Unreported National Court Decisions
N1569
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 218 OF 1996
BETWEEN
PAUL PORA - Applicant
And
THE COMMISSIONER OF POLICE - Respondent
Mount Hagen
Injia J
12 February 1997
9 May 1997
ADMINISTRATIVE LAW - Judicial Review of Disciplinary authority’s decision to dismiss policeman - Grounds of review - Excessiveness of punishment - Nature of Court’s discretion - Nature of Relief sought - Re-instatement and payment of lost salary entitlements - Nature of Court’s discretion to grant the additional relief in the form of lost salary entitlements consequent upon an order for re-instatement - National Court Rules, Order 16 r. 4 (1).
Cases Cited:
Dicky Nanan v Police Commissioner & Anor Unreported National Court Judgment N 1507 (1996)
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Counsel:
DL O’Connor for the Applicant
J Kumura for the Respondent
9 May 1997
INJIA J: The Applicant is seeking judicial review of his dismissal from the Police Force by the Respondent on disciplinary grounds pursuant to the provisions of the Police Force Act (Ch. No. 65).  Leave to seek judicial review was sought pursuant to Order 16 of the National Court Rules and granted by the Court.
There are two grounds of review as set out in the statement filed in support of the application for leave.  They are:
(i)       The penalty applied by the Commissioner was excessive.
(ii)      The decision of the Commissioner was contrary to natural justice in that the Commissioner:
(a)      Failed to provide the Plaintiff with copies of any evidence substantiating the charge.
(b)      Failed to provide the Applicant with an opportunity to cross-examine witnesses providing evidence in support of the charge.
(c)      Failed to provide the Applicant with an opportunity to address the Commissioner on penalty.
(d)      Failed to provide any reasons for his decision.
(e)      Failed to provide the Applicant with an independent authority to deal with the matter.
The following facts appear not to be in dispute.  The Applicant comes from Langa village just outside Mount Hagen town.  He is married with several children.  He joined the Police Force in 1986 and served in various locations throughout the country as a member of the Police Mobile Force.  In 1990, he was transferred to Mount Hagen from Porgera, Enga Province.  Apparently, the Police Department could not provide him accommodation in Mount Hagen so he had to stay in his village and come to work in Mount Hagen everyday by PMV transport.  In October 1994, he was posted for duty on Bougainville.  Upon his return from duty on Bougainville in April 1995, he never returned for duty until 28 August 1995.  Consequently, his absence from duty was treated by the Police Department as AWOL (absent without leave).  The Applicant gave his reasons for AWOL as being lack of married accommodation and inability of the Police Department to pick him up from his village in the police vehicle.  The Police Department did not accept his explanation.  On 28 August 1995, the Applicant was suspended from duty with 50% reduction in pay for 21 days.  This followed serious disciplinary charges being laid under S. 43 (a) of the Police Force Act.  The charge reads “On 22/5/95 - 28/8/95, you committed a breach of the Police Force Act (Ch. 65) in that you absented yourself from duty without authorised leave contrary to the provisions of Section 26 (1) of the Police Force Regulations (Ch. 65)”  thereby contravening S. 43 (a) of the Police Force Act (Ch. 65).  On 29 August, the Applicant replied to the charge in writing.  The pertinent parts of his explanation are reproduced below:
“Subject:       REASON FOR ABSENT ON DUTY
Sir,
1.       As the above refers I would like to explain the reason why I was absent from duty.
2.       Having transferred from Porgera and joining the Mobile in 1990 I have come to work on PMV paying a fare of K1.00 a day.
3.       Application for a Married house was forwarded twice but I was not given one.
4.       As para two (2) refers, I have paid bus fare of K1.00 a day for five (5) years.  That amount is a lot of money that cannot be reimbursed by the Department.  If squad vehicles can pick up members at Hagen Tech and Kagamuga, I see no reason why I don’t get picked up.
5.       As para. three (3) refers, I don’t know what criteria is used in issuing married houses but having married before joining the Force in 1986 with three (3) kids on strength I feel that I deserve a house.  Members who joined the Force after me and got married later were given married houses.
6.       A room at the single barracks was given to me by Sgt. RAVA but while I was on operations in Buka it was given to another member.  If I still had the room I would sleep in the barracks and come to work.
7.       Because of these problems I just gave up hope of coming to work.
8.       That is all I have to say.”
It is apparent from para. 7 above that the Applicant admitted the offence.  Therefore, it is not open in this review for the Applicant to rely on any grounds which question the finding of guilt.  As the second ground of review (ground ii) just does that, I dismiss that ground.  Even if I am wrong in dismissing this ground for this reason, I think the grounds particularised under the “natural justice” heading are not available to the Applicant either under the principles of the common law or by under provisions of S. 46 of the Police Force Act:  see Dicky Nanan v Police Commissioner & Anor  N 1507 dated 10th February, 1997 per INJIA, J.
On the question of excessiveness of punishment, the Court should not interfere with the punishment unless it is satisfied that the tribunal or disciplinary authority abused its powers or where the punishment is such that no reasonable tribunal or authority would have imposed the punishment in the light of all the circumstances of the offence:  Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122 at p. 124.
This is a case where a member of the disciplinary force with a good record of employment spreading over 10 years was dismissed outright for failing to turn up for work due to circumstances partly created by his employer.  Yet this is the Applicant’s first disciplinary offence.  For this, he was already penalised with a suspension with 1/2 (half) pay only for 21 days.  The officer-in-charge of Discipline matters at Police Headquarters, Insp. J. Waira recommended to the Respondent a penalty of the maximum monetary fine as an appropriate penalty or one (1) months pay.  The Respondent chose to dismiss the Applicant.  No reasons are available before me as to why he preferred to reject the recommendation of Insp. Waira.  It is in Respondent’s discretion to accept or reject the recommendation of his sub-ordinate but he should have given reasons to justify his decision to dismiss.  I consider that no reasonable disciplinary authority could have imposed the punishment in the circumstances.  In the circumstances, I am satisfied that an appropriate punishment should have been a monetary fine.  I therefore quash the penalty of dismissal and in lieu thereof, impose a forfeiture of one (1) month’s pay.  I also order that the Applicant be re-instated to the Police Force forthwith.
In considering whether the Applicant should be re-instated with full pay back-dated to 23 April 1993 as an additional relief, that is a matter in the discretion of the Court.  The Court may refuse to grant such relief where “in the opinion of the Court, the granting of the relief sought would be...detrimental to good administration”: National Court Rules, Order 16 r. 4 (1).  In my view, it would not be in the interest of good administration of the Police Force to accord a member against whom a disciplinary conviction is sustained on the grounds of failing to turn up for duty for a considerable period, in this case three (3) months, to be paid his full salary and other service entitlements lost whilst waiting for judicial review of his dismissal.  To allow him to re-coup such entitlements is to pay him for work he has not performed.  Also, equitable principles militate against such payments in these circumstances.
On the question of costs, because the issues of guilt and punishment are equally split between the parties, I order that each party bear their own costs.
Lawyer for the Applicant: DL O’Connor Lawyers
Lawyer for the Respondent: Solicitor General