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Chand v Public Service Commission [2004] FJHC 409; HBC0048.1995L (26 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0048 OF 1995L

BETWEEN:

BIKRAM CHAND
Plaintiff

AND:

PUBLIC SERVICE COMMISSION and
THE ATTORNEY GENERAL OF FIJI
Defendants

Counsel for the Applicant: Mr. Haroon A. Shah
Counsel for the Defendants: Ms. S. Tabaiwalu

Date of Hearing & Judgement: 26 April 2004

EXTEMPORE JUDGMENT

This matter comes to trial by virtue of a Writ of Summons issued by the plaintiff on the 22^nd February 1995. In that Summons the plaintiff pleads his cause of action based upon the termination of his employment with the Ministry of Agriculture, Fisheries and Forests where he was employed as a Senior Fisheries Assistant Officer at Lautoka.

The defendants by the Statement of Defence dated 30^th May 1995 plead that the plaintiff’s appointment was terminated due to his unauthorized absence from the 21^st January 1994 in accordance with Regulation 34(2) of the Public Service Commission (Constitution) Regulations 1990 in that the plaintiff failed to resume duty on the 21^st of January 1995.

I have been asked by counsel for the parties to determine the issue of liability only.

Evidence has been given to the court by the plaintiff and there have been a number of exhibits tendered to the court. The plaintiff says that he proceeded on leave on the 6^th of December 1993 in accordance with an approval granted to him pursuant to his application dated the 21^st July 1993. That application is Exhibit P-1. The approval, Exhibit P-2, grants leave from the 6^th December 1993 to the 6^th January 1994 and requires the plaintiff to resume duties on the 7^th January 1994.

The plaintiff then gives evidence that he ultimately received a memo dated 3^rd December 1993 advising him of his transfer from Lautoka to Lami effective from 4^th January 1994. He says that this memo was received by him on the 5^th January 1994. There is no explanation offered by the plaintiff as to why the memo is dated the 3^rd December 1993 but not receive by the plaintiff until the 5^th of January 1994. The plaintiff’s evidence is not challenged.

The plaintiff then says that he spoke with the Acting Head of the Department, that is, the Acting Permanent Secretary by telephone and sought 18 working days leave commencing on 10 January 1994. The plaintiff says that leave was granted verbally in accordance with his request and produces a memo being Exhibit P-4 which is a memo forwarded by the plaintiff in confirmation of what he says was the verbal approval.

Leave was sought, on the plaintiff’s evidence, to facilitate him organizing the transfer from Lautoka to Lami.

The defendants’ counsel raises issue with leave having been sought only from the 10^th January 1994 whereas the plaintiff was required to resume duties on the 7^th of January and that leave should have been sought from an including the 7^th of January 1994. This would appear to be correct however the relevance or impact of this will be addressed later.

By memo dated 19^th January 1994 the Acting Director of Fisheries granted approval in writing for the plaintiff to take 10 days leave and states in that approval that the plaintiff has to resume duties on the 21^st of January 1994. No issue is taken in that memo as to the commencement date of the leave and I think that is the first instance in which it becomes apparent that the issue raised by counsel for defendant is really irrelevant to the substantive matter in these proceedings.

The most relevant issue from the plaintiff’s evidence would then appear to be contained in an Exhibit P-8 being copies of the plaintiff’s bank statements. Those statements together with the plaintiff’s unchallenged evidence show that his salary was deposited to his bank account and was then reversed, that is, his salary ceased on or about 15^th January 1994.

The plaintiff says in cross examination that he did not return to work thereafter as he had been terminated as his salary had been stopped.

Evidence was then given on behalf of the plaintiff by the director of the employer of the plaintiff.

Mr. Peniasi Kunatuba was absent at the time the issues concerning the plaintiff arose. He returned to the Civil Service in February of 1994 and he then became aware of the issues. He gives evidence that he carried out an investigation of the issues surrounding the termination of the plaintiff’s employment and he says in his evidence that the result of that investigation was that there were no grounds upon which the plaintiff should have been terminated. Again, the evidence of this witness is unchallenged.

Mr. K.P. Singh then gives evidence on behalf of the plaintiff. Mr. Singh is the Deputy Permanent Secretary of the Ministry of Agriculture, Sugar and Land Resettlement and he was the acting senior officer of the Department at the relevant time.

Mr. Singh gives evidence that he carried out an investigation with respect to the matter and the issues surrounding the termination of the plaintiff’s employment and he says in his evidence that in his view the dismissal was not fair. When asked in cross examination as to why it was not fair, he then detailed his reasons but perhaps most relevantly he details the matters that are contained in the evidence to which I have already referred, that is, the 10 days additional leave was approved requiring the plaintiff to return to work on the 21^st of January 1994 and that his salary was stopped. Salary payments were reversed at a date prior to the 21^st January 1994, that is, at or about or effectively at or about the 15^th of January 1994.

His says in answer to questions asked in cross-examination that yes he is aware of the Public Service Commission (Constitution) Regulations. He is aware he says of the requirement that if an employee is absent for 7 consecutive days without an excuse then he is deemed to have resigned but he says that is not what occurred in this instance and he says that based upon the approved leave and the cessation of salary payments prior to the expiration of the approved leave.

All of the evidence put before the court by and on behalf of the plaintiff is unchallenged by the defendants.

The defendants do not or have not called any evidence and have produced to the court Exhibit D-1, being a salary advice slip with respect to the plaintiff. There is no other evidence produced to the court.

On the evidence that is before the court, I am satisfied on the balance of probability that the plaintiff’s employment was effectively terminated by the cessation of his salary and the reversal of salary payments to his bank account prior to the expiration of approved annual leave in January 1994 and accordingly I find that the termination of the plaintiff’s employment on the evidence before me is unjustified and accordingly unlawful and it must therefore follow that the conduct of the defendants in terminating the plaintiff in the manner described was in itself unlawful and I therefore find for the plaintiff on the issue of liability.

Orders of the Court will be: -

1. Verdict for the plaintiff;

2. The defendant to pay the plaintiff’s costs;
   
3. Leave is granted to restore the matter to the list if necessary for the assessment of damages.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
26 APRIL 2004