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Kevi v Teaching Service Commission Disciplinary Committee [1997] PGNC 49; N1555 (24 April 1997)

Unreported National Court Decisions

N1555

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

O.S. NO. 175 OF 1996
BETWEEN
GRAHAM KEVI - PLAINTIFF
AND
THE TEACHING SERVICE COMMISSION DISCIPLINARY COMMITTEE - DEFENDANT

Mount Hagen

Lenalia AJ
11 April 1997
24 April 1997

ADMINISTRATIVE LAW - Judicial review - Judicial review of administrative action - Certiorari - Decision of Disciplinary Committee - dismissal of member of Teaching Service - Disciplinary action - Part VII of the Teaching Service Act (Ch. No. 71) and PART II of the Teaching Service Regulations.

JUDICIAL REVIEW - Administrative decision - Dismissal - No opportunity to be heard - Administrative remedies exhausted - Disciplinary considerations - Disciplinary Committee - Duty to act fairly includes duty to give reasons.

JUDICIAL REVIEW - Natural justice - Disciplinary proceedings resulting in finding of guilt - Proceeding in absence of member concerned - Whether Disciplinary Committees constituted under PART VII - Division should proceed in absence of member charged.

Held

(1) As a matter of statutory construction of the Teaching Service and Teaching Service Regulations (Ch. No. 71), the Disciplinary Committee constituted as an appellate Board is required by law to give reasons for dismissal and an opportunity to be heard before the member was dismissed. Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66 and Yambaki Okuk and Another v Fallscheder [1980] PNGLR 274 applied.

(2) Where the Teaching Service Commission Disciplinary Committee acts on recommendation by the National Education Board Disciplinary Committee resulting in a finding of guilt, the Disciplinary Committee must give reasons at the time the member is informed of the decision.

(3) Although there may not be any specific requirement under the Teaching Service and Teaching Service Regulation for the Disciplinary Committees to give reasons, it is a requirement of the principle of natural justice to give reasons.

(4) The Defendant erred in law by failing to give reasons for finding the plaintiff guilty of a serious disciplinary charge.

(5) The Defendant erred in law when it adopted the decision to dismiss the plaintiff when the charge was not supported by any evidence.

Cases Cited

Rose Kekedo v Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122

Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66

Mallock v Aberdeen Corporation [1971] 2 All ER 1278

Fallscheer v Iambaki Okuk and Another [1980] PNGLR 101

Yambaki Okuk and Another v Fallscheder [1980] PNGLR 274

Niggints v Tokam [1993] PNGLR 66

Breen v Amalgamated Engineering Union [1971] 2 QB 175

Materials Referred To

Faulkes on “Administrative Law” Fifth Ed.

Counsel

D O’Connor for the Plaintiff

24 April 1996

LENALIA AJ: The Plaintiff was granted leave to apply for judicial review on 28th of June, 1996. The matter has since been adjourned from time to time until it came up before me on 11th of April for hearing.

The Plaintiff applies for judicial review pursuant to Order 16 of the National Court Rules 1983 (Ch. No. 38) asking the Court to remove to it and quash a determination of the National Education Board Disciplinary Committee made on 18th of August 1995 which decision was subsequently confirmed by Defendant dismissing the plaintiff from his teaching career as a lecturer at the Mount Hagen Technical College in the Western Highlands Province. Disciplinary Committees are constituted under Part VII - Division 1 of the Teaching Service Act and Part II Divisions 1 and 2 of the Teaching Service Regulations (Ch. No. 71). The plaintiff was charged with a serious charge pursuant to S. 83 (1) of the Act and S. 19 of the Regulations on the 18th of August 1995 and the charge was served on the plaintiff on the 1st of September the following month. This was a serious disciplinary charge. The nature of the charge were that the plaintiff on 22nd day of June 1995 did turn up for work heavily intoxicated with alcoholic liquor and further was unable to teach and thereby neglected his duties. There was a further allegation contained in the charge that the plaintiff had committed similar behaviour on two (2) previous occasions for which the plaintiff was highly reprimanded in 1994.

On receipt of the notice of the charge the plaintiff immediately reacted by sending two written replies to the first Assistant Secretary Special Services, Technical Division - Education Department, in Moresby, (see Ann. “B” and “C” dated 2nd and 10th September 1995). In both replies the plaintiff pleaded his innocence and admitted that although he had consumed liquor the previous evening, he denied consuming liquor on the date stated in the charge. The Plaintiff also alleged that on the date stated in the charge, he was in the campus until 9.45 am when he left the campus. He was not engaged in teaching that day and seeing he had no classes on 22nd June, he applied for a leave of absence for that day. This is evidenced by an application for leave attached to his affidavit (see Ann. “D”).

By the 16 day of October 1995, the Plaintiff was served with a copy of the decision made by the National Education Board Disciplinary Committee on 5th of October the same month which committee acted on recommendations by the National Education Board recommending that the Plaintiff should be dismissed from the Teaching Service (see S. 85 (4) of the Act and S. 19 (4) of the Regulations).

Following service of the notice of dismissal, the plaintiff immediately appealed to the Chairman of the Teaching Service Commission Disciplinary Appeal Committee detailing his reasons for his innocency and an allegation that, the findings by the National Education Board Disciplinary Committee’s decision to suspend and dismiss him was ill-conceived and unsubstantiated by evidence. The plaintiff on both occasions had the right under S. 80 (10) of the Teaching Service Act to appeal to those respective committees to which he had appealed to.

The Defendant Board determined the plaintiff’s appeal on 21st of December 1995 pursuant to S. 80 (11) and decided to confirm the decision of the National Education Board Disciplinary Committee to dismiss the plaintiff from the Teaching Service. It is from that decision that the plaintiff has sought leave and the relief he seeks is that an order of certiorari be made against the Defendant to remove into this Court and quash the decisions of the Teaching Service Commission which confirmed the decision of the National Education Board to dismiss the plaintiff from the Teaching Service. The plaintiff’s assertions are supported by two detailed reports (see Ann. “H” and “I”). The first one by the Principal of the Mount Hagen Technical College dated 8th of August 1995. The second one an Inspector’s Report compiled and dated 28th and 29th August the same year were both very comprehensive and made in favour of the plaintiff’s attitude toward his work, his performances both in class and outside and his general behaviour toward other staff and his students.

The plaintiff relies on a number of grounds on this review. They are:

(i) There was no evidence to substantiate the charge laid against the Plaintiff;

(ii) The penalty applied was excessive;

(iii) The decision of the Teaching Service Disciplinary Committee was contrary to natural justice in that it failed to consider that the National Education Board Disciplinary committee failed to:

(a) provide any evidence substantiating the charge;

(b) Failed to provide the Plaintiff with an opportunity to cross-examine any witnesses providing evidence for the charge;

(c) Failed to provide the Plaintiff with an opportunity to address the National Education Board Disciplinary on penalty;

(d) Failed to provide any reasons for its decision.

It is the result of the above allegations that the plaintiff claims that the Defendant has failed to exercise its powers according to the requirement of the Teaching Service Act and the common law rules of natural justice and further claims that he was not afforded a hearing, let alone a fair hearing.

The Plaintiff has properly claimed the protection of law entitled to under SS. 37 (4) and 59 of the Constitution. This Court is vested with powers of review pursuant to S. 155 (4) and (5) and Order 16 of the National Court Rules of 1983 (Ch. No. 38). The purposes of judicial review were succinctly stated by the Supreme Court in Rose Kekedo v Burns Philip (PNG) Ltd and Others [1988-89] PNGLR 122. The Court said there that the purpose of judicial review is not to examine the subordinate authority’s decision with the view to substituting its own opinion. Judicial review is rather concern with the decision making process. It has also been established that, the Court’s powers of judicial review is only available to consider the validity of a decision of a tribunal and to interfere with that decision only if it can be shown that such a decision was made unlawful, or was unfair or made contrary to the principles of natural justice: Tandali v The State [1990] PNGLR 170. By these principles it is thought that where a tribunal or authority exceeds its powers or or where there is error on the face of the records or where there is breach of the rules of natural justice it is said that it amounts to substantial miscarriage of justice.

The first ground relied upon on this review is that there was insufficient evidence put before the National Education Board Disciplinary Committee against the plaintiff. On perusal of documents, the Defendant’s lawyers filed a Notice of Intention to Defend and despite several adjournments, and despite a notice of fax from the Solicitor General’s Office advising the plaintiff’s lawyers that a lawyer from the Solicitor General’s office would appear to cross examine witness on the morning of 11th of April, no defence lawyer turned up. There is evidence by the plaintiff that upon receipt of the notice of the charge, he provided both the National Education Board Disciplinary Committee and the Defendant with detailed denials of allegations contained in the charge. There was no corresponding evidence put by the Defendant Board to rebutt what the plaintiff said.

Proceeding before any committees constituted under the SS 74, 75 and 76 of the Teaching Service Act are all governed by S. 82 of the Teaching Service Act. This section says:

“82. Proceedings before Committees

(1) The Chairman of a Disciplinary Committee shall fix a date and place for the hearing of any matter, and shall notify the member of the Teaching Service concerned, personally or by post, of them.

(2) The Chairman of the Disciplinary Committee and the charging authority shall, where practicable, give to the member a copy of all documents intended to be used at the hearing at least seven days before the date fixed under Subsection (1).

(3) The member shall inform the Chairman of the Disciplinary Committee of the names and addresses of any witnesses whom he wishes to attend the hearing and shall, where practicable, make arrangements for their attendance.

(4) The member and the charging authority are entitled to appear, and to examine witnesses and address the Disciplinary Committee, personally or by a lawyer or agent.

(5) The Disciplinary Committee shall make a thorough investigation without regard to legal forms or solemnities or the rules of evidence, and may inform itself on any matter in such manner as it thinks proper.

(6) The Disciplinary Committee shall determine whether the hearing shall be in public or in private.

(7) Where the Teaching Service Commission Disciplinary Committee upholds an appeal, it may recommend that the amount of all or any specified part of the reasonable expenses incurred by a member of the Teaching Service in prosecuting the appeal be paid, and if approved by the Commission the amount may be paid to the member.”

Documentary evidence provided by the plaintiff show that non of the alternatives procedures defined in SS 82 nor in 83 were complied with. I find that in absence of evidence pointing me to the contrary, the claim by the plaintiff that there was no evidence to substantiate the charge must be sustained.

The allegation by the plaintiff that the Defendant adopted the recommendation of the National Education Board Disciplinary Committee was excessive must fail for the following reasons. Earlier on in this judgement, I said that the purpose of judicial review is not concerned with the decision but the decision making process and whether procedural fairness was ever afforded to the plaintiff. Procedural requirements under the Act in dealing with both less serious and serious disciplinary offences are laid out quite explicitly in the terms of SS. 78 and 80 of the Act. The law only requires this Court to look at the manner and procedures adopted and ask whether the Teaching Service Commission Disciplinary Committee complied with the law and the principles of the rules of natural justice. Therefore I am not required to decide whether the decision reached by the Disciplinary Committee was excessive or not: Rose Kekedo v Burns Philip (PNG) Ltd and Others.

The last assertion made by the plaintiff relates to a breach of natural justice in that the Defendant failed to consider failure by the National Education Board Disciplinary Committee to provide the plaintiff with an opportunity to cross-examine any witness who provided evidence in support of the charge and subsequently leading to the plaintiff not being given the right to present his case fairly before the Committee. One of the rules of natural justice is that a man has a right to be heard before a decision adversely affecting him is taken. In applying the concept of fairness it is said that there is always a duty to be fair, though what fairness requires will differ from case to case, the question being whether in the particular circumstances of the case the procedure taken by a tribunal was fair: (see David Foulkes on “Administrative Law” Fifth Edition page 226).

The Constitutional provisions of a fair hearing is enshrined in 59 of the Constitution and the common law principles of natural justice stated in the case of Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66. It is also the requirement of S. 82 of the Teaching Service Act that a member is entitled to be heard when he is tried. The procedures to be followed by a committee dealing with serious offences are fully detailed by section 82 of the Act. Section 82 envisages a hearing in the presence of an affected member. In the instant case the plaintiff, appealed against two consecutive decisions. It may not have been taken seriously by the various Disciplinary Committees. Lord Denning once said:

“The right of a man 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”: Mallock v Aberdeen Corporation [1971] 2 All ER 1278.

The Plaintiff’s case is concerned with well defined procedural rules under the Teaching Service Act. There is no doubt that the rules of natural justice have been applied in this jurisdiction. There is no doubt that such rules are enshrined in the Constitution (see SS. 37 (4) and 59). The protection of law provided for in S. 37 (4) could not have meant otherwise than the protection of the whole body of law defined in S. 9 of the Constitution. What is required under PART III Division 4 and 5 of the Teaching Service Act is that a member be given a fair hearing. If it was not specifically stated there, at least it is the requirement of the principles of natural justice.

The Plaintiff also claims that there was failure on the part of the Defendant in not providing him reasons for its decision. It is in general desirable that a tribunal or a Board should give reasons for their decisions. The reasons are obvious. The principle contains elements of fairness and if the Defendant was to be fair to the plaintiff, reasons should be given to the fullest practicable extent. A decision is likely to be better if the reasons for it are set out in writing because such reasons are more than likely to have been properly thought out. Secondly a “reasoned” decision is essential in order that where there is a right of appeal the applicant can assess whether he has good grounds to appeal and he can be able to prepare well to meet the case. It is my view that it is an obligation to state the reasons for a decision together with a right of appeal against the decision and it is more likely to concentrate the mind carefully on the decision. The giving of reasons would be an assurance that the decision made by the board of tribunal is free from arbitrariness. There may be instances where reasons might not be required for a decision. For instance in matters concerning national security in which national security might be jeopardised: R v Secretary of State for the Home Affairs Department ex-parte Hosenball [1977] 3 All ER. 452 see also David Faukes on Administrative Law Fifth Ed. Ch. 9.

The Teaching Service Act nor the Teaching Service Regulation specifically require the disciplinary committees to give reasons however it has been held in this jurisdiction that an officer cannot be dismissed (or even demoted) without first telling him what is alleged against him and hearing his defence and explanation and reasons being given for the decision Falsheer v Iammbaki Okuk and Another [1980] PNGLR 101. The principles there were subsequently approved by the Supreme Court in Okuk and Another v Falsheer [1980] PNGLR 274.

The duty to give reasons on the part of departmental heads was enunciated by Amet J (as he then was) in Nigints v Tokam [1993] PNGLR 66 and which principles are quite pertinent to the facts of the case before me. In that case, His Honour said at page 71-72:

“The statement of principle I now enunciate is that the departmental head who decides in his discretion, on proper consideration of the Public Services Commission’s recommendation, not to accept it should state the reasons for not so accepting the recommendation. It is not sufficient to dismiss the recommendation in the way the first respondent did:

‘Recommendations from the Public Services Commission are only recommendations. I do not accept the Public Services commission recommendations and therefore, you remain dismissed.’

If no reasons are stated other than this kind of statement, it leaves the court no option than to conclude that there were no good reasons at all. Public officials discharging public duties are required for public accountability to provide reasons for their actions and decisions. If their decisions affect substantial interests and welfare of other officers and their families good management and common sense principles of fairness require that reasons be given. Powers such as the power to dismiss and power to accept nor not accept recommendation are not absolute and unfettered. They are not intended to be exercised arbitrarily and without good reasons.”

It has been said that “The giving of reasons is one of the fundamentals of good administration: Per Lord Denning in Breen v Amalgamated Engineering Union [1971] 2 QB 175”.

For these reasons, I find that there has been a substantial miscarriage of justice which warrants interference with the decision made by the Defendant confirming the decision of the National Education Board Disciplinary Committee. I therefore order that the decision made by the Defendant be quashed. That the Applicant be reinstated to the Teaching Service with appropriate entitlements from the date of his dismissal. The Defendant shall meet the cost to be taxed if not agreed.

Lawyer for the Plaintiff: DL O’Connor Lawyers