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State v Divisional Engineer Northern, Ex parte Yankalu [2003] FJHC 88; HBJ0002J.2001B (13 February 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 2 of 2001

Between:

STATE

v.

1. DIVISIONAL ENGINEER NORTHERN
2. MINISTRY OF WORKS AND ENERGY
3. ATTORNEY GENERAL OF FIJI
Respondents

Ex-Parte: YANKALU
Applicant

Mr. A. Kohli for the Applicant
Mr. R. Green for the Respondents

JUDGMENT

Pursuant to leave granted herein on 22 May 2002, the applicant Yankalu applied for judicial review of the decision of the Divisional Engineer Northern (first respondent - DEN) terminating his employment with effect from 6 February 2001.

Memorandum of dismissal from DEN states as follows:

“On the morning of Thursday, 01.02.01 you were caught by the gateman, Samuela Sagabola taking out of the yard a container of diesel estimated to be more than 20 litres. You had covered the container with empty cardboard and waste papers concealing it and it is indicative of your intention to steal.

You have committed a very serious offence and taking into consideration the provisions of JIC Agreement Clause 37(a) I have no alternative but terminate your service from 06.02.01.

Your service is therefore terminated from 06.02.01 and you are directed to return all government properties issued to you by 4.30p.m to-day.”

Relief

The relief sought by the applicant are:

(a) An order of certiorari to terminate the said decision purported to be made by the first and second respondents into this Honourable Court and that the same be quashed.

(b) A declaration that the respondents acted unfairly and/or abused their discretion and/or arbitrarily and unreasonably and/or acted in breach of the applicant’s legitimate expectations.

(c) Damages.

Grounds

The grounds of relief are that DEN:

(i) acted unreasonably
(ii) took into account irrelevant considerations
(iii) did not take into account relevant considerations
(iv) acted in breach of the rules of natural justice
(v) acted unfairly
(vi) acted in breach of his legitimate expectations
(vii) failed to take into consideration JIC Agreement that existed.

Applicant’s submission

The applicant was an unestablished staff working with the Public Works Department since 1991 as a cleaner until 6 February 2001 when his employment was terminated.

The circumstances which led to his dismissal are that on 1 February 2001 when the applicant reported to work as usual at 9.00a.m and was going to dump rubbish the gatekeeper stopped him and checked his wheelbarrow. There was a container of diesel found stacked under some rubbish. He denied any knowledge of the container and informed the gatekeeper that he had not loaded the wheelbarrow. Then the matter was reported to the personnel officer. The applicant was questioned and taken to the garage where others were questioned and one Rajesh Lal admitted loading the same. The applicant says that he was told to sign a piece of paper but he did not know its contents. His statement was recorded by the police. On 2 February at about 3.30 pm police officers took him to Labasa Police Station. After questioning and recording his statement he was released. The applicant returned to work on 5 February and worked until 4.30 pm when he was called by Raghwa Nand of personnel section and was given a letter of termination.

The applicant says that he was not given a fair hearing and was not heard before his employment was terminated.

Respondents’ submission

The respondents’ argument is contained in the affidavit of Jione Tinfulagi, Administration Officer of Public Works Department. Jione deposed that the investigation and interview of Rajesh Lal and the applicant were carried out by said Raghwa Nand. Raghwa did not file an affidavit. Rajesh Lal admitted, inter alia, that he and one Dewan Chand drained the diesel from a vehicle and put it in a container in the wheelbarrow. Although the defendant says that Rajesh Lal and the applicant signed the statement, he himself was not present. There is no evidence of who explained the contents of the statement. The said Jione said that the ‘Police did not make a thorough investigation’ and that the Police had not replied to their letters. When questioned and also in his alleged written statement the applicant denied the allegation that he “committed theft”.

The said Jione said that Nand submitted his report on his investigation whereupon the DEN exercising his powers under section 37(a) of the Joint Industrial Council Agreement (JICA) terminated the applicant’s employment.

The respondents argue that under the said s.37(a) the termination took place and that as provided under appeal procedure in JICA the applicant should have invoked those provisions if he was dissatisfied with the decision herein. In other words they say that he has not fully exhausted this procedure or avenue before he could apply for Judicial Review.

The respondents say that the applicant has no grounds to review the decision as the correct procedure was followed in terminating his employment. They say that the applicant had committed a ‘serious act of indiscipline which warrants termination’.

Consideration of the application

I have before me for my consideration the affidavit in support of the application and a reply filed by Jione Tuifulagi, the Administrative Officer with the second respondent. There was an affidavit in reply by the applicant. Both counsel made oral and written submissions for their respective clients.

Although Mr Kohli raised a number of grounds he dealt with just these grounds, namely, (a) that the first respondent acted unfairly and in breach of the rules natural justice, (b) that he abused his discretion and that he did not take into consideration relevant matters which he overlooked and (c) that he did not give the applicant an opportunity to be heard before he was given the penalty of dismissal. In fact the rest of the grounds either do not arise or they are irrelevant to the facts of this case. The application can be properly dealt with on the said three grounds and I propose to do that.

In any consideration of an application of this nature it is important to bear in mind that the Court in a judicial review is concerned not as much with the merits of the decision as with the process by which the decision was reached. In Reg. v Inland Revenue Commission, Ex parte Preston [1984] UKHL 5; (1985) A.C. 835 at 862, Lord Templeman on this aspect said:

“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.”

In a judicial review Courts ensure that the administrative actions are intra vires and are 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.

Procedure adopted

I have already stated hereabove the circumstances in which the applicant was dismissed from employment and how the investigations were carried out.

The DEN purported to act under section 37(a) of the JICA to summarily dismiss the applicant. The said section provides:

“(a) For a serious act of indiscipline an employee may be summarily discharged without notice on the authority of an Officer-in-charge”

On the evidence before me I find that the investigation into the alleged attempted theft based on suspicion on the part of the applicant has not been carried out in a satisfactory manner to enable DEN and his subordinate officers to come to the conclusion to which they came. They found him guilty of theft in the face of denial by the applicant that he had any knowledge of the ‘container’ in his wheelbarrow. After all he is a cleaner of 10 years standing and his duty, among others, is to tip the wheelbarrow of any rubbish in it. It is clear that Rajesh Lal is the culprit and he confessed to putting the container in the wheelbarrow. It is also worthy of note that the matter was reported to Police but they took no action and did not even reply to the Respondents’ letters. Presumably there was no substance in the allegation for them to charge the applicant for an offence.

It appears that the applicant had become a victim of circumstances without full and satisfactory investigation on the part he is alleged to have played in the whole drama. He has been penalised on suspicion alone in my view and this cannot be allowed in law to dismiss an employee. This was DEN’s ‘decision’ and therefore it was not necessary to invoke the ‘appeal procedure’ in the JICA prior to instituting the present proceedings.

In these circumstances it is abundantly clear that the manner in which the decision was reached was Wednesbury unreasonable and ultra vires vested in DEN under s.37 of the JICA. Irrelevant matters were taken into account leading to termination. This clearly was an error of law. In such a situation such as this the Court can interfere with the decision by certiorari.

I also find that the penalty imposed, namely, termination is altogether excessive and out of proportion to the occasion (Lord Denning M.R. in Reg. v Barnsley Council, Exp. Hook (C.A.) 1976 1 WLR 1052 at 1057. This is also a ground for review if I am held wrong in my view of the circumstances leading to the dismissal on what I have said hereabove .

Natural Justice

It is well established that before a penalty of such a serious nature is imposed the person affected has the right to be heard. It was held in Dixon v Commonwealth [1981] FCA 77; 55 F.L.R 34 that:

“where a statute confers powers upon a person to make a decision afecting the rights, property or legitimate expectations of a person, the rules of natural justice will prima facie be applicable”. It was further held that “the audi alteram partem rule did apply to s.62(1) of the Act in the absence of any clear legislative intent to the contrary” and that “the appellant was denied the opportunity of being heard to which the rules of natural justice entitled him”.

There was an obligation on the respondent to give notice to the applicant of his intended action and the general reasons therefor so that he could make his submissions. This step becomes all the more important in the light of the fact that the applicant has served the Ministry for 10 years. There certainly was a denial of ‘natural justice’.

The Fiji Court of Appeal in its judgment delivered on 29 May 1998 in The Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women and Culture v Lepani Matea (Civ. App. No. 0016.1998S) dealt with this aspect at some length referring to cases which deal with this subject and I refer to some of them hereunder.

The broad general principle is stated by Lord Diplock in O’Reilly v Mackman [1983] UKHL 1; (1983) 2 AC 237 at p.276 as follows:

“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 civilised 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)

Also in Pratt v Wanganui Education Board and Others (1977) 1 NZLR 476 Somers J quoted Lord UpJohn in Durayappan v Feranando (1967) 2 AC 337 on the question of audi alteram partem when he said:

“A long course of decisions, beginning with Dr. Bentley’s case (1723) 1 Stra 557; 8 Mod Rep 148, and ending with some very recent cases, establish, that, although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature” [1967] 2 AC 337, 348. (emphasis added)

Further in Wiseman v Borneman (1971) AC 297 Lord Wilberforce said:

“..... the legislature may certainly exclude or limit the application of the general rules. But it has always been insisted that this must be done, clearly and expressly.

Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment.”

Finally, on this aspect, the following passage from the judgment of Barwick CJ in Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109 is apt and I have applied this to the facts of this case;

“But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject of the exercise of the statutory power.” (emphasis added)

Looking at the facts of this case and all the circumstances surrounding it, it is abundantly clear that this was one case in which the applicant should not only know the exact basis on which he was terminated but also allowed to make submission to the respondent before and after termination to ensure fairness to the applicant. He must be given the opportunity to state his position. In this case the respondent failed to do so in the manner expected and therefore did not act fairly towards the applicant.

Procedural unfairness

There was therefore unfairness in the manner in which the decision was reached. This is an important head of challenge. There is a duty to act fairly as failure to accord procedural fairness could vitiate the first respondent’s decision. Lord Mustill in Doddy v Secretary of State for the Home Department (1995) 3 All E.R. 92 at 126 has summarized the requirements of “fairness” and I consider them pertinent to this case. Some of these requirements are:

1. ...........
2. ..........
   
3. The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.
   
4. As essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.
   
5. Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.
   
6. Since the person affected usually cannot make worthwhile representations without knowing what factors may-weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.” (emphasis added)
   

On the affidavit evidence before me I find that the said decision is “Wednesbury unreasonable”. On this principle Lord Templeman in the House of Lords case of Brind v Secretary of State [1991] UKHL 4; (1991) 1 All E.R. 720 in 725 said:

“The English courts must, in conformity with the Wednesbury principles (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; (1947) 2 All ER 680, (1948) 1 K.B. 22) discussed by Lord Ackner, consider whether the Home Secretary has taken into account all relevant matters and has ignored irrelevant matters ... If these conditions are satisfied, then it is said on Wednesbury principles the court can only interfere by way of judicial review if the decision of the Home Secretary is ‘irrational’ or ‘perverse’.”

In this case the reason for terminating the applicant’s employment of 10 years’ duration was because he was suspected of ‘theft’ in the face of admission of guilt by someone else, namely, Rajesh Lal. It was an arbitrary decision of DEN on hearing evidence and without full investigation and the so-called inquiry that was carried out; the Police made no comment and took no action. One can draw one’s own conclusion in these circumstances as to the guilt or otherwise of the applicant.

Therefore, the situation as in the present case is reviewable and factors to be borne in mind have been stated very well as follows by Lord Lane C.J. in Regina v Immigration Appeal Tribunal, ex parte Khan (Mahmud) (1983) 2 W.L.R 759 at 762-3:

“Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not.” (emphasis added)

Conclusion

To conclude, by not giving the applicant a proper and full opportunity to respond to the allegation and by not disclosing the full basis on which the decision was reached the first respondent acted ultra vires and denied natural justice to the applicant. The fact that the said respondent was exercising his power under s.37(a) of the JIC Agreement and make a decision affecting the rights of the applicant imposed on him the duty to act fairly arose. This he failed to do. If it is argued by the respondent that he was given a hearing by being asked to explain, the fact that he was not heard at all before the penalty, namely, termination was imposed is fatal to the decision. This statement is supported by Lepani Matea (supra) in the High Court and applied by the Court of Appeal and by the Supreme Court of Fiji in Court of Appeal No. CBT0009 of 1998S. The Court of Appeal in Lepani Matea at p10 of its judgment summarised the position based on the authorities referred to by me hereabove thus:

“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 instrument 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.

In the Supreme Court in Lepani Matea (supra) at p4 it is stated thus on the aspect of being heard:

“There are numerous authorities establishing, at common law, that where someone’s livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it. There is a presumption that natural justice applies; or, as Lord Reid put it in Wiseman v Borneman [1971] A.C. 298, the courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and the additional steps would not frustrate the apparent purpose of the legislation.

In the result, for the above reasons, I will grant the judicial review.

It is ordered that certiorari go to quash the decision of the first respondent of 6 February 2001 terminating the employment of the applicant. The first respondent is ordered to pay the costs of the application in the sum of $500.00.

D. Pathik
Judge

At Suva
13 February 2003