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State v Public Service Commission [2011] FJHC 769; HBJ24.2006 (10 November 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Judicial Review No: HBJ 24 of 2006

STATE

v

PUBLIC SERVICE COMMISSION

Ex-parte: JONE QOVU MATAU

BETWEEN:

JONE QOVU MATAU
Applicant

AND:

PUBLIC SERVICE COMMISSION
1st Respondent

AND:

PUBLIC SERVICE APPEALS BOARD
2^nd Respondent

AND:

THE MINISTRY OF LABOUR, INDUSTRIAL RELATIONS AND PRODCUTIVITY
3rd Respondent

Counsel: Mr. V. Maharaj for the Applicant.
Ms. S. Serulagilagi for the 1st & 3rd Respondent.

Date of Judgment: 10 November, 2011

JUDGMENT

[1] The notice of motion for leave to apply for judicial review and stay of decisions were filed on 5.7.2006, by John Qovu Matau (the applicant). In that motion the applicant sought following relief.

1. For an order for certiorari to remove the said decision of the Public Service Appeals Board (the 2nd respondent) dated 6.04.2006 disallowing the appeal of the Applicant as the Senior Labour Officer by the Ministry of Industrial Relations to this Court be quashed;
   
2. For determination and declaration that the decision of the second respondent dated the 6th of the April 2006 disallowing the appeal by the applicant were:
   
   1. In breach of principles of natural justice;
      
   2. Irrational, unreasonable, harsh and unfair; and,
      
   3. Ultra vires, null and void.
      

100. Further declaration or other relief as to this court may deem fit to order.
     

4. Costs.
   

[2] On 15.08.2006, court granted leave to apply for judicial review which operated as a stay of the proceedings under Order 53(3) (8) (a) of the High Court Rules until the final determination of the application.

[3] In support of the motion, an affidavit was filed by the applicant. According to the affidavit, the applicant was charged with 4 disciplinary offences on 29.08.2003. The memorandum, which contained the charges marked as 'A' is annexed to the affidavit. The Public Service Commission suspended the applicant on 50% salary until 06.12.2004, and from 06.12.2004 he was suspended without pay.

[4] Subsequently, the PSC found the applicant guilty of charges 1, 2, and 4 and terminated the applicant's employment. An appeal was made to the Public Service Appeals Board and on 06.04.2006, the appeal was also disallowed.

[5] The applicant states that his termination of employment was erroneous, unfair, unreasonable and arbitrary due to the following reasons:

1. The Public Service Commission failed to call one Anareta Navere, the co-trustee and signatory of the trust account, as a witness;
   
2. The co-trustee and the signatory complained that she had not signed the withdrawal slip on seven occasions but the Public service Commission failed to call the co signatory to verify her signature or complaint on oath;
   
3. The signature of the said Anareta Navere was consistent with her previous signatures and there was a likelihood that the co-signatory kept the money with her and the fact that the co-signatory was not called to give evidence prejudiced the applicant's case and was unfair to me in that the applicant was unable to cross examine her;
   
4. In the event the co-signatory was summoned to give evidence, there is a likelihood that the said Anareta Navere would have admitted her signature;
   
5. The Public Service Commission found the applicant guilty of charge 1, Charge 2 and Charge 4 when in fact the matter was still under investigation by the Fiji Police Force;
   
6. The public Service Commission found the applicant guilty of charge 1, charge 2 and charge 4 when in fact it failed to establish that the applicant misused or utilized the fund for his benefit, which was an important issue and/ or element to be established;
   
7. That while the Public Service Appeals Board did not call the complainant and the co-signatory as a witness, the Appeals Board also failed to summon the Appellant being the Applicant herein as witness in order to admit and receive evidence;
   
8. That while the Public Service Appeals Board found the applicant guilty of charge 1, 2, and 4, the Appeals Board failed to call evidence to establish that the applicant benefited from the alleged misuse of funds;
   
9. The police have failed to lay any charges against the applicant even though it took over years to investigate the allegation of misuse of trust funds;
   

[6] In response to the applicant's affidavit, an affidavit was filed by the secretary to the Public Service Appeal Board. According to him the commission found the applicant guilty of all 4 charges. It is further deposed that the Board did not breach the constitutional rights of the applicant, focused on written and oral submissions made by both parties; all factors forwarded by parties were given full and detailed consideration and therefore the Board's decision was procedurally correct, fair, rational and reasonable.

[7] The Ministry of Labour And Industrial Relations (hereinafter referred to as the 3rd respondent) also filed an affidavit opposing the applicant's claim. According to the affidavit, it was Mr. Anare Gonewai who alerted the 3rd respondent in his letter dated 27.08.2003 of allegation of discrepancies in the Trust account of Elenoa Varo. Thereafter, the Ministry of Finance requested a written response from the applicant on 10.02.2004, which was denied by the applicant on 25.05.2004. The 3rd respondent laid 4 disciplinary charges against the applicant on 26.10.2004, which was again denied by the applicant. Acting Chief Executive Officer for the 3rd respondent suspended the applicant on 50% salary from 26.10.2004.

[8] On 3.12.2004, the 3rd respondent was informed by the commission that the applicant should be suspended without pay in accordance with section 23 (3) of the Public Service Act (general Regulations) 1999 with effect from 06.12.2004 and the commission's directive was informed to the applicant on 14.12.2004. The commission set a date for inquiry and directed the 3rd respondent to disclose all the relevant documents to the applicant. By letter dated 11.03.2005, the 3rd respondent disclosed all the documents to the applicant.

[9] Subsequently, the commission heard the disciplinary charges on 5.4.2005. At the inquiry, the CEO of the 3rd respondent presented documentary evidence and called two witnesses namely Elenoa Varo and Anare Gonewai, who were cross examined by the applicant through his representative Mr Taniela Tabu. It is also stated that the applicant was at liberty to call witnesses but he did not do so.

[10] Furthermore, it is deposed that the applicant did not raise his complaint about Anareta Navere in his grounds of appeal and written submissions to the second respondent, nor did he do so at the oral hearing before the second respondent on 04.04.2006, after ample evidence was adduced at the hearing, which included statements from Anareta Navere, Elenoa Varo and police constable Anare Gonewai the younger brother of Anareta Navere.

[11] It is further deposed that the onus was on the applicant to call Navere if his contention was that Navere agreed with him on the Trust account withdrawals in question.

[12] It could be noted that Anareta Navere was not called to give evidence. Only her statement to the police was referred to at the hearing.

[13] According to the memorandum dated 26.10.2004 the charges against the applicant were based on following allegations;

1. That the applicant forged the signature of one Anareta Navere who with the applicant was the second trustee in managing the trust account on behalf of Elenoa Varo at Colonial National Bank Navero.
   
2. That the applicant made certain withdrawals, which the second trustee Anareta Navere claims she had not signed, on 7 separate occasions;
   

100. That the applicant did withdraw such moneys and used all or part of the same for his own benefit;
     

4. That through his action the applicant has improperly managed the said trust fund accounts.
   

[14] According to the 1st respondent's affidavit only two witnesses namely, Elenoa and Anare Gonewai were testified at the inquiry held by the Public Service Commission.

[15] Surprisingly, the Commission did not call the most vital witness, that is Anareta Navere, whose signature was alleged to have been forged by the applicant, but still the Commission found the applicant guilty of charges 1, 2 and 4.

[16] Although no proceedings were available, it can be discern form the affidavits that no other witnesses were called except Elenoa and Anare Gonewai. Without Anareta Navere's testimony, there was no way to test and evaluate the credibility of the statement by her to the police. The main allegations against the applicant were based on the fact that he forged the signature of Anareta Navere. Therefore, without the testimony of Anareta, the Commission should not have concluded that the applicant had forged the signature of Anareta Navere. This procedural error clearly goes to the root of the findings of the Commission.

[17] The failure by Anareta to testify, in my view, would amount to a grave procedural error and further it denied the Commission an opportunity to take most relevant considerations into its account, which warrants a judicial review of the Commission's decision. Further, the Commission's reliance on the statement made by Anareta to the police demonstrates that the Commission did take some irrelevant consideration into its account in Wednesbury sense.

[18] The respondents argued that the applicant was at liberty to call witnesses at the hearing but he did not do so. It must be noted that it is the duty of the Commission to call the particular witness and prove the charge against the applicant. The main allegation against the applicant which led to his termination from his employment, as it appears to this court, was the forgery of the signature of Anareta Navere.

[19] However, it was the applicant's contention that he did not forge the signature of the Anareta. Therefore, it was incumbent on the 1st respondent to call said Anareta Navere and testify her in order to prove the charge of forgery against the applicant.

[20] The Commission as well as the Appeal Board were given specimen signatures to compare. But no expert opinion was obtained either by the Commission or by the Appeal Board to conclude that the alleged signatures were not that of Anareta but of the applicant. Hence, in the absence of reliable evidence, the Commission found that the applicant guilty of forgery of the signature of Anareta and terminated the applicant from his employment.

[21] As can be seen from the affidavits, the Commission solely acted on the statement made to the police by Anareta, which in my view, was not the most appropriate way to prove the charges against the applicant. The commission should have called Anareta to enable her to examine the alleged signatures appeared on cheques so that she could have been cross examined by the applicant. The applicant was not required to call Anareta and prove the negative unless the charges against him were proved by the Commission.

[22] Therefore, it is my considered view that the procedure adopted by the Commission is contrary to accepted legal principles and hence, it is unsafe to find the applicant guilty solely relying on the statement made by the Anareta to the police.

[23] When the allegation of forgery was levelled against the applicant, the burden of proving the charge was always on the respondents. It never shifted to the applicant. Until the charge is proved against the applicant, he is not required to give evidence or call any witnesses.

[24] When the submissions of the respondents are considered, it appears to this court that the respondent had acted as if the applicant were required to prove the negative even before the respondents established the charges to the extent of requiring the applicant to answer this, in my view, is a misdirection of the law on the part of the respondents.

[25] Since the witness Anareta was not called to give evidence the respondent should not have taken into consideration the statement made by Anareta to the police, because there was no way to ascertain the truth of the statement unless and until the witness was cross examined.

[26] Therefore, the PSC's decision to rely on the statement of Anareta without her testimony at the hearing, in my view, is a clear example for procedural impropriety which included failure to observe basic rules of natural justice and failure to act with procedural fairness.

[27] Furthermore, the respondents submitted that the applicant had failed to call any expert witness to show that the signature in question was not put by him but by either Anareta or Elenoa which again shows the improper procedure adopted by the respondents when the applicant was found guilty.

[28] It is true that the applicant has not specifically focused on a particular ground upon which he relies, but when it is apparent that grave injustice and prejudice has been caused to the applicant due to the improper procedure adopted by the respondents in the inquiry against the applicant, court should not lose sight of that issue.

[29] The applicant in his affidavit in reply mainly highlighted the 1st and 2nd defendant's failure to call a witness named Anareta Navere in the inquiry held against the applicant.

[30] In Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, it was held;

In considering whether an authority having so unlimited a power has acted unreasonably, the court is only entitled to investigate the action of the authority with a view to seeing if it has taken into account any matters that ought not to be or disregarded matters that ought to be taken into account. The court cannot interfere as an appellate authority to override a decision of such an authority, but only as a judicial authority concerned to see whether it has contravened the law by acting in excess of its power.

[31] In that case Lord Greene M.R. further summarised the principle applicable as follows;

"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."

[32] The 1st and 3rdrespondents submitted that the civil service disciplinary charges are laid under section 6 and 7 of the Public Service Act for alleged breaches of the public service code of conduct and do not have to be identical to criminal charges and are not subjected to the same level or rigours of the rules of evidence in a court of law.

[33] However, it must be noted that the administrative bodies are given powers to act in the expectation that it would fairly and squarely exercise its quasi judicial power. Therefore, it is the duty of the particular body to make sure that it follows the proper and fair procedure in exercising its power.

[34] The respondents submitted that the applicant was accorded the fairness required by the rules of natural justice in that he was given every opportunity to reply to the charges laid, access to the all the documentation adduced at his hearing and to prepare a defence, which he carried out with the assistance of his chosen union representative at the Commission hearing and with the assistance of his chosen legal representative before the second respondent board whose decision is impugned here.

[35] However, the issue of paramount importance here is not the opportunity given to the applicant but the quality and the quantity of the evidence considered and the principles applied by the Commission while concluding that the applicant had forged Anareta's signature.

[36] As I stated earlier, the applicant was not required to call Anareta to prove that the alleged signatures were not of the applicant. The onus is on the Commission to prove that those signatures were forged by the applicant. Therefore, it is incorrect to submit that the applicant should have summoned Anareta to prove that the alleged signature was put by her. It is the Commission that should have summoned Anareta and prove charges against the applicant.

[37] In this matter, neither the Public Service Commission nor the Public Service Appeals Board made any attempt to call Anareta to testify at the hearing against the applicant.

[38] It must be further emphasised that in an application of this nature, the court is mainly concerned with the procedure in which the decision was reached rather than the merits of the decision. Therefore, the court has to decide whether the tribunal has been influenced by considerations that cannot lawfully be taken into account, or had failed to take into account the relevant considerations, and also whether the tribunal has erred in law.

[39] The following dictum of Lord Hoffman in Tesco Stores v. Secretary of State for the Environment [1995] UKHL 22; [1995] 1 W.L.R 759 at 780 is of much importance to this case.

"The question of whether something is a relevant consideration is one of law, but the weight to be given to any relevant consideration is a matter for the decision maker, with which the court will only interfere on the grounds of Wednesbury irrationality."

[40] Halsbury Laws of England at paragraph 86 under the heading 'manifest unreasonableness' states,

'A decision of a tribunal or other body exercising a statutory discretion will be quashed for 'irrationality' or as often said for Wednesbury unreasonableness; as grounds of review, bad faith and improper purpose, consideration of irrelevant considerations and manifest reasonableness run into another. However, it is well established as a distinct ground of review that a decision which is so perverse that no reasonable body, properly directing itself as to the law to be applied, could have reached such a decision will be quashed.'

[41] The purpose of the remedy of judicial review was concisely stated by Lord Hailsham in Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 W.L.R 1155 at p. 1160, as follows:

"But it is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question."

[42] In the present case the respondents have failed to furnish the minutes of the disciplinary hearing. The applicant submitted that the Commission has not given him a copy of the proceedings of the hearing.

[43] The following passage is pertinent and should not be lost sight of from the judgment of Lord Lane C.J.in Regina v. Immigration Appeal tribunal, ex parte Khan (Mohmud) [1983] 2 W.L.R. 759 at 762 -3 which is apt:

'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 reach 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'

[44] However, when the affidavits of the respondents, in particular the affidavit of the 1st respondent is perused, it appears that the Commission had focused its whole attention to the statement made to the police by Anareta and had given undue weight and consideration to that unsworn statement pertaining to the forgery of the Anareta's signature by the applicant. The Commission should not have considered the unsworn statement of Anareta while reaching its findings. The Commission never considered seriously the fact that Anareta did not testify before them and thereby the applicant was denied an opportunity to cross examine her.

[45] In all the circumstances of this case, on the evidence before the Appeal Board, it should not and could not have concluded that there was justification for dismissal as it is apparent that the employer had not discharged the burden of satisfying on the balance of probabilities that it discharged its obligation of procedural fairness in relation to the dismissal. Hence the dismissal was procedurally unfair.

[46] To conclude, for the abovementioned reasons given, the applicant succeeds in his application for judicial review. The appeal Board could not have concluded that there was justification for dismissal as it is clear that the employer had not discharged the burden of satisfying on the balance of probabilities that it discharged its obligation of procedural fairness in relation to the dismissal. Hence the dismissal is procedurally unfair.

[47] However, in considering the age of the applicant and also the length of period in which he was kept out of the job, it is my view that the question of the reinstatement is impracticable. Considering the applicant's long service, in the exercise of my discretion, I would award him 9 month salary as compensation and I order accordingly.

Pradeep Hettiarachchi
JUDGE

At Suva
10 November, 2011