N3256

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 384 of 2004

Between

MICHAEL MONDIA
Plaintiff

And

RICHARD SIKANI,
COMMISSIONER,
CORRECTIONAL SERVICES
First Defendant

AND

PETER TSIAMALILI –
SECRETARY, DEPARTMENT
OF PERSONNEL MANAGEMENT
Second Defendant

AND

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Third Defendant

Waigani: Injia, DCJ
2007: 20 April

JUDICIAL REVIEW – Dismissal of Senior Correctional Service Officer on disciplinary grounds – Correct disciplinary procedures under Correctional Service Act 1995 not followed – Disciplinary procedure under Public Service (Management) Act 1986 followed – Error of law – Application granted – Decision quashed and matter remitted to Commissioner to follow proper procedures.

Cases cited:

Hendrick Naimo v Kelly Karella & Another (2005) N2837

Counsel:

S Kaule, for the Plaintiff
F Cherake, for the Defendants

20 April, 2007

1. INJIA, DCJ: By Amended Notice of Motion filed on 27 October 2006, the plaintiff applies for an order in the nature of certiorari to quash three decisions of the first defendant (Commissioner) made on 15 April 2002, 17 April 2002 and 30 September 2003. He also seeks consequential declaratory orders. The application is made under O 16 of the National Court Rules (NCR). Leave to apply for judicial review was granted on 23 August 2004. The application is contested by the defendants.

2. The plaintiff relies on his affidavit sworn on 7 June 2006 (Exhibit "A"), and another affidavit sworn on 31 July 2006. The defendants rely on the Commissioner’s affidavit sworn on 8 November 2004 (Exhibit "C").

3. The plaintiff is an officer of the Correctional Services ("CS"). At the time of his dismissal on 30 September 2003, he was a Chief Superintendent in rank and had served the CS for thirty (30) years.

4. The undisputed facts are that in 1993, the Commissioner suspended the plaintiff for three (3) years on some allegations of abuse by a female warder, one Corp. Napira Yumb. The Commissioner dealt with the complaint under the disciplinary procedure set out in the Public Service (Management) Act 1995 (PSM Act). The plaintiff sought a review of the decision by Public Service Commission (PSC) under s 18 of PSM Act 1995. On 8 July 1996, PSC found the lengthy suspension without laying charges to be unlawful and in breach of principles of natural justice. PSC recommended the immediate uplifting of the plaintiff’s suspension and re-instatement as Acting Deputy Commissioner (Operations) and retaining his substantive position as Senior Superintendent. In 1996 the Commissioner lifted the suspension and re-instated him. In National Court judicial review proceedings OS 421 of 1996, the National Court ordered that he be paid his service entitlements from 9 December 1993 – December 1996. 

5. It appears Corporal Yumb’s complaint against the plaintiff was not substantively dealt with.

6. The allegations resurfaced in 2001. This time the CS Employees Association took up the matter. Corp. Yumb in a written statement made allegations of sexual harassment against the plaintiff in 1992. Again, he was dealt with under the disciplinary procedure set out in the PSM Act. On 15 March 2002, the Commissioner charged him under s 50 of the PSM Act and suspended him under s 52 of the PSM Act. On 25 March 2002, he replied to the charge denying the charge. On 27 March 2002, the Commissioner sought from the plaintiff a detailed explanation to the charge. Whilst the plaintiff was preparing his detailed reply, on 15 April 2002, the Commissioner imposed penalty of "dismissal from the Correctional Service" under s 52 of PSM Act. Then on 17 April 2002 Commissioner demoted him. 

7. On 23 April 2002, he lodged an appeal under the Correctional Services Act 1995 ("CS Act"), to the Chairman of the Correctional Service Appeals Tribunal ("the tribunal"), which was chaired by Deputy Chief Magistrate Mr Steven Oli. On 31 July 2002, the tribunal decided that because the disciplinary procedure under the PSM Act was applied and not the disciplinary procedure under the CS Act, the tribunal lacked jurisdiction to hear the appeal. In his view, the appropriate reviewing authority would be the PSC under s 18(1) and (2) of the PSM Act. 

8. On 31 July 2002, the plaintiff wrote to PSC seeking a review of the Commissioner’s decision. On 23 October 2002, PSC decided to discontinue the review and close its file for the reason that in 1996, PSC found that the plaintiff’s suspension for the same offence was found to be irregular. 

9. PSC also was of the view that the plaintiff was dealt with under PSM Act which is the wrong Act. On 28 October 2002, the PSC wrote to the Chairman of the tribunal advising him to advice the Commissioner that he was "totally wrong" in dealing with the plaintiff under the wrong Act; he should have been dealt with under the CS Act. 

10. On 7 November 2002, Mr Oli wrote back to PSC maintaining his position as per his ruling on 23 April 2002 – that it is PSC which should conduct the review under the PSM Act. 

11. On 11 November 2002, the plaintiff wrote to the Acting Commissioner Mr Kelly Karela, seeking re-instatement. The Acting Commissioner sought legal advice on the issue from the State Solicitor. After receiving that advice, on 10 March 2003, he re-instated the plaintiff to his rank of Chief Superintendent with full entitlements backdated to the date of dismissal.

12. On 30 September 2003, Commissioner Sikani revoked the Acting Commissioner’s decision. His reasons were:

"Following a serious disciplinary charge laid against you in 2002, you were subsequently dismissed in March the same year.

"The appeal you made to the Correctional Service Appeals Tribunal was rejected. The Public Service Commission, being the legislative vehicle that presides on public servants appeal cases to enable your return, closed its files on your case as part of its recommendation, not indicating your return.

"The decision to have you reinstated in March 2003 is improper. The same office that dismissed you cannot be used to reinstate you. The PSC being the neutral adjudicator did not recommend your return.

"Those being the reasons, I am restoring the dismissal orders and nullify the reinstatement.

You will effectively cease duties as of COB effective 1606 hours Wednesday 01st October 2003."

13.	On 3 October 2003, the plaintiff sought a review of the decision by PSC. On 25 March 2004, PSC advised in 2002, it has discontinued the review and closed its file. The PSC then went on to say:

"Having said the above, the Commission considers to be valid your argument that you were wrongly charged under the Public Service (Management) Act, and you may advance that argument before the Correctional Services Appeal Tribunal, and it has power to uphold your appeal on that ground, should it considers your dismissal null and void, or invalid, on that ground.

"If you are still not happy with the decision of the Correctional Service Appeal Tribunals you, of course, may seek remedy in the National Court.

"We regret that we cannot assist you further in this matter, but we wish you luck in your appeal to the Correctional Service Appeal Tribunal"

14. The plaintiff now seeks a review of the above decision as well as his decisions of 15 April 2002 and 17 April 2002.

15. The main issue raised by the grounds of review is whether the Commissioner erred in law in applying the disciplinary procedure under the PSM Act in dealing with the complaint against the plaintiff. The State concedes that the proper procedures for dealing with disciplinary matters against CS Officers is under the CS Act. This position is supported by the PSC. I accept this position as being the correct legal position. In my view, the process therefore was fundamentally flawed. The Tribunal in my view was wrong in deciding to deal with this jurisdictional point as advised by the PSC in its letter of 25 March 2004. If it did so, it could have quashed the decision of the Commissioner on that ground alone.

16.	The other issues of bias and breach of principles of natural justice are not necessary to be decided. Consequently, the Acting Commissioner’s decision to re-instate the plaintiff should be upheld. He shall be paid his entitlements back-dated to the time of his dismissal. These entitlements also constitute the damages as claimed in the Statement, par (h).

17. As for the complaint of sexual harassment against the plaintiff by Corp. Yumb, it is fair and in the interest of good administration of a disciplined service, that merits of the complaint should not go unreached. It is in the interest of good administration of CS that serious allegations of sexual harassment of a fellow female CS Officer levelled against a Senior CS Officer should be dealt with. The proper procedure to be followed are as discussed in my decision in Hendrick Naimo v Kelly Karella & Another (2005) N2837. It is normal for a court to order a rehearing following correct procedures where a tribunal or statutory body commits a procedural blunder in dealing with a matter within its jurisdiction. In the present case the Commissioner is given disciplinary powers under the CS Act. Instead of appointing a Disciplinary Board to deal with the complaint under s 42 of the CS Act, he applied the procedure under PSM Act. As a result, the procedure was fundamentally flawed. This time, the Commissioner should follow the correct procedures.

18. The orders of the Court therefore are:

1.	 The application for judicial review is granted.
2.	The Commissioner’s decision made on 15 April 2002 and 17 April 2002 and 30 September 2003 are quashed.
3.	The decision of Acting Commissioner made on 3 March 2003 is confirmed.
4.	The plaintiff is re-instated to the Correctional Service on the rank of Chief Superintendent effective from 15 April 2002, forthwith.
5.	The Commissioner shall calculate and pay the plaintiff’s outstanding service entitlements to be backdated to 15 April 2002.
6.	If there is a dispute between the plaintiff and the Defendant as to the plaintiff’s entitlements which is not settled, then either party is granted liberty to apply to this Court for assessment of damages.
7.	The Complaint by female Corporal Napira Yumb is remitted to the Commissioner to be reheard under the disciplinary procedure set out in the Correctional Services Act 1995.
8.	The Defendants shall pay the plaintiff’s costs of these proceedings.

___________________________________

Kaule Lawyers: Lawyer for the Plaintiff
State Solicitors: Lawyer for the Defendants