JUDICIAL REVIEW NO. 17 OF 1998
1. THE PERMANENT SECRETARY FOR EDUCATION & TECHNOLOGY
2. THE PERMANENT SECRETARY FOR PUBERVICE COMMISSION
Mr. Amani Vodowaqa Bale and Ms. N. Basawaiya for the Respondents
JUDGMEN
This is a motion for judicial review pursuant to leave granted on 14 August 1998.
The decision impugned is that of the Respondents made on 17 April 1997 whereby the applicant was downgraded from Primary School Teacher
TE07 to TE08 further to disciplinary
proceedings instituted against him by the first Respondent (R1) on 20 January 1997. The decision, in so far as it is relevant, reads
as follows:
Regarding charge 7 Commissioner Hatch noted that:
a) you had not denied the charge;
b) in your explanation you admitted sending the children home so that you together with other staff of Mau Government School could
prepare for a party;
c) you had failed to obtain the Permanent Secretary's permission to close the school, contrary to the instruction published at page
7 of Term III 1989 Education Gazette and the provisions of Regulation 7 of the Education (Establishment and Registration of the Schools)
Regulations.
Commissioner Hatch was satisfied as to the truth of charge 7 and considering the seriousness of the offence of the charge and your
service record decided that you should be and you are hereby downgraded forthwith to be a Teacher (Primary) (TE08) on a salary of
$16,392 per annum in the TE08 grade.
About the applicant & background facts
The applicant who is a graduate of the Nasinu Teachers' College was appointed to the service in January 1972. He was posted to Koro
Village School on 1.1.72 and later to Naroi District School, Vunidawa District School, Rukua District School and then to Mau Government
School in 1990.
On 6 November 1995 there was a complaint against him from a parent about his "no care attitude". An investigation was carried
out and the applicant was asked to reply. Then there were further investigations on 15.11.96 by two Senior Education Officers who
reported that the teacher sent the children home without the approval of the Permanent Secretary for Education (p.1) and that he
was drinking liquor during working hours.
There were other problems about the applicant. On 20.1.97 the applicant was formally charged for committing major offences in accordance
with Regulation 36 of the Public Service Commission (Constitution) Regulations 1990 (the "Regulations"). On 4 February
1997 the applicant responded to the disciplinary charges and gave further explanation as requested.
A Commission submission was prepared and submitted to the PSC Commissioner Hector Hatch who exonerated the applicant on all the charges
except charge 7. The charge was that he:
"Acted without proper authority, that is without the approval of the Permanent Secretary for Education, Women & Culture,
by sending home the students of Mau Government School home after recess on 14.11.96, thereby closing the school for the day, for
the sole reason of using the services of the teachers of the school to prepare for a Fijian Teachers' Association's Branch break-up
party to be held that night."
The decision of 17.4.97 read, inter alia, that "considering the seriousness of the offence of the charge and your service record decided that you should be and you are hereby
downgraded forthwith to be a Teacher (Primary) (TE08) on a salary of $16,392 per annum in the TE08 grade."
Reliefs sought
The reliefs sought by the Applicant are: an order of certiorari; a declaration that the downgrading is unlawfully done in breach of the rules of natural justice and as such is null and void; a declaration that the downgrading was ultra vires Regulation 41 of the Public Service Commission (Constitution) Regulations 1990 and as such the
said decision is null and void; a declaration that the Applicant continues to be at the grade of Primary Teacher TE07 with all the benefits pertaining to the said grade and an
order for damages and costs.
Grounds of relief
There are three grounds of relief. They are:
(a) that the 2nd Respondent in arriving at its decision to downgrade the Applicant one grade to Primary Teacher TE08 had failed to
give the Applicant an oral hearing on the issue of substantiating the charges against him and on the issue of penalty.
(b) That the 1st and 2nd Respondents had failed to comply with regulations 41(4) and 41(6) of the Public Service Commission Regulation
and the 2nd Respondent has failed and/or neglected to satisfy itself in law as to the truth of the charges.
(c) That the decision of the 2nd Respondent is so unreasonable taking into account all the circumstances of the case that the said
decision is a decision, which no reasonable tribunal could arrive at and as such is null and void.
Consideration of the issue
I have before me for my consideration written and oral submissions from both counsel and I have found them to be very useful.
As stated by LORD TEMPLEMAN in REG. v INLAND REVENUE COMMISSIONER Ex parte PRESTON (1985)A.C. 835 at 862 that:
"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach
of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers. Judicial review should
not be granted where an alternative remedy is available."
In a judicial review courts ensure that administrative actions are intra vires and keep within the bounds of their authority. These
actions will be ultra vires if they fail to comply with the requirements of certain statutes and by common law. It is important that
administrative actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions must
be reasonable; they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind, unless
a statute, expressly or by clear implication provides a contrary intention.
This case involves the interpretation of the various statutory provisions referred to hereabove. The Court is required to consider
whether the "process" by which the decision was reached is authorised or valid. The basic question is whether the decision-maker
has acted intra vires or within the discretion conferred reasonably and fairly.
Now I shall deal with the grounds of relief.
In any review of a decision the court is concerned to evaluate fairness. Lord Hailsham L.C. has in Chief Constables of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155 at 1160 very succinctly put the essential function of judicial review thus:
"It is important to remember in every case that the purpose ... is to ensure that the individual is given fair treatment by the
authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of
individual judges for that of the authority constituted by law to decide the matter in question."
First and second grounds
(i) Oral hearing
In the first ground, Mr. I. Fa the learned counsel for the applicant argues that the applicant should have been heard orally on the
question of the disciplinary charge and on the question of penalty. In support of this proposition he refers to the Court of Appeal
case of Permanent Secretary for Public Service Commission and Permanent Secretary for Education v Epeli Lagiloa (Civ. App. No. ABU0038 of 1996 - 28.11.97).
Any determination of an issue of this nature in a judicial review requires a scrutiny of the relevant statute. The regulations that
require consideration are regulation 41 which deal with "major offences" and reg. 51 which provides for 'penalties'.
Regulation 51 provides as follows:
"51. - (1) Anyone or more of the following penalties may be imposed by the Commission by disciplinary proceedings brought against
any officer in respect of misconduct or indiscipline:
(a) dismissal, that is termination of appointment;
(b) reduction in rank, that is, removal to another grade with an immediate reduction in salary;
(c) reduction of remuneration;
(d) no merit increase in salary for a specified period;
(e) fine not exceeding $500;
(f) reprimand.
(2) Where a fine is imposed the amount of such fine shall be deducted from the salary of the officer in such a manner as may be specified
at the time the penalty is imposed."
On the whole of the affidavit evidence before me I find that the Respondents followed the procedure laid down in reg. 41 and there
was no need to give the applicant an "oral hearing" as submitted by counsel. Subject to what I have to say on the aspect
of 'penalty' I cannot see how such an oral hearing would have assisted or enhanced the applicant's case for he had already given
his explanation which was considered by the Respondents before imposing the penalty. The applicant's reply was as follows:
"The children were sent home at 11.00 a.m. on 14/11/96, so that the teachers could prepare for the FTA break-up function. Sir,
this is an internal arrangement that is provided by almost all Head Teachers in schools. This is no different from Ministry Staff
taking time-off office hours to prepare and have the end of the year functions. After all, it had made up for the time prior to the
day mentioned. Also in Fijian customs, it is uncharacteristic for children to be around in such functions".
The R1 prepared a Commission Submission detailing all relevant facts and recommendations of the R1 as required under reg. 41 (vide
annexure 'KPS 13' of affidavit of Krish Prakash Singh being affidavit in Reply to Applicant's affidavit sworn 3 September 1988).
This is what the said submission, inter alia, said: the Applicant "acting without proper authority i.e. the approval of the Permanent Secretary"; "no one other than the Permanent Secretary
for Education, Women and Culture is allowed to close the school for any reason. Approval for closure is normally sought in advance....";
"in this case the school was closed and the children were sent home on the authority of the Head Teacher so that the staff,
including Mr. Sarikulikuli himself, could devote the rest of the day, salaried by the taxpayers of the country, preparing for a break-up
party for the Trade Union to which they belonged."
The recommendation was that the Applicant's explanation was "unacceptable" and that "he must be found guilty as charged".
The Court's duty here is to confine itself strictly to the 'legality' of the decision i.e. whether it was legal or not and not with
the merits of the decision as in an appeal. If the Respondents as administrative authority have acted within their powers and according
to law, then the Court will not interfere unless it is clearly an unreasonable one.
(ii) Natural justice
Counsel has raised the point that the Applicant had been denied natural justice and fairness. There are many cases on the subject
of natural justice. It covers all questions which relate to the manner in which a decision is reached and one of the things here
is whether a person or body affected by a decision has been given a fair opportunity to make representations. Much will depend on
the facts and circumstances of the case and largely relate to the nature of the rights affected and what procedures are necessary
to give the affected party a proper opportunity to fairly put his case. When there is potential for adverse findings which may seriously
affect a party, then one of the things that may be involved is to give an "oral hearing".
The principles governing this aspect of the case has been succinctly stated by Richardson J in the New Zealand Court of Appeal case of Birss v Secretary for Justice [1984] NZCA 24; (1984) 1 NZLR 513 at 516 thus, which I consider pertinent to the consideration of the issue before me;
"The principles of natural justice and fairness have been reviewed in a number of cases in this Court in recent years: see for
example Ronaki Ltd v Number One Town and Country Planning Appeal Board [1977] 2 NZLR 174; Daganayasi v Minister of Immigration [1980] 2 NZLR 130; and, in relation to the administration of s 58, Fraser v State Services Commission [1984] 1 NZLR 116. It is unnecessary to traverse the whole ground again. Paraphrasing what was said in Fraser the requirements of natural justice depend on the nature of the power being exercised, the effect which the decision may have on persons affected by it, and the circumstances of the particular case; where they find
it necessary to do so in order to ensure that the procedure is fair in all the circumstances the Courts will require the adoption
of appropriate procedures or the supplementation of the procedures laid down in the legislation; in determining whether an opportunity
to be heard must be given before a decision potentially adverse to the person is made it is necessary to consider the scheme and
context of the governing statute; and the precise content of the rules of natural justice and standards of fairness have to be tailored
in a realistic way to meet the need of the particular case. In Fraser it was dismissal that was in issue. In that situation there
is what Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, 66 described as "an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without telling him
what is alleged against him and hearing his defence and explanation"; and see also Chief Constable of the North Wales Police
v Evans [1982] UKHL 10; [1982] 3 All ER 141.
The following extract from the judgment of SIR THADDEUS McCARTHY in BIRSS (supra) at 523 is also apt to be borne in mind:
"there is no perfect recipe which covers for all cases what natural justice may require to be done. What is necessary in a particular
case must be determined in the light of the facts of that case. In some nothing beyond ordinary administrative procedures will be
called for; in others much more is necessary. When that is and what should be done is not always easy for a permanent head to decide,
and it ill befits us to be unduly technical or critical. In the final analysis we are concerned with what is fair, and that means
fair between the person concerned. In some situations, as Richardson J points out, a permanent head may have to act immediately and
suspend without notice or without giving an opportunity for discussion."
The case before me is that of an applicant who has been in the service of the Respondents for about twenty-five years which no doubt
is a long time with an unblemished record of service. He could be retiring very soon.
I have no quarrel whatsoever with the process by which the Respondents found the charge proved against the applicant by the application
of reg. 41 but what is a matter of concern is that before imposing the penalty under reg. 51 the applicant was not given the opportunity
of making representations. On the particular facts and circumstances of this case, with long years of service, unblemished record
and when there were no other allegations pending against him, this was a proper case, applying the principles of natural justice
as stated above, the applicant ought to have been accorded an opportunity of making representation and/or oral hearing. Failure to
do so has, in my view on the authorities, resulted in a denial of natural justice.
There was need for procedural fairness. Some of the authorities which point to this requirement are pertinent to the facts of this
case as affecting the career of this long serving Head Teacher who has served in a number of rural schools.
On the aspect of 'procedural fairness' CORNALL v A.B. (A Solicitor) 1995 1 V.R. Sup. Ct. 372 at 395 ORMISTON, COLDREY and O'BRYAN JJ said:
".....in order to show that those entrusted with investigative duties ought to be subject to the obligation to afford procedural
fairness, certainly in circumstances where the outcome of their investigation may directly or indirectly affect the reputation of
the person investigated. We would agree that investigations may in certain circumstances be subject to that obligation but we would
not agree that such an obligation applies in every case, even where reputation may be affected."
The following passage from the judgment of MASON C.J. and DEANE and McHUGH JJ in ANNETTS & ANOTHER AND McCANN & ORS. [170 C.L.R. High Court) p.596 at 598 is also apt in this case:
"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." (underlining mine for emphasis)
The following statement by McHUGH J in JOHNS v AUSTRALIAN SECURITIES COMMISSION [1993] HCA 56; (1993) 178 CLR 408 at 470 effectively states the present test as to exclusion of the rules of natural justice:
"An intention to exclude the rules of natural justice must be clearly evident in the express words of a statute. Such an intention
cannot be gleaned from "indirect reference, uncertain inferences or equivocal considerations". (COMMISSIONER OF POLICE v TANOS (1958), 98 CLR. 380, at p.396).
In CORNALL (supra) at p.395 ORMISTON, COLDREY and O'BRYAN JJ in their judgment said:
"... Nevertheless it cannot be said that every decision requires the decision-maker to afford procedural fairness and it is an
inquiry which can only be answered by looking at the whole of the statute in question. As was said in Ainsworth's case: "Obviously,
not every inquiry or investigation has to be conducted in a manner that ensures procedural fairness" (per MASON CJ. Dawson, Toohey and Gaudron JJ: at 576.
It continues (p.395):
"On the other hand, as was said by the High Court in the passage immediately following that sentence, it does not follow that,
because a body is engaged in an exercise which may be characterised as an inquiry or investigation, there is no duty to ensure procedural
fairness. What is decisive is "the nature of the power, not the character of the proceeding which attends its exercise":
ibid. Thus Ainsworth's case confirms that it is not appropriate merely to characterise a particular process of decision-making as
investigative without enquiring as to the consequences of that investigation."
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." (emphasis added).
On 'rules of natural justice' OGNALL J in R v JOINT HIGHER COMMITTEE ON SURGICAL TRAINING ex parte MILNER (Adm. L.R. 1995 (July 1995) 454 at p.465 quoted the following passage from the judgment of LORD BRIDGE in LLOYD v McMAHON [1987] UKHL 5; (1987) AC 625, 702:
"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 individual 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 All E.R. 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."
As I said before, in this action I am merely concerned with the process or manner in which the decision was reached by the second
Respondent. He was denied the opportunity to make representation and/or be heard orally on the aspect of the penalty to be imposed
in the circumstances of his case for an offence which was a slip which he made in his long career. Perhaps a lesser penalty such
as a reprimand may have been a good enough punishment.
Third ground - unreasonableness
On the third ground of 'unreasonableness' of the decision, I find that the applicant succeeds on this as well.
In administrative law, there is need on the part of a decision-maker to act reasonably and there has to be a reasonable basis for
the decision. Much of what I have said hereabove applies to this head of challenge, namely, 'Wednesbury unreasonable'. The decision I find was unreasonable in the Wednesbury sense for it is not clear what questions the second Respondent addressed its
mind to when considering the 'penalty', in the absence of any reasons for it, it must have addressed its mind to the wrong questions
because had it addressed its mind to the right questions and had still reached the same conclusions its decision had turned out to
be unreasonable on the aspect of 'penalty' to be imposed under reg. 51. In this regard I am guided by what is stated in the following
passage from ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION (1948) 1 KB (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."
The cases of EPELI LAGILOA (supra - FCA), The Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women
and Culture v Lepani Matea (Civ. App. No. ABU0016 of 1998S FCA - 29.5.98) and the judgment of FATIAKI J in The State v Public Service Commission ex parte Michael Raman s/o Chinnaiya (J.R. No. 31/96 - 11.2.98) which have been referred to Court by Mr. Fa are all relevant to the facts and circumstances of this case
in so far the representation and/or oral hearing are concerned on the question of deciding on the type of penalty.
The passage that has been referred to Court from LAGILOA p.16 and relied upon by FATIAKI J in RAMAN (supra) on this aspect is as follows:-
"In our opinion the Commission.....was bound to give the Respondent an opportunity of being heard both on the question whether or not the charge has
been established and on the question of penalty. The words to the effect that the Commission was bound to afford the Respondent an opportunity of being heard are not to be found,
at least expressly, in the regulation. But in accordance with the principles expounded by the judge... The law required the Commission
to administer its statute on the basis that the rules of natural justice applied." (emphasis added).
Although reg. 51 does not state that there ought to be a hearing, it has been held that "although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law
will supply the omissions of the legislature" (COOPER v WANDSWORTH BOARD OF WORKS [1863] EngR 424; (1863) 14 CBNS 180, 194).
Acceptance of this principle is to be found in the judgment of LORD GUEST in WISEMAN v BORNEMAN (1971) A.C. 297 at 310 when he said:
"It is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final question affecting
the parties' rights and duties, if the statute is silent on the question, the courts will imply into the statutory provision a rule
that the principles of natural justice should be applied. This implication will be made upon the basis that Parliament is not to
be presumed to take away parties rights' without giving them an opportunity of being heard in their interest. In other words, Parliament
is not to be presumed to act unfairly. The dictum of Byles J in Cooper v Wandsworth Board of Works, [1863] EngR 424; 14 C.B.N.S. 180, 194 is clear to this effect and has been followed in many subsequent cases."
For a fuller and useful discussion with authorities on the right to be heard on the question of penalty I refer to FATIAKI J's said judgment.
I would conclude with the following statement of SIR JOHN PENNYCUICK in R v BARNSLEY MBC ex parte HOOK (1976) 3 All E.R. 452 at 461 although the case before me is not one of dismissal but the penalty appears to be of greater severity than perhaps warranted:
"It seems to me that the isolated and trivial incident at the end of a working day is manifestly not a good cause justifying
the disproportionately drastic step of depriving Mr. Hook of his licence and indirectly of his livelihood. I would base my judgment
in part on that ground."
For these reasons the application succeeds. It is ordered that certiorari go to quash the decision of the Public Service Commission
contained in the letter of 17 April 1997 AND I direct the Public Service Commission to consider the penalty that it considers appropriate
in the circumstances (if any) under reg. 51 afresh in accordance with this judgment.
D. Pathik
Judge
At Suva
9 November 1998
Hbj0017j.98s
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