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Mungu v Kanene, Director General of National Intelligence Organisation [2002] PGNC 9; N2391 (2 December 2002)

N2391

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO: 767 of 2001

Between:

EMMANUEL MUNGU
-Plaintiff-

And:

TOKAM KANENE
THE DIRECTOR GENERAL OF NATIONAL INTELLIGENCE ORGANISATION
-First Defendant-

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Second Defendant-

WAIGANI: GAVARA-NANU J.
2002 : 19th and 25th July
: 08th August
: 02nd December

PRACTICE AND PROCEDURE – Public Service -Public Services Management Act,1995, - s. 52 (2) and (5) – Senior public servant – Serious disciplinary charges - Disciplinary charges properly laid but not on the Department letter head is a technical defect and is overcome by the full and unequivocal admissions of guilt – Demotion of a senior civil servant by two grades for lying and making false representations to a management meeting – Punishment not excessive.

Cases cited:
Harding –v- Terepoi Timbers Pty Ltd [1988] PNGLR 128

Legislation referred to:
Public Services Management Act, 1995.
Public Services General Orders

Counsel:
A. Baniyamai for the plaintiff
M. Kua for the defendant

GAVARA-NANU J: This is an application by the plaintiff for his suspension, demotion and eventual termination from his employment by the defendants to be declared null and void and be reinstated to his former employment with full entitlements.

The relevant factual background of the case is this - The plaintiff was employed by the National Intelligence Organisation (hereinafter referred to as ‘the NIO’) since 1994, as a Senior Research Officer Clerk Class 9. He remained in that position until 1996, when the position was upgraded to Grade 13, following an internal staff restructure. From 1997 to early January, 1999, the plaintiff served as the Senior Political Analyst in the National Security Advisory Committee in the Prime Minister’s Department on secondment. In late January, 1999, he returned to his position as the Senior Research Officer in the NIO. When his position was upgraded to Grade 14 in late 1999, he applied for the position and won it.

In January, 2000, the plaintiff was the Acting Assistant Director – Internal Security, when the incumbent of that position was attending a three months course in Hawaii. That position entitled the plaintiff to have an unrestricted use of an official vehicle.

In April, 2000, he had an accident with the official vehicle. Without reporting the accident to his superiors, he put the vehicle in a workshop and paid K 300.00 deposit to that workshop for the repairs to be done on the vehicle.

On 19th April, 2000, when the plaintiff was asked about the vehicle during a NIO management meeting, he told the meeting that the vehicle was in a workshop, but did not disclose to the meeting that he had an accident with the vehicle and that it was damaged.

On 19th April, 2000, the Director General of the NIO, who is the first defendant, charged the plaintiff for giving false account of the official vehicle during the management meeting on 19th April, 2000. The plaintiff was further charged for raising a false invoice No. 99 for the damaged official vehicle on 16th April, 2000. The plaintiff was subsequently suspended with pay from 20th April, 2000.

On 26th April, 2000, in his reply to the charges, the plaintiff admitted the charges. The plaintiff‘s reply in part read:

"I plead guilty to both above charges laid against me. In deliberating your decision against my guilt, I humbly appeal to you to take into account the happenings that lead (sic.) to my conduct.

When this vehicle got hit on the side, I could not admit the truth as the guilt of the situation prior to this accident had placed me under intense pressure. I lied to save my integrity while hoping that I would find the money to have the vehicle paid from the workshop. Had all this situation had (sic) not come about I would not have lied.

I eventually had to admit the truth to Hicks asking him to talk to you under normal administrative procedure as I am his subordinate.

People do make mistakes and I have made this mistake and now I do regret. I just hope you will be more understanding and rational in your decision... "

So, it can be seen that the plaintiff’s admission of the charges laid against him were full and unequivocal, for which, he no doubt expected to be punished, as it can be clearly noted from the last paragraph of his reply. That is also clear from paragraph 19 of his affidavit, sworn on 28th November, 2001, where he said:

"In the letter of reply, I admitted to the charges and prayed for lenience as this was my first disciplinary offence"

On 3rd May, 2000, after he replied to the charges, he was served with the notice of his punishment under s. 52 (c) of the Public Services Management Act (hereinafter referred to as "the PSM Act), and that notice was served with an accompanying memo from the first defendant, dated 2nd May, 2000. The memo in part read:

"I have had the opportunity to assess the circumstances, and situations relating to the damage of the NIO vehicle, also your action/non action of reporting such damages to the authority in the most honest manner in the first instance.

Senior officers are vested with responsibility and honesty is an important component of responsibility and leadership. You persistently denied any other damage to the vehicle other then (sic) the steering problem until our officers had to find out from the workshop that the vehicle had extensive damage. I expect senior officers to talk to me freely on any matter".

In the notice of punishment, the plaintiff was demoted from Grade 14 to Grade 12 and was advised that he had the right to apply to the Public Services Commission (hereafter referred to as ‘the PSC’) if he wanted his punishment to be reviewed.

On 11th July, 2000, the plaintiff appealed to the PSC against the punishment imposed on him saying, it was too harsh because, the damage bill of K 1,500.00 from the workshop for the vehicle was inflated by the labour costs, and that he had paid for the repair. He argued that, his good work record was not taken into account.

The plaintiff was later terminated from his employment by the Deputy Director General of the NIO, on 26th January, 2001, on a separate charge that he had attempted to seduce a female employee of the Department of Foreign Affairs. The plaintiff denied that second charge and it appears that the allegation was never substantiated.

On 10th April, 2001, the PSC wrote to the first defendant recommending that the plaintiff’s first punishment, which was demotion from Grade 14 to Grade 12 be revoked. The PSC said the first charges against the plaintiff did not comply with the procedures laid down in the Public Service General Orders because they were prepared in the NIO letter head and further more, the plaintiff was denied natural justice and that the circumstances only warranted a strong caution with a surcharge.

The defendants have conceded that the plaintiff’s termination arising from the second charge was illegal, and have agreed that the plaintiff is entitled to be reinstated. However, they argued that the first punishment which was the demotion from Grade 14 to 12 is valid, and the plaintiff should be reinstated only to Grade 12. Mr Kua argued that the first charges which resulted in plaintiff’s demotion are valid and the plaintiff was given the opportunity to be heard on the charges and was heard. Mr Kua submitted that the punishment was therefore proper and should not be disturbed by the Court.

In his letter of reply to the PSC dated 28th May, 2001, on the PSC’s recommendation for the revocation of the plaintiff’s demotion, the first defendant emphasized on the need for the officers of the NIO to conduct themselves with high degree of personal integrity, trust and commitment. He said these were the pre-requisites to their employment with the NIO and officers who could not maintain those standards were not suitable for the sensitive and important work of the NIO. The first defendant’s letter is Annexure ‘R’ to the plaintiff’s affidavit.

Looking at the reasons given by the PSC for its recommendation for the plaintiff’s demotion from Grade 14 to Grade 12 to be revoked, I say this, I do not consider the fact that the charges were laid, using the NIO letter head and not in the form provided by the General Orders to be a substantial defect, or non compliance with the General Orders to invalidate the punishment imposed on the plaintiff. This is because the charges did state that they were laid under s.52 (2) (a) and (b) of the PSM Act. I also have no doubt that the plaintiff was fully aware of the reasons, or the basis on which the charges were laid. That is clear from his detailed answer to the charges which is Annexure ‘B’ to his affidavit. Further more, I do not think the issue of natural justice arises at all because, he was given the opportunity to be heard and was heard before the punishment was imposed.

But, I think the overriding reason why the plaintiff’s argument on this point must fail is that, he made full and unequivocal admissions to the charges laid against him. That must in my opinion overcome any technical procedural defects. Here the plaintiff pleaded guilty and only asked for leniency. The fact that the charges were not prepared in a proper form, cannot affect or invalidate the charges which were properly laid under the PSM Act, and the penalty that was imposed on him. As noted, the plaintiff had conceded the charges and made full admissions. In those circumstances, it is totally absurd for the plaintiff to expect the Court to exonerate him from the charges.

As to the punishment itself, demotion is not the most serious punishment under s.52 (5) of the PSM Act. The circumstances in which the charges were laid are very serious. In fact, I think the plaintiff was lucky that he was not terminated. He was a senior staff in the NIO and as the first defendant pointed out, he was expected to be honest in his work and conduct himself with integrity. Here, he lied not to an individual officer or to his sub-ordinate but to NIO management meeting, and raised a false invoice for the damaged vehicle. Those were in my opinion very serious which warranted termination. The first defendant had a discretion under s. 52 (5) of the PSM Act, to impose the punishment which he considered was appropriate in the circumstances of the case, and he in the exercise of that discretion considered that demotion was appropriate. I cannot find any error in the exercise of that discretion. The punishment of caution suggested by the PSC would have been very lenient in the circumstances of the case.

I therefore uphold the punishment imposed by the defendants and dismiss the plaintiff’s application to be reinstated to Grade 14.

The plaintiff is therefore to be reinstated to Grade 12, if not within the NIO, then somewhere in the Public Service, with full entitlements, which will include all the unpaid salaries and the other emoluments as of 1st February, 2001, to today’s date, which is 1st December, 2002. This period is based on paragraph 8 of the plaintiff’s affidavit sworn on 15th July, 2002.

The plaintiff has asked for damages for mental distress. The Court was told that the plaintiff has suffered depression. He has also adduced evidence that he has become suicidal lately and has been psychologically affected. This is not a claim for damages, but obviously he has suffered distress which must relate partly to his termination which the defendants have conceded to be unlawful. For that, I can only award a nominal amount because his distress is the direct consequence of the serious disciplinary offences he committed, which he had readily admitted. In the circumstances, I award K 1,000.00 for emotional distress. See. Harding -v- Terepoi Timbers P/L [1988] PNGLR 128.

The issue of costs is discretionary, and I consider that although I have dismissed the plaintiff’s application for his demotion to be declared null and void, I am of the view that he is entitled to his costs, because he was still entitled to come to this Court to defend or challenge his termination which the defendants belatedly conceded during trial was unlawful.

I therefore Order that the plaintiff’s costs of these proceedings be paid by the defendants.
___________________________________________________________________
Lawyers for the plaintiff : Stevens Lawyers
Lawyers for the defendant : Solicitor General