the matter.
(6) If the truth of the charge is admitted by the officer concerned, or if the Commission, after consideration of the reports and documents submitted to it under sub-regulation (5) and after such further investigation or inquiry as it considers necessary, is satisfied as to the truth of the charge it may, after taking into account the service record of the officer, impose any of the penalties specified in regulation 51.
(7) If any charge is established under the provisions of this regulation and the Commission is satisfied that any act, omission or default involved in that finding resulted in ascertained or assessable damage to property or loss to the Government of Fiji, the Commission may recommend to the Permanent Secretary for Finance that, in addition to any penalty that may lawfully be imposed under regulation 51, recovery of an amount not exceeding the amount of such damage or loss be effected by the Minister responsible for Finance under the powers vested in him by virtue of section 63 of the Finance Act, 1981.
(8) Where the Commission is not satisfied as to the truth of the charge it shall appoint a disciplinary tribunal in accordance with regulation 44." (underlining mine for emphasis)
In a nutshell, as I see it, from the affidavit evidence before me, the applicant was dismissed because of the said civil judgment entered against him further to the alleged complaint to PSC. It is Mr. Rabuka's submission that he should not have allowed judgment against him by default in the position he held. This he says has brought the PSC "into disrepute" and therefore it is a disciplinary offence under Reg. 36(t) of the Regulations which provides:
"36. An Officer commits a disciplinary offence for the purposes of disciplinary proceedings who:
(a) .........(s)
(t) is guilty of any improper conduct in his Official capacity, or of any other improper conduct which is likely to affect adversely the performance of his duties or is likely to bring the Public Service into disrepute or be prejudicial to the conduct of the Public Service ,.....
(u) ....."
I have already stated what the applicant's contention is but his main complaint is that the procedure laid down in Reg. 41 has not been followed before he was dismissed from employment.
This is an application for judicial review of the said decision of the PSC dismissing the applicant from the service for the reason stated hereabove.
Judicial review is a process by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties. The PSC is one such body whose decisions are amenable to judicial review.
In a judicial review the Court's function is to review not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. In CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS, [1982] UKHL 10; (1982) 1 WLR 1155 at 1174 LORD BRIGHTMAN said: "Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made" And as SIR THOMAS BINGHAM MR said on an application for judicial review, in R v CAMBRIDGE DISTRICT HEALTH AUTHORITY ex p B (10.3.95 C.A NLJ March 24, 1995 p.415):
"..... that the courts are not, contrary to what is sometimes believed, arbiters as to the merits of the case of this kind. Were we to express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, then we should be straying far from the sphere which under our constitution is accorded to us. We have one function only, which is to rule upon the lawfulness of decisions. That is a function to which we should strictly confine ourselves."
Before I consider further the case before me, all those who have cast upon them the duty to make decisions should bear in mind the following words of LORD HAILSHAM in EVANS (supra) at 1160 on the purpose of the remedy by way of judicial review under order 53:
"This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner."
I shall now deal with this case with the decision-making process in mind to see whether there was the overall fairness of the procedures involved in the forefront of the particular matters in this case.
Going through the facts and looking at the correspondence and annexures to the applicant's main affidavit in the application and the way the decision was reached makes it a case in which there has been perversity or WEDNESBURY unreasonableness.
I refer to the annexures to the Applicant's first affidavit. It is to be commented that the Respondents have failed to put before the court the alleged signed declaration of 21 March 1993 of the applicant's alleged admission. There is nothing before the Court to show who by name are the complainants and most importantly in what capacity and on what date they complained. Looking at annexure EL'3' dated 11 February 1994 (which is the 'disciplinary charge') the allegation is that the applicant "misappropriated" ten thousand dollars of the Association fund and converted it to his personal use sometimes between 1984 to 1993 but contrary to what the Writ of Summons says, namely, that the misappropriation was in 1992.
The comments I make and the questions I ask are: (a) it is not clear as to whether the proper complainants were before the 2nd Respondent, (b) judgment was for alleged misappropriation in 1992 and not as alleged in annexure EL'3' for period 1984 to 1993, (c) allegation is of a criminal nature and therefore why no criminal action was taken by the complainants?, (d) where is the applicant's written declaration of 21 March 1993 of his admission, if there was one, and this should have been produced to Court for it to see?, and (e) why no action was taken immediately after his alleged admission but instead writing to him some eleven months afterwards? Were the Respondents waiting for the default judgment which was given on 29 November 1993?
If they had a complaint they should have proceeded, if they wished, against him straightaway under the Regulations instead of waiting for the judgment.
There is no evidence that "written" statements were obtained as required under Reg. 41(4). It was mandatory that the respondents do so. In the absence of the said alleged declaration of admission produced to Court, I am not able to give any consideration to that purported document. Might I ask, what is the secrecy surrounding it that it could not have been divulged to Court? Rules provide that "any document to be used in conjunction" with an Affidavit must be exhibited to the Affidavit (THE HIGH COURT RULES, 1988 Or 41 r 11.). Because the document has not been produced and bearing in mind the applicant's denial of the allegation (vide annexure E.L. '14') it should in the interests of justice be ignored for the purposes of this case.
It appears that in this case the alleged complaint is of a criminal nature and therefore a criminal charge would have been more appropriate, if the complainants were serious about their complaint. In a civil action, prior to instituting an action there would have been a demand and a reply thereto for the alleged amount but no such demand notice was produced to Court.
As a result of the manner in which the applicant was dealt with I am of the view that the applicant has been punished twice, that is, once under the civil action and secondly by the PSC by being dismissed. This situation cannot be allowed to stand because of what I have to say about civil judgments hereafter.
The question that loomed large in my mind and I also asked Mr. Rabuka whether it is right to dismiss an officer because there is a civil judgment against him. He replied simply that "it is up to the PSC". There are so many officers who have civil judgments against them, but do they get dismissed? I am sure that is not the position or the attitude of the PSC. If an Officer can be dismissed for civil judgment, then it certainly opens the door to abuse of power and PSC can pick and choose, so to say, who it dismisses.
In this case I am of the firm view that the applicant should not have been dismissed because of the civil judgment. I do not also think that on the facts of this case this is a disciplinary offence under the regulation. There was a time to my knowledge many years ago that there was a regulation that civil servants should avoid getting into debts. In my view, contrary to what Mr. Rabuka says, Reg. 36(t) does not cover a case such as the present.
However, now that the very judgment under which the applicant was dismissed has been set aside, it is obvious that the very foundation on which his dismissal was based has eroded. Would the PSC have dismissed him without the said judgment? It is difficult to say but perhaps not because it did not take action initially immediately pursuant to the alleged complaint, and it waited for eleven months after the judgment and as S. Chand said dismissal was based on declaration and judgment combined.
Here what do I have before me on which to consider the allegation of the Respondents? There is no signed declaration which PSC said it had, and there is no judgment either. There are no "written statements" from "those persons who have direct knowledge" as required to have been obtained under 41(4) about which I shall have more to say later. Then on what basis can the applicant be dismissed? None whatsoever.
The applicant was dismissed, under Reg. 51(1)of the Regulations but before dismissing him the Respondents acted under Reg. 41 but in doing so they did not fully follow the procedure as laid down under Reg. 41 particularly Reg. 41(4). No "written statements" were obtained as the 2nd Respondent was mandatorily required to do. If it was done then there is no evidence of it, Mr. Rabuka did not satisfactorily reply to this argument either in his submission although raised by Mr. Gago. Nor was there any report from the 2nd Respondent as required under Reg. 41(5); the Report is required to be forwarded to the PSC 'forthwith' together with any reply to the charge.
There is no evidence that the provisions of Reg. 41 have been complied with fully apart from a bare statement from S. Chand that there has been due compliance. This is not sufficient for the present purposes.
The Respondents, I find looking at the picture as a whole, have failed to put their cards on the table. Consequently the Court has no alternative but to come to the conclusion that Regulation 41 has not been fully complied with and that as a result there has been a complete denial of natural justice before coming to the said decision.
The process by which the PSC reached the decision was clearly wrong. A clear example of disregard of the rules of natural justice. The following passage from the judgment of LORD DIPLOCK in the Privy Council in MAHON v AIR NEW ZEALAND LTD (1984) A.C. 808 at pp 820-821 on what a decision-maker is required to adhere to before coming to a decision is apt:
"The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made ... The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result."
In these circumstances I find that the PSC has been procedurally unfair and this is quite manifest in the procedure adopted. In a situation such as the present one, it is vitally important that the steps leading up to that decision should be manifestly fair to the party concerned. Here I would have thought, for it to be wholly proper and fair, that the PSC would have given the applicant opportunity to have been heard on the report of the 2nd Respondent, if there was any, and also being served with written statements, if there were any, referred to in 41(4). I would have also thought the PSC would have caused "further investigation or inquiry" (41(6)) particularly in the face of the applicant's denial of the charge. I find that there was a gap about the procedures which should have been adopted. I adopt the words of MACPHERSON J in R v SECRETARY OF STATE FOR EDUCATION and SCIENCE ex parte Islam (ALR 1992 p.177 at 185) in this case when he said:
"The case indicates that parties must be given "a fair crack of the whip". They must be allowed to put their case fairly and fully in accordance with the atmosphere of the case and in accordance with the way in which they are entitled to judge that the case is going"
Here, rather than following the procedure of Reg. 41, the PSC had just by a stroke of the pen after relying on the judgment terminated the applicant's employment without further ado.
To conclude and to sum up, it is obvious from what I have said that there was the procedural impropriety that it amounted to manifest unfairness. There was a denial of natural justice. There was failure on the part of PSC to investigate the allegation particularly when it related to a criminal offence. It is my view that there was no reason to dismiss on the judgment itself in the first place and now when the very foundation has gone that is all the more reason that the applicant should now be exonerated.
When a body such as the PSC performs a quasi-judicial function it is incumbent on it to act in "a judicial spirit in accordance with the principles of substantial justice" (RIDGE v BALDWIN. (1960) AC 40 at 124). Further in ANNETTS AND ANOTHER v McCANN 170 CLR 596 BRENNAN J said:
"Personal reputation has now been established as an interest which should not be damaged by an official finding after an inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made".
In this regard there are dicta in a number of cases which are worth bearing in mind in a situation such as the present.
The following passage from the judgment of MASON C.J. DEANE and MCHUGH JJ in ANNETTS (supra) at 598 is apt:
"It can now be taken as settled that, when a statute confers upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."
In COUNCIL OF CIVIL SERVICE UNION AND OTHERS v MINISTER FOR THE CIVIL SERVICE [1983] UKHL 6; (1984) 3 AER 935 at 950 LORD DIPLOCK said that:
"One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and third 'procedural impropriety'."
It is the third ground which is more relevant in the instant case. On this aspect LORD DIPLOCK in CCSU (supra) at 951 said:
"I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
In the leading case of O'REILLY v MACKMAN [1983] UKHL 1; (1983) 2 AC 237, LORD DIPLOCK observed as follows on the subject of giving a party the opportunity of hearing and of presenting his own case:-
"But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement."
In LLOYD v McMAHON [1987] UKHL 5; (1987) AC 625 at 702, LORD BRIDGE dealing with rules of natural justice said:
"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."
Similar observations were made by LORD LANE in R v COMMISSION of RACIAL EQUALITY ex parte COTTRELL and ROTHON (1980) 3 AER 265, 271 as follows:
"Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly.
Accordingly, before assessing the fairness of the manner in which the decision complained of was taken ..., it is necessary to analyse the context in which [it] was made and the nature of the decision."
Looking at the context in which the decision was made and the procedure adopted clearly show that the mandatory provision in Reg. 41(4) was ignored. The severest possible sentence was passed under Reg. 51(1) without any regard to, inter alia, the applicant's long period of service which is close to retirement. The applicant's livelihood was at stake and yet natural justice and fairness was denied to him even with the judgment being in existence at the time of the decision. This resulted in the decision being unreasonable in WEDNESBURY sense. In this regard I conclude with the following passage from ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION (1948) 1 K.B. (C.A.) 223 at 233-234:
"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."
In the outcome for the above reasons, on normal principles of judicial review this decision should not stand as it was unlawful, arbitrary and unreasonable. I would, therefore, quash it. It follows that the Public Service Commission has never made a proper decision upon the complaint.
The form of relief to be granted on applications for judicial review is always in the Court's discretion.
In the exercise of my discretion I order that certiorari go to quash the decision of the Public Service Commission to dismiss the Applicant from service with the Government of Fiji with effect from 29 June 1994 AND it is further ordered that the applicant be reinstated forthwith on full salary and be paid arrears of salary from date of termination to date of reinstatement.
It is also ordered that the Respondents pay the Applicant's costs of this action to be taxed if not agreed.
D. Pathik
Judge
At Suva
28 June 1996
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