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State v Public Service Commission, ex parte Nair [2007] FJHC 153; HBJ0017.2007 (19 July 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0017 OF 2007

IN THE MATTER of an application by DAMODARAN NAIR for
Judicial Review under Order 53 of the High Court Rules of Fiji 1988

And

IN THE MATTER of the decision of the Public Service Commission
dated 5th March 2007 relating to the suspension of the Applicant

Between:

THE STATE v. THE PUBLIC SERVICE COMMISSION
Respondent

Ex-parte:

DAMODARAN NAIR
Applicant

Counsel: Applicant in Person
Ms. A. Uluiviti for the Respondent

Date of Hearing: 16th & 18th of July 2007
Date of Decision: 18th July 2007
Date of Reasons: 19th July 2007

RULING UPON APPLICATION FOR STAY

[1] I refer to the reasons dated 19th July 2007 for my Ruling upon Mr. Nair's application for leave to apply for Judicial Review and incorporate that Ruling in this.

[2] In his inter partes summons Mr. Nair applies for,

"Stay of the above mentioned decision of the respondent (suspending him without pay) to maintain the status quo prevailing prior to 6th March 2007 until final determination of the within Judicial Review."

[3] This matter first came before me on 16th of July. There was no affidavit from the respondents, no notice of opposition, no documents putting forward any explanation why four and a half months after suspension without pay Mr. Nair had not been served with charges or any document to show that the PSC had extended the three months time limit, under Public Service Circular No. 18/2007.

[4] The case was adjourned for forty eight hours for the respondents to swear an affidavit addressing these issues and the case generally.

[5] On 18th of July the affidavit of Tom Lee was placed before the court. It is common ground that Mr. Nair has now received half his pay backdated to the date of suspension. Mr. Nair also accepts that the charges were served upon him soon after the hearing on the 16th of July. Some explanation was given as to why it had taken four and a half months to reach that point.

[6] In the affidavit of Tom Lee at paragraph 16 it is suggested the PSC gave its approval to the delay beyond the three months time line as shown at paragraph 4.2 of its minutes of the meeting on 7th of June 2007. The minute does not say that. Indeed, the Chairman raised his concern on the delay in serving the disciplinary charges "when the court had already instructed that the case be dealt with quickly".

[7] There is still no notice of opposition. There was no undertaking to use best endeavours to progress the disciplinary proceedings involving Mr. Nair. There was no apology that the charges were served a month and a half beyond the period when the whole process should have been completed according to the PSC Circulars 17/2005 and 18/2007, and after Singh J. stated on 30th March, "... I urge the Commission to move quickly to decide whether disciplinary charges will be laid ... The livelihood of an officer is at stake so urgency must be shown in this matter, failing which serious consideration ought to be given to restoration of either whole or part of the salary under Regulation 23(4) of the Public Service Regulations". (Underlining added)

[8] The affidavit did attach a report summarising the case concerning Mr. Nair and gave a broad timetable for progress.

[9] In these circumstances, I will grant part of the stay application and adjourn the remainder until a fixed date. These proceedings have been properly brought in Judicial Review, in my judgment, given that Mr. Nair had exhausted all the potential remedies available to him at this stage in the disciplinary procedure.

[10] Accordingly I order as follows:

1. The balance of the application is adjourned to 11th of September at 9.00 a.m.

2. The respondents are to file and serve the notice in opposition by 3.00 p.m. on the 23rd of July.

3. The respondents are to file and serve any further affidavits in opposition by 3.00 p.m. on the 8th of August.

4. Mr. Nair is to file and serve any affidavit in reply by 3.00 p.m. on the 22nd of August.

5. A temporary order is made reinstating Mr. Nair to full pay from Thursday 26th July, first payment to be on that date, until further order (for the sake of clarity this does not include back pay from the commencement of the suspension up to the present pay period).

6. On 11th of September the court will review progress in the disciplinary proceedings and in the light thereof consider:

(a) Granting orders in full as requested by Mr. Nair in his summons,

(b) Any other orders.

(R.J. Coventry)
JUDGE