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Tuma v Commissioner of Police [1996] PGNC 87; N1436 (3 May 1996)

N1436

PAPUA NEW GUINEA
[In the National Court of Justice]

OS 356 of 1995

JACOB TUMA
(Applicant)

V

THE COMMISSIONER OF POLICE
(Respondent)

Mt Hagen: AKURAM, AJ
1996: 29th April & 3rd May

Administrative Law - Judicial Review - purported dismissal with no formal notice of dismissal.

Held:

1. Dismissal with terminational pay advise in lieu of notice does not postpone the termination date; the dismissal is effective on the date when the member is told his services are no longer required.

2. Failure to give notice contrary to section 46 (5) of Police Force Act Chapter 65 is a breach of law and is void and of no effect.

3. The following are proper and effective service of notice(s) of dismissal:-

(a) For notice to be effective, notice of dismissal must be specific, unequivocal and clearly communicated to the member.

(b) The notice is to take effect on the day it is received and the party giving notice has the duty to give it on time.

(c) A Statement that a member’s employment or services will cease on a certain date is effective notice.

4. The following are not proper or effective service of notice of dismissal:-

(a) Where notice is not received until the day on which it is to take effect is termination without notice.

(b) Termination without the required notice, but with some notice, will still be wrongful.

Cases cited in the judgement:
Sudi Yaku -v- Commissioner Of Police (1980) PNGLR 27.
R. -v- Gaming Board Of Great Britain [1970] EWCA Civ 7; (1970) 2 Q.B. 417.
Okuk -v- Fallscheer (1990) PNGLR 274.
Malloch -v- Aberdeen Corporation (1971) 2AllER 1278

Statutes Cited:
Police Force Act, Ch. 65, S.46.

Texts Cited:
The Wrongful Dismissal Handbook By Ellen E. Mole; 1990 Edn.

MR. O’CONOR for the Applicant.
MR. YAMBOLI for the Respondent.

3rd May 1996

AKURAM, AJ: This is an application for Judicial Review of a decision of the Police Commissioner dismissing the Applicant upon a recommendation by the District Court Mendi after convicting and sentencing the applicant to 8 months. Upon appeal, the said sentence was quashed and replaced with a 12 months GBB by National Court. There being no recommendations made under section 57 (2) (a) of the Police Force Act, Chapter 65.

The brief facts are that the Applicant was charged by police on the 13th May 1994 for stealing Court Bail money in the sum of K530 which came into his possession by virtue of his employment as a policemen. He was convicted by the District Court Mendi and sentenced to 8 months and recommended for dismissal pursuant to s.57 (2) (a) of Police Force Act, Ch. 65 on 24th June 1994. He filed his Notice of Appeal on the same date of 24th June 1994 and released on bail on the 15th July 1994. On the 18th July 1994, three days after released on bail, he was served with a disciplinary charge which read:

At Mendi between Thursday 14th October 1993 and the 15th November 1993, you were guilty of improper conduct in your official capacity in that you did steal Police bail monies sum of Five hundred and thirty kine (K530) which had came into your possession by virtue of your employment (Police Dept.) and as Shift Supervisor". Contrary to Section 43 (g) of the Police Force Act, Chapter 65.

He was served the above charge on the 15th August 1994 at 9.20 pm on Monday. He admitted the charge and said he will provide his explanations in writing. His explanation is that he got the money to pay for school fees for his four children, two in Grades 8 and 10 and two in Community School. As he was charged after his successful appeal on 24th July 1994, he also pleaded to the Police Commissioner that the sentence was too excessive as a first offender and that Court did not consider his good character in the force. In fact this was his first offence.

Furthermore, he explained that he in fact repaid the full K530.00 but was told by Provincial Police Commander that he will be criminally charged which resulted in his conviction, sentence and subsequent appeal. The National Court did not consider and make a recommendation under Section 57 (2) (a) of the Police Force Act, after upholding the appeal.

His Counsel in support of his application submitted that the Commissioner did not take into account the fact that the National Court did not make any recommendation for dismissal. He also submitted that there are no reasons given in coming to that decision.

There was no notice of dismissal to the Applicant, even at the time of hearing this application which is confirmed by the Counsel for the Respondent.

The Applicant’s Counsel had written to the Commissioner requesting for copy of the Notices of dismissal on the 9th, 15th and 22nd of June 1995 but this was of no avail in obtaining the same. I quote the above three letters.

9th June 1995

The Commissioner for Police

Police Headquarters

PO Box 85

KONEDOBU

Dear Sir

RE: SGT. 5356 JACOB TUMA of Mendi Police Station

I enclose herewith a copy of your letter of the 22nd May 1995 address to Sgt. Tuma for your easy reference.

I am instructed to act on behalf of the above named who instructs me he believes that he is dismissed from the Police Force subsequent to proceedings in the District Court and the National Court and a charge brought against him by the Commissioner.

I note that although Sgt. Tuma received a copy of special payment advice dated 12th of May 1995 endorsed with a note ‘dismissed from the Police Force with effect from the 12th of April 1995" he has receive no formal notice of dismissal to date.

However, I assume that there must be some formal dismissal after your letter of 22nd of May 1995.

If Sgt. Tuma is formally dismissed, would you please forward me a copy of the dismissal notice to be included with the documentation for consideration by the Court by way of Judicial Review. I would be most grateful if you would fax the notice to my above fax number at your earliest convenience.

Yours faithfully,

D L O’CONNOR

15th June 1995

RE: SGT. 5356 JACOB TUMA OF MENDI POLICE STATION

Please find herewith a copy of the letter regarding this matter dated the 9th of June 1995. Would you please fax me a copy of the dismissal notice at your earliest convenience.

Yours faithfully,

D L O’CONNOR

22nd June 1995

RE: SERGEANT 5356 - JACOB TUMA OF THE MENDI POLICE STATION

I enclose herewith copies of my letters of the 9th of June 1995 and 15th of June 1995 each of which was faxed to your office and the original posted by ordinary mail.

I note that I have had no reply to the letters requesting copies of the dismissal notice and I conclude that in fact Mr Tuma is not dismissed despite the notation on his salary file indicating that he is dismissed from the Police Force and your letter to him dated the 22nd of May 1995.

In the circumstances I would ask for advice confirming that he is formally reinstated to the Police Force. Would you please forward this to me by facsimile message to my above number.

Yours faithfully,

D L O’CONNOR

The Counsel therefore submitted that the Applicant be re-instated as he never received any notice of dismissal and that he be re-instated for the following reasons:

(a) That the Commissioner should provide the reasons but has not.

(b) That there was no notice of dismissal served onto Applicant.

(c) That Section 59 of the Constitution should be complied with but was not.

Mr. Yamboli basically conceded to the application as he also attempted several times to obtain the notice and or the reasons and was not given the same so has no instructions to respond to the application. However, to assist the Court, he referred me to one of my own decisions in Moses Kalandi and Suprun Simino, OS. 58 of 1994 (Unreported) dated 12th October 1994.

The grounds of this application for judicial review, which were the same grounds for leave under O.16 R. 3 (2) of NCR, are that:

1. The penalty was excessive;
2. The Commissioner failed to consider the decision of the National Court in Appeal No. 143 of 1994;
3. The decision of the Commissioner was Contrary to National Justice in that the Commissioner:-
   

(a) Failed to ask Plaintiff address to Commissioner on penalty;

(b) Failed to provide the Applicant with reasons for his decision;

(c) Failed to formally advise the Applicant of dismissal;

I will deal with second, third and first ground in that order.

On his second ground of appeal that the Commissioner failed to consider the decision of the National Court in appeal number 143 of 1994, I am of the view that the Commissioner is not bound by that decision. I say this because under Section 57 (3) of Police Force Act Ch. 65, the Commissioner has a discretion to effect the recommendation under Section 57 (2) but in this case, he seemed to have followed the procedure set out under Section 46 of the Act. This view is supported by the decision in Sudi Yaku v Commissioner of Police (1980) PNGLR 27 which held that a Criminal conviction does not in the absence of any statutory provision ban subsequent disciplinary action.

As to the third ground of the application that the Commissioner’s decision was contrary to natural justice, Section 59 of the Constitution states the basis of the principles of natural justice in that justice must not only be done but that it must be seen to be done. There are no general rules that can be laid down but that each case must be determined on its own facts as said in R. v. Gaming Board of Great Britain (1970) 2QB417 and approved by the Supreme Court in Okuk v Fallscheer (1990) PNGLR 274 where court said that:

"I think it is important to consider that no general rule can be laid down as to the Application of the principles of national justice. Each case must be determined on its own facts".

In the present case, and in all police disciplinary cases, the procedure is laid down in Section 46 (3), (4) and (5) of the Police Force Act, Ch. 65. These are as follows:

46. Dealing with serious offences.

(3) On a charge being laid against a member of the Regular Constabulary Branch, he shall¾

(a) be promptly furnished with a copy of the charge, which shall, if he so desires, be explained to him by the officer-in-charge; and

(b) be invited¾

(i) to reply promptly, stating whether he admits or denies the truth of the charge; and

(ii) to give any explanation that he desires to give in regard to it,

and if a reply is not given by the member within 14 days after his receipt of the charge he may be deemed to have denied the truth of the charge.

(4) if, after considering reports relating to the offence and charge, the reply and explanation (if any) of the member charged and any further report that he thinks necessary, the Commissioner is of opinion that the charge has been sustained, he may¾

(a) fine the member a sum not exceeding K40.00; or

(b) reduce the member’s salary; or

(c) reduce the member to a rank having a lower classification, and to a salary within that classification; or

(d) in addition to or instead of imposing a punishment specified in Paragraph (c), transfer the member to other duties or to some other locality; or

(e) in the case of a commissioned officer¾impose a penalty referred to in subsection 45 (1) (a) (b) or (e); or

(f) in the case of member other than a commissioned officer¾impose a penalty referred to in Section 45 (1) (a), (b), (d) or (e); or

(g) in the case of a member who is a commissioned officer¾recommend to the Minister that the member be dismissed from the Force; or

(h) in the case of a member other than a commissioned officer¾dismiss the member from the Force.

(5) The Commissioner shall notify a member of a punishment imposed on him or a recommendation made concerning him under subsection (4)".

The Commissioner in this case has properly complied with Section 46 (3) by laying the charge and furnishing the applicant with a copy of the charge and invited him to either admit or deny it and to give any explanation. The applicant admitted and gave his explanations. However, the question is whether the Commissioner obtained any reports and replies and explanations relating to the charge before imposing the penalty as required under Section 46 (3) which is mandatory. These procedural requirements are there for a purpose. That purpose is to give the member charged an opportunity to be heard in his own defence. As Lord Deming said in Malloch v Aberdeen Corporation (1971) 2 All ER 1278 that:

"The right of a men to be heard in his defence is the most elementary protection of all and where a Statutory form of protection would be less effective if it did not carry with it a right to be heard. I would not find it difficult to imply this right".

It is also said in that case (supra) that:

"The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case".

This principle is what Section 59 of the Constitution is also advocating. In the present case, there is in fact no reasons nor evidence in the form of reports, explanations and any further reports or replies upon which the Commissioner based his purported decision, (See Section 46 (3) & (4) Police Force Act, Ch. 65). There is also no notice of dismissal served on the Applicant and the date the dismissal is to be effective so that all police items or issue to the member are recovered and Part 12 of his duplicate record of Service is duly endorsed on his final separation from the Force. This is mandatory under Section 46 (5) of the Act which say that: "The Commissioner shall notify a member of a punishment imposed on him or a recommendation made concerning him under subsection (4)".

In accordance with Section 46 (5) I am of the view that for the notice to be effective, notice of dismissal must be specific, unequivocal and clearly communicated to the member. Normally, a statement that a member’s employment will cease as of a certain date is an effective notice. A statement that the notification is notice of termination under the Police Force Act Ch. 65 will reinforce the effectiveness of the notice.

Where notice is not received until the day on which it is to take effect, the termination is without notice; the party giving notice has the duty to deliver it on time. Termination without the required notice, but with some notice, will still be wrongful.

Dismissal with termination pay in lieu of notice does not postpone the termination date; the dismissal is effective on the date when the member is told his or her services are no longer required. (See The Wrongful Dismissal Handbook by ELLEN E. MOLE 1990 which I adopt as proper and effective notice of dismissals).

Therefore the failure by the Commissioner to notify the Applicant accordingly of his dismissal is a clear breach of the law. The Special payment advice in "FF82M" is not such a notice and cannot replace such a notice as it is not the type of notice required under the Act.

The special payment advice only comes after the member has been officially notified of his dismissal. As it stands, the member is not advised as required by law. Therefore the special payment Advise has no legal basis to replace the termination notice and is void and of no effect in law.

I would therefore grant the application for judicial review on the second and third grounds and do not wish to discuss the first ground on excessiveness of the penalty.

I therefore make the following orders:

1. The decision of the Police Commissioner to dismiss the Applicant from his employment with the Royal Papua New Guinea Constabulary is hereby quashed.
   
2. That the Applicant be re-instated to his original rank with all its entitlements, as at the rate of his purported dismissal.
   

Lawyer for the Applicant: MR. O’CONNOR
Lawyer for the Respondent: MR. YAMBOLI