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State v Permanent Secretary for Education & Technology, Ex parte Ravindra [1998] FJHC 190; Hbj0038j.1997s (29 June 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. 0038/97

THE STATE

v

PERMANENT SECRETARY
FOR EDUCATION & TECHNOLOGY

and

THE SECRETARY
PUBLIC SERVICE COMMISSION
Respondents

ex parte DOREEN ROSE RAVINDRA
Applicant

I.V. Tuberi for the Applicant;
Ms N. Basawaiya for the Respondents

JUDGMENT

The Applicant is a school teacher. She lives with her husband at Lodoni and until the end of 1996 taught at the Lodoni Primary School.

On 12 December 1996 the Acting Senior Education Officer Nausori (on behalf of the 1st Respondent) wrote to the Applicant (Exhibit A to her supporting affidavit filed on 28 October 1997) advising her that she was to be transferred with effect from 20 January 1997 to the Bhawani Dayal Memorial School at Nasinu 9 Miles.

Although it is not absolutely clear when the Applicant received this notice of transfer it is not disputed that on 20 January 1997 she was still at Lodoni Primary School.

On 18 March 1997 (Exhibit E to the supporting affidavit) the first Respondent charged the Applicant with four major disciplinary offences under the provisions of Regulation 41 of the Public Service Commission (Constitution) Regulations 1990 (the Regulations) it being alleged that the Applicant:

(i) had disobeyed the notice of transfer;

(ii) had failed to hand over school property;

(iii) had altered the date on a medical certificate;

and

(iv) had been habitually reporting late to work.

The Applicant was given 14 days to reply to the charges (Regulation 41(2)) and was advised that failure to respond to the charges would be deemed an admission (Regulation 41(3)).

On 20 March (Exhibit F to the supporting affidavit) the Applicant denied all 4 charges.

On 23 September 1997 the First Respondent, pursuant to Regulation 42(5) supplied the Second Respondent with a written report on the matter (Exhibit E to the Affidavit in reply filed 9 April 1998). The report recommended that the Applicant be found guilty of charges 1 and 4 only and that she be reprimanded and fined $500.00.

On 3 October (Exhibit J to the supporting Affidavit) the first Respondent advised the Applicant that Commissioner Hector R. Hatch, having considered the charges, the Applicant's answer to them, the report and the Applicant's "service record and history" had accepted the report's recommendations and that accordingly she had been found guilty of charges 1 and 4, was reprimanded and was to be fined the sum of $500.00. It is not questioned that Mr. Hatch considered himself to be acting under the provisions of Regulation 41(6).

On 28 October 1997 the Applicant commenced proceedings for Judicial Review. After a short hearing leave to move was granted on 12 March 1998. The O53 r5(4) motion was entered on 24 March, a written submission was filed by Mr. Tuberi on 6 May and after a short delay caused by ill-health Ms. Basawaiya's written submission in answer was filed on 16 June. The hearing took place on 22 June.

While it is sometimes said that the O53 procedure for Judicial Review inherently encourages delay my own experience is that this is far from being the case. When, as in this instance Counsel cooperate to comply with the rules and each other and appropriate directions are given by the Court then the matters in hand can be disposed of under the existing procedures with a degree of expedition which I doubt other jurisdictions can match.

As will be seen from his careful comprehensive written submission Mr. Tuberi advanced three basic propositions (2.01 (a), (b), (c)). It was accepted that the third was really part of the second and that essentially what was being submitted was:

(a) that Mr. Hatch had no authority to exercise the disciplinary powers of the Public Service Commission; and

(b) that the procedure followed by the 2nd Respondent both under Regulation 41(5) and under Regulation 41(6) was unfair.

In support of (a) Mr. Tuberi relied on Lee v. Showmen's Guild of Great Britain [1952] QB 329 and the proposition therein contained that:

"While an administrative function can often be delegated a judicial function rarely can be. No judicial tribunal can delegate its function unless it is enabled to do so expressly or by necessary implication".

Mr. Tuberi suggested that on their proper construction Sections 127(3), 157(1) and 157(2) of the 1990 Constitution meant that a single Commissioner (in this case Mr. Hatch) could not exercise the Commission's disciplinary powers. With respect, I disagree. In my view Section 157(2) has no application to the Regulations once a delegation has been made. As I see it the 1990 Constitution by authorising delegation of "any of its powers" has impliedly authorised delegation of the PSC's judicial powers and accordingly this first submission fails.

In support of (b) Mr. Tuberi cited Permanent Secretary for Public Service Commission and Another v. Epeli Lagiloa (FCA Reps 97/578) in which the following passage is to be found at p16:

"The applicable provision is so much of Regulation 41(6) as provides that, if the Commission after consideration of the reports and documents submitted to it under sub-regulation (5) and after such further investigation or enquiry as it considers necessary is satisfied as to the truth of the charge it may proceed to the imposition of a penalty. In our opinion the Commission, if it were minded to take this course was bound to give the Respondent an opportunity of being heard both on the question whether or not the charge had 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 Judges in the two passages which have been cited the law required the Commission to administer its statute on the basis that the rules of natural justice applied."

To this authority should be added the very recent judgment of the Fiji Court of Appeal in Permanent Secretary for the Public Service Commission & Anr v. Lepani Matea (ABU 0016/1998) where the whole question of the general applicability of the rules of natural justice to disciplinary proceedings brought under the provisions of the Regulations was again considered in detail.

At page 10 there is the following passage:

"The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilised legal system that it is to be presumed that the legislative body intended that a failure to observe it would render the decision null and void. If there are no words in the instruments setting up the deciding body requiring that such a person be heard the common law will supply the omission. It will imply the right to be given a fair opportunity to be heard. While the legislative body may exclude limit or displace the rule it must be done clearly and expressly by words of plain intendment. The intention must be made unambiguously clear. Finally we add that what is a fair hearing will depend upon the circumstances of each case; it does not mean that in every case a right of personal appearance must be given."

The question of an officer's right to be physically present and heard during proceedings brought under the Regulations has been a vexed one for many years. While the Public Service Appeal Board existed PSAB v. Mahendra Singh (FCA Reps 82/136) was authority for the proposition that the Board itself could decide on the degree of presence which should be afforded. The PSAB having been abolished this authority is now of limited relevance.

While there is as yet no absolute right to be physically present and heard during the proceedings at either the guilt determination or the penalty determination stage it is clear that an appropriate degree of audience must be afforded. In this case the Applicant was given an opportunity to respond to the charges against her but was given no opportunity at all either to respond to the report or to address on the question of penalty. What materials were taken into account in considering the Applicant's "service record and history" has not been revealed. It is not clear whether their accuracy can be vouchsafed.

Ms. Basawaiya suggested that if a right of hearing were to be afforded both at the guilt and penalty stages then disciplinary proceedings in the Public Service would grind to a halt. In my view however this is not only an over dramatisation of the situation but it also overlooks the fact that administrative procedures must follow the law and not dictate it.

In my view the Applicant (the merits of whose case this Court is not being called upon to consider) was not afforded adequate opportunity to make representations after the report was received either as to her guilt or as to the sentence eventually imposed upon her. In these circumstances I find that there has been a breach of the fundamental requirement for fairness by the Second Respondent and accordingly certiorari will issue to quash both the finding of guilt and the sentence imposed.

M.D. Scott
JUDGE

29 June 1998

HBJ0038J.97.S