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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
JUDICIAL REVIEW NO. HBJ0032 OF 2001
THE STATE
and
THE SECRETARY, PUBLIC SERVICE COMMISSION
Respondent
Ex parte:
THE PERMANENT SECRETARY FOR FINANCE
SOLOMONE SILA KOTOBALAVU
Applicant
Mr. I. Tuberi for the Applicant
Mr. W. Calanchini with Capt. S. Navoti for the Respondent
JUDGMENT
The applicant Solomone Sila Kotobalavu ( the >applicant=) as Permanent Secretary for Finance has pursuant to Order for leave granted him on 27 September 2001 applied for Judicial review of what he calls the >decision= of the respondent, namely, The Secretary, Public Service Commission (hereafter referred to as the (>Secretary=) made on 19 September 2001 conveying the Commission=s findings of guilt against the applicant on all the six disciplinary charges laid against him.
The >decision=
The so called >decision= impugned is contained in the Public Service Commission memorandum dated 19 September 2001 signed by A Jale, Secretary of the Public Service Commission addressed to the applicant which reads as follows:
At its meeting held today, 19 September 2001, the Public Service Commission considered the five (5) allegations of breaches of the Public Service Code of Conduct filed against you on 06.09.01 by the Secretary for the Public Service, your various responses to the allegations, together with the submission from your solicitor.
The Commission found you guilty on all five (5) allegations.
Before the Commission decides on the imposition of penalty in terms of Regulation 22(a) - (g) of the Public Service Regulations 1999, it has agreed that you be given the opportunity to mitigate before the Commission.
The Commission has decided to meet with you at 10.00 a.m. on Wednesday 26 September, 2001 at the Chairman=s Board Room, PSC, Berkely Crescent, Suva and you are allowed the choice to appear in person or be represented by another person or the combination of both.
Relief sought
The relief sought by the applicant is as follows:
(a) AN ORDER OF CERTIORARI to remove the said decisions (findings) of the Respondent to this Honourable Court and the same be quashed.
(b) A DECLARATION that the Applicant lawfully and legally in exercising his powers vested under section 5 and section 9(2) of the Finance Act 1981 in freezing Suliasi Sorovakatini=s salary.
(c) A DECLARATION that the Respondent was negligent in performing its duty when it failed to transfer or discipline Suliasi Sorovakatini when they were made aware of the allegations against Sorovakatini.
(d) Damages
(e) Costs
Grounds of relief
(a) The Respondent was biased in that it became the prosecutor and judge in the disciplinary hearing.
- (i) The Respondent first made the demand to have Sorovakatini salary released.
- (ii) The Respondent was the writer of the disciplinary charges.
- (iii) The Respondent was also the writer of the decision.
- (iv) The Respondent participated in all the aspect of the disciplinary proceedings.
(b) The Respondent was in breach of the rules of natural justice in:
- (i) failing to give an opportunity to the Applicant to cross-examine the witnesses on the matters before it on the question of guilt.
- (ii) failing to provide an independent tribunal to hear the allegations against the Applicant.
(c) The Respondent was unreasonable in:
- (i) failing to recognise that the Applicant was trying to protect the misuse and mismanagement of the Government Funds at the Ministry of Agriculture, Fisheries and Forests.
- (ii) disciplining the Applicant for lawfully exercising his powers under the Finance Act 1981 to protect further misuse and abuse of the Government funds in the Ministry of Agriculture, Fisheries and Forests.
(d) The Respondent has failed to give any reasons for their decisions (findings)
Background facts
The relevant facts surrounding the judicial review have been summarized by Mr. Calanchini (the Respondent=s counsel) in his written submission which are as follows:
As ordered, I have before me the written submissions from both Counsel. They were very helpful.
I would like to state that most, if not all of the grounds on which relief is sought are the same as in Judicial Review No. 31 of 2001 which was by the same Applicant as in this case except that the employee involved is Suliasi Sorovakatini.
The legal arguments put forward by both counsel are also almost the same as in the said JR 31 of 2001.
Since the grounds are almost identical I will not want to reiterate what I have said in No. 31 of 2001 but I will make certain additional remarks and observations in the light of the submissions made by counsel. I will consider this application under almost the same heads as in No. 31/2001.
Determination of the issues
I find that there was no decision in this case which would entitle the applicant to apply for judicial review under Order 53 of the High Court Rules 1988. The application in other words is premature and the applicant ought to await the finalisation of the matter that is before the Public Service Commission (the >Commission=). The applicant was required to appear before the Commission to consider >penalty= after being found guilty on the disciplinary charges laid against him. He failed to go before the Commission but instead decided to apply for the judicial review of his finding of guilty.
I refer to the Honourable the Chief Justice=s Practice Note No. 1 of 1993 on the subject of >Judicial Review of Interlocutory Orders= and this I have referred in JR of No. 31 of 2001 where in short, inter alia, he states that >the legal profession is therefore requested to note that only in the most exceptional cases will the High Court grant leave judicially to review interlocutory decisions=. There are no >most exceptional circumstances= here. For a detailed consideration of whether there is a >decision= or not see my judgment in JR No. 31 of 2001.
On this aspect alone I dismiss the application. However, in deference to the submissions made by both counsel on various grounds in the application I shall deal with them and make certain observations.
The only >Respondent= in this case is The Secretary of the Public Service Commission (the >Secretary=).
The Secretary has specific functions and takes no part in any decision-making in the disciplinary proceedings. I have dealt at length with his appointment and function as provided under s.17 of the Public Service Act 1999 and I refer counsel to my treatment of this aspect in JR No. 31 of 2001 and would not want to rewrite here what I said there.
In short, the wrong person has been named as the Respondent. The Secretary has no >locus standi= in the present application.
For these reasons, on this ground also I dismiss the application for judicial review.
Other issues
Other grounds for judicial review have been raised by the applicant with which I will deal with as hereunder.
Bias
For the reasons I have stated in JR No. 31 of 2001 no question of >bias= arises in this case. For my consideration of this subject I would ask counsel to read my judgment in JR No. 31 of 2001.
Freezing employee=s salary
The applicant seeks a declaration that he acted lawfully and legally in exercising his power under section 5 and section 9(2) of the Finance Act, Cap. 69 on freezing the salary of Suliasi Sorovakatini, who is an officer and an employee as defined under the Public Service Act 1999.
Because I am dismissing the application on two grounds referred to hereabove I do not propose to deal with this aspect of the matter. Both counsel have made useful written submissions on this matter but unless I have proper or right Respondent or Respondents before me I see no purpose will be served in dealing or determining this issue.
I make similar comment in relation to the allegation of negligence by the applicant against the Secretary when he failed to transfer or discipline the officer when he was made aware of the allegations against the Officer. Similarly, on the question of transfer it appears that it is within the jurisdiction of the Commission under Regulation 13 of the Public Service (General) Regulations 1999 to do so by giving, inter alia, proper notice.
Disciplinary Proceedings, Natural Justice and Right to Cross-examine
It appears that the Commission proceeded to hear the disciplinary charges in accordance with the powers vested in it under section 147 of the Constitution and Regulation 22 of the Public Service (General) Regulations where the procedure for taking disciplinary proceedings in relation to the breaches of Code of Conduct are set out.
Whether or not the correct procedure was followed or not is not for me to decide upon or whether there was a denial of natural justice because the application for judicial review has been made prematurely in my view as I have stated hereabove.
No doubt the applicant cannot or should not be denied natural justice (Regulation 22 of the Public Service Regulations 1999). However when the hearing takes place the Court can then look to see whether he was denied natural justice and whether there was need for an oral hearing, but of course whether there ought to be an oral hearing will depend upon the subject-matter and the circumstances of the particular case.
On the question of right to cross-examine I refer to my judgment in JR No. 31 of 2001 where I have made certain observations.
As for the giving of reasons, that will also depend on the nature of the case. It is not that in every case reasons have to be given. There are many decided cases on this point. However, as far as this case is concerned I am not required to decide on this aspect in view of the reasons I have given for the dismissal of this application. The same comment will apply in the matter of the complaint about unreasonableness of the so-called >decision=.
Doubt has also been cast on whether the applicant has exhausted his alternative remedy of appeal. This is something which the applicant may have to consider when he decides to take a certain course of action in the matter of disciplinary proceedings in due course.
Conclusion
To sum up, as I said in JR No. 31 of 2001, because the wrong person has been named as the Respondent and also because the finding is only interlocutory and no >decision= has been reached in this case it is a premature application for judicial review and for these two reasons particularly, the application cannot be considered as it stands.
Although some observations have been made by me on the various aspects like >bias=, >natural justice= and >cross-examination=, it does not mean that I have made a finding on these matters on the facts of this case. However, if the application comes before this Court free from the shortcomings referred to hereabove by me, these aspects will definitely have to be considered on the whole of the facts once a decision is made.
In this case in the interests of justice, under Order 53 r.9(4) I will remit the matter of the disciplinary proceedings to the Public Service Commission which heard the charges to reach a decision herein possibly by calling the applicant before it as it did by its letter on the question of penalty. Once a decision is reached, the applicant will be at liberty to consider what course of action to take.
For these reasons the application is dismissed with each party to bear his own costs.
D. Pathik
Atg. Judge
At Suva
22 February 2002
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