N5536

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 324 OF 2013

BETWEEN

JOSEPH KLAPAT – SECRETARY, DEPARTMENT OF COMMUNITY DEVELOPMENT
Plaintiff

AND

NATIONAL EXECUTIVE COUNCIL
First Defendant

AND

THE PUBLIC SERVICES COMMISSION
Second Defendant

AND

HON. SIR PUKA TEMU – MINISTER FOR PUBLIC SERVICE
Third Defendant

AND

HON. LOUJAYA TONI – MINISTER FOR COMMUNITY DEVELOPMENT
Fourth Defendant

AND

ANNA SOLOMON – ACTING SECRETARY, DEPARTMENT OF COMMUNITY DEVELOPMENT
Fifth Defendant

AND

ANO PALA, MP – ACTING GOVERNOR GENERAL & ACTING HEAD OF STATE
Sixth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant

Waigani: Makail, J
2014: 26th February & 21st March

JUDICIAL REVIEW – Suspension of Departmental Head – Executive decision to suspend Departmental Head – Review of decision to suspend Departmental Head – Procedure for suspension discussed – Investigation of alleged misconduct against Departmental Head – Investigating authority – Public Services Commission – Independent Investigation Committee – No investigation by Public Services Commission – No recommendation to suspend by Public Services Commission – Breach of prescribed procedure – Error of law – Constitution – s. 193(1D) – Public Services (Management) Act, 1995 – s. 31D. 

JUDICIAL REVIEW – Suspension of Departmental Head – Suspension pending investigation into allegations of misconduct in office – Decision to suspend made without recommendation from Public Services Commission – Commissioning of Independent Investigation Committee – Composition of – Members include officers within Department and subordinates of Departmental Head – Independence of – Impartiality of – Report by Independent Investigation Committee - Legality of – Reasonableness of decision to suspend Departmental Head.
 
Facts

The plaintiff is the Departmental Head of the Department of Community Development. He was suspended from office by the Head of State acting on advice of the National Executive Council and in his place, the fifth defendant was appointed as acting Departmental Head. He applied to the Court to review the decision to suspend him and appointment of the fifth defendant as acting Departmental Head. He sought among others, an order in the nature of certiorari to quash the decision. 

Held:

1.	The procedure on suspension of a Departmental Head is prescribed by s. 193(1D) of the Constitution, s. 31D of the Public Services (Management) Act, 1995 and the contract of employment.

2.	According to s. 193(1D) of the Constitution, s. 31D of the Public Services (Management) Act, 1995 and the contract of employment, the investigating authority in relation to the question of suspension of a Departmental Head pending investigation into allegations of misconduct in office is the Public Services Commission and it is the only body that recommends to the National Executive Council to suspend a Departmental Head.

3.	The decision of the National Executive Council to suspend the plaintiff pending investigation was in breach of the procedure prescribed by s. 193(1D) of the Constitution, s. 31D of the Public Services (Management) Act, 1995 and the contract of employment because the then Minister for Community Development by-passed the Minister for Public Service and the Public Services Commission when he presented a Submission directly to the National Executive Council to suspend the plaintiff.

4.	An independent Investigation Committee established under clause 26.6 of the contract of employment must comprise of persons who have no association or interest in the matters, subject of the investigation.

5.	The decision of the National Executive Council to commission the fifth defendant to establish an Investigation Committee comprising of officers within the Department of Community Development and subordinates of the plaintiff was in breach of the terms of the contract of employment and unreasonable.

6.	The application for judicial review was upheld, the decision of the National Executive Council to suspend the plaintiff from office and appointment of the fifth defendant at acting Departmental Head was quashed and the plaintiff was reinstated forthwith. 

Cases cited:

Yama v PNGBC Ltd (2008) SC922
Herman Gawi v PNG Ready Mixed Concrete [1984] PNGLR 1974
Samuel Aiye Nema v Rural Development Bank Ltd (2012) N5217 
Doriga Mahuru & Ors v Hon. Lucas Dekena & The State (2013) N5305
Francis Damem v Mark Mapakai as Minister for Justice & Ors (2004) N2730 
Isaac Lupari v Sir Michael Somare & The State (2008) N3476 
Thadeus Kambanei v The National Executive Council & 5 Ors (2004) N3065 
Dr Peter Kora v The State (2013) N5230 

Counsel:

Mr B S Lai for Plaintiff 
Mr A Baniyamai, for First, Third - Seventh Defendants
Mr M Kadai for Second Defendant

JUDGMENT
21st March, 2014

1.	MAKAIL, J: The plaintiff is the Departmental Head of the Department of Community Development. On 11th January 2012, he was suspended from office by the Head of State acting on advice of the National Executive Council of 29th December 2011 and in his place the fifth defendant was appointed as acting Departmental Head effective from 29th December 2011. The decision was gazetted in the National Gazette No. G18. He applies to this Court to review the decision to suspend him and appoint the fifth defendant as acting Departmental Head. He seeks, among others, an order in the nature of certiorari to quash the decision. 

Parties' Evidence

2.	He relies on the following affidavits which were tendered and marked as exhibits:

a)	 His affidavit sworn on 13th June 2013 and filed on 14th June 2013 (Exhibit "1").
b)	His affidavit verifying facts sworn and filed on 17th June 2013 (Exhibit "2").
c)	His Further affidavit sworn and filed on 19th June 2013 (Exhibit "3"). 
d)	His affidavit in response sworn on 15th October 2013 and filed on 21st October 2013 (Exhibit "4").
e)	His affidavit in support sworn on 23rd January 2014 and filed on 27th January 2014 (Exhibit "5").
f)	His further affidavit sworn and filed on 27th January 2014 (Exhibit "6").
g)	His additional affidavit sworn on 10th February 2014 and filed on 13th February 2014 (Exhibit "7").
h)	His supplementary affidavit sworn on 10th February 2014 and filed on 13th February 2014 (Exhibit "8").

3.	The defendants rely on the following affidavits in response which were also tendered and marked as exhibits:

a)	Affidavit of Chief Secretary Sir Manasupe Zurenuoc sworn on 04th October and filed on 14th October 2013 (Exhibit "D1").
b)	Affidavit of Loujaya Toni Kouza sworn on 04th October 2013 and filed on 07th October 2013 (Exhibit "D2").
c)	Affidavit of Sylvester O'oru sworn and filed 05th September 2013 (Exhibit "D3"). 
d)	Affidavit of Andy Bawa sworn on 04th October 2013 and filed on 10th October 2013 (Exhibit "D4").
e)	Affidavit of Anna Solomon sworn on 14th January 2014 and filed 21st January 2014 (Exhibit "D5").
f)	Affidavit of Anna Solomon sworn and filed on 17th February 2014 (Exhibit "D6").
g)	Affidavit of Anna Solomon sworn and filed on 15th July 2013 (Exhibit "D7").
h)	Affidavit of the Acting Chairman of Public Services Commission Dr Phillip Kereme sworn on 23rd October 2013 and filed on 18th February 2014 (Exhibit "D8").

Backgrounds Facts

4.	In his written submission counsel for the plaintiff sets out the background facts of the case and facts leading to the decision. Most are not relevant to the issues raised in these proceedings. The facts which are relevant and not disputed are; the decision was the end result of allegations of widespread mismanagement and abuse of power by the plaintiff in the Department. Sometimes in early December 2011, the then Minister for Community Development Hon. Andrew Mald, MP authored a Statutory Business Paper ("Submission") for Members of the National Executive Council ("NEC"). The purpose of the Submission was to seek the approval of the NEC to suspend the plaintiff pending investigation and to appoint the fifth defendant as Acting Secretary pending the outcome of the investigation.

5.	After the plaintiff was suspended, on 20th August 2012, the NEC resolved and advised the Head of State to revoke his suspension and reinstate him. By the same decision, it advised the Head of State to revoke the appointment of the fifth defendant as Acting Departmental Head and return her to her substantive position. On 28th August 2012, acting on the advice of the NEC, the Head of State revoked the suspension of the plaintiff, reinstated him, revoked the appointment of the fifth defendant as acting Departmental Head and returned her to her substantive position.

6.	In between, the plaintiff and the fifth defendant commenced a number of Court proceedings to challenge the NEC decisions but the pertinent one was the one commenced by the fifth defendant on 05th October 2012. It was the judicial review proceedings OS (JR) No 594 of 2012 between the same parties. She sought to review the NEC's decision of 20th August 2012. She alleged that the current Minister was misled to presenting a Submission to the NEC to revoke the suspension of the plaintiff and revoke her acting appointment because the investigation was not competed and the plaintiff was not cleared of the allegations.

7.	On the other hand, the plaintiff alleged that the investigation was completed because on 17th August 2012, the fifth defendant completed an Investigation Report into the serious allegations levelled against him and there was nothing left to be investigated. The Investigation Committee found that the allegations were proven and recommended that his appointment be revoked and he be dismissed from office.

8.	On 26th March 2013, the Chief Secretary to Government received a letter from the plaintiff requesting payment of funds in the sum of K1.4 million to a number of service providers of the Department. At that time, the defence alleged that he was suspended and had no authority to hold himself out as the Secretary. On 01st May 2013, acting on a complaint by the Programme Director for "Strongim Pipol, Strongim Nesen" ("SPSN") of 23rd January 2013, the fifth defendant laid a complaint with the police against the plaintiff and two other persons for attempting to defraud the SPSN project funds in the total sum of K200,000.00 held at ANZ Bank. The police registered the complaint and are investigating it and are yet to lay charges against them.

9.	On 05th June 2013, the National Court constituted by Cannings, J upheld the application for judicial review in proceedings OS (JR) No 594 of 2012 and quashed the NEC decision of 12th August 2012. As a result, the plaintiff remained suspended pending completion of the investigation and the fifth defendant remained acting Departmental Head. Ten days later, on 14th June 2013, the plaintiff commenced these proceedings.

10.	In an attempt to resolve the dispute, particularly in relation to the conflicting positions in relation to when the NEC was to deliberate and decide on the Investigation Report of 17th August 2012, on 21st November 2013, the National Court ordered by consent that the fifth defendant furnish the Investigation Report to the NEC to deliberate and make a decision by or before 20th December 2013. On 03rd December 2013, the third and fourth defendants co-authored a Submission for the NEC which among others, stated that the disciplinary procedure under the plaintiff's contract of employment was not followed when he was suspended and investigated. 

11.	On 19th December 2013, the NEC in its meeting No. 37/2013 deliberated on the Investigation Report and did not approve it. Instead, it directed that a further investigation be conducted into fresh allegations against the plaintiff. They are attempted fraud and misappropriation of K200,000.00 from the SPSN Project funds held by the Department, attempted fraud and misappropriation of K1.4 million from the Department of Finance and authorisation and payment of K17,000.00 to a company owned by his brother. The NEC did not express a view on the suspension of the plaintiff and the re-appointment of the fifth defendant as acting Departmental Head pending this new investigation. Given the conflicting positions, parties did not resolve the dispute and return to Court for a judicial determination.

Grounds of Review

12.	The plaintiff relies on three grounds. They are:

(a)	Breach of prescribed procedure under the Constitution and Statute or Error of law.
(b)	Breach of prescribed procedure under the contract of employment.
(c)	Unreasonableness of the decision.

Plaintiff's Submissions

13.	Counsel for the plaintiff made extensive submission on the first ground but the gist of his submission is that according to s. 193(1D) of the Constitution and s. 31D of the Public Services (Management) Act, 1995, it is mandatory that before the plaintiff is suspended, the Public Services Commission ("Commission") must investigate and find that there is basis for the plaintiff to be suspended. If there is, the Commission shall recommend to the NEC to suspend the plaintiff and the NEC shall advise the Head of State to suspend the plaintiff. 

14.	The contention is that the defendants did not comply with this procedure when the then Minister bypassed the Commission and went directly to the NEC with his Submission to suspend the plaintiff. Based on that Submission, the NEC advised the Head of State to suspend the plaintiff.

15.	As to the second ground, counsel submits that the plaintiff's contract of employment also provided for the disciplinary procedure and before the plaintiff is suspended the Commission must be consulted and recommend to the NEC to suspend him. Again, the defendants breached it when the then Minister Hon. Andrew Mald by-passed the Public Services Commission and recommended in the Submission directly to the NEC to suspend the plaintiff pending investigation. This is a clear error of law. 

16.	In relation to the last ground, counsel relies on clause 26.6 of the contract of employment and submits that this provision is in mandatory terms and obliges the NEC to appoint an independent Investigation Committee to investigate the allegations against the plaintiff. In this case, the members of the Investigation Committee are not independent because apart from Legal Advisor and private lawyer Mr Jeffrey Abone and Private Consultant Mr Joseph Yomba, the rest are officers within the Department and the plaintiff's subordinates. 

17.	By directing the fifth defendant to commission an Investigation Committee comprising of officers within the Department and it producing an Investigation Report to the NEC for deliberation, the NEC allowed itself to be influenced by irrelevant matters. Therefore, its decision and the Investigation Report are flawed and should not stand. Finally, counsel submits that in the event that the Court finds in favour of the plaintiff, it is open to the Court to grant the relief he seeks and the Court can grant them. 

Defendants' Submissions

18.	Counsel for the Commission unreservedly concedes that the procedure as outlined by the counsel for the plaintiff was not followed. He says that the Commission did not conduct an investigation and recommend to the NEC to suspend the plaintiff nor did it receive a request from the Minister for Public Service to investigate the plaintiff before recommending to the NEC to suspend the plaintiff. 

19.	The rest of the defendants strongly oppose the application for review. Their counsel did not specifically address the grounds of review in his submission but makes a number of important points in his submission. Summarising them, these are:

(a)	Suspension of the plaintiff is part of the whole disciplinary process, the end result of which would be a decision to dismiss or uphold the disciplinary charge(s) and imposition of a penalty by way of punishment such as, dismissal from office, demotion, fine or a reprimand. For this reason, it is premature for the Court to intervene and stop the suspension and investigation of the plaintiff.

(b)	The appointment of the plaintiff as Departmental Head is also flawed. As it is flawed, his contract of employment is also flawed and unenforceable. These matters question his standing and sincerity in bringing the application for judicial review. For, since he seeks equitable relief, he must do equity or come to Court with clean hands in order to be granted the relief he seeks. He does not and the Court must refuse the application.

(c)	The issue of suspension is res judicata because it was decided by the Court in judicial review proceedings OS (JR) No 594 of 2012 between the same parties on 05th June 2013 by Cannings, J.

(d)	Events have overtaken the NEC decision of 29th December 2011 to suspend the plaintiff pending investigation and appoint the fifth defendant as acting Departmental Head of the Department. This is because subsequent to this decision, two significant events occurred which has the effect of rendering these proceedings unnecessary. 

(e)	The first is the NEC decision of 20th August 2012 which revoked the suspension of the plaintiff and reinstated him to his original position. Following that, the fifth defendant commenced judicial review proceedings and sought to review this NEC decision. The National Court upheld the application for judicial review and quashed the decision.

(f)	The second is the recent NEC decision of 19th December 2013 which directed that a fresh investigation be conducted into fresh allegations of attempted fraud and misappropriation of SPSN project funds against the plaintiff and referred them to the Department of Personnel Management to investigate. The lifting of the plaintiff's suspension depends on the completion of the investigation and report to the NEC for further action. The reason for the NEC reaching that decision is to give the plaintiff an opportunity to be heard before a decision is made and to also draft appropriate charges(s).

20.	In response to the plaintiff's counsel submission on the grant of relief, counsel for the first, third to the seventh defendants submits that even if the Court finds in favour of the plaintiff, it still retains the discretion to grant or refuse the relief. In this instance, the Court should refuse them and not reinstate the plaintiff because there is substantial delay since the decision to suspend him and it would be detrimental to good order and administration if the suspension is lifted and he resumes work. Counsel did not specify how reinstating the plaintiff will affect the running of the administration of the Department except to suggest that the investigation is still ongoing and the reinstatement will jeopardise it.

Res judicata

21.	I deal first with the issue of res judicata. It is really an objection to the competency of the proceedings. What the defence is saying is that the issue of suspension is res judicata and this Court lacks jurisdiction to determine it. If the plaintiff is aggrieved by the decision, he should have appealed to the Supreme Court. Res judicata is a legal doctrine and is a bar to a relief. It applies if it can be established by the party relying on it that:

a)	there is an earlier decision and it is a judicial decision.

b)	the judicial decision was pronounced.

c)	the judicial decision was made by a judicial tribunal of competent jurisdiction.

d)	the judicial decision was final.

e)	the judicial decision involved the determination of the same question.

f)	the parties are the same. 

22.	For further discussion on this doctrine, see Yama v PNGBC Ltd (2008) SC922; Herman Gawi v PNG Ready Mixed Concrete [1984] PNGLR 1974; Samuel Aiye Nema v Rural Development Bank Ltd (2012) N5217 and Doriga Mahuru & Ors v Hon. Lucas Dekena & The State (2013) N5305.

23.	The judicial review proceedings OS (JR) No 594 of 2012 was between the same parties. On 05th June 2013, the Court upheld it and among others, quashed the NEC decision of 12th August 2012 to revoke the suspension of the plaintiff and revoke the appointment of the fifth defendant as acting Departmental Head. The reasons for the decision of the Court have not been produced before this Court and so the Court is left with little information to work out the reasons for the Court to uphold the application for judicial review. 
24.	The only information available is the transcripts of these proceedings of 18th July 2013 where the Court constituted by Cannings, J heard the application for leave to apply for judicial review and when referring to order no. 5 of the Order of 05th June 2013 said that the fifth defendant remains acting Secretary and the plaintiff remains the substantive holder until the investigation against him is completed. His Honour further suggested that the order did not prohibit the plaintiff from commencing these judicial review proceedings to review the decision to suspend him in late 2011 and accepted the plaintiff's explanation as to why it was not necessary to appeal the decision of 05th June 2013. The transcripts may be found in annexure "D" to one of the plaintiff's affidavits marked as exhibit "4". 

25.	I agree with his Honour's views. The fifth defendant commenced the judicial review proceedings primarily because of what she alleged was "incomplete investigation" by the Investigating Committee. The issue was whether the investigation was completed and if so, whether the plaintiff's suspension should be lifted and her acting appointment should be revoked. Apparently, the NEC decided to revoke the plaintiff's suspension and revoke her acting appointment. The Court upheld her application for judicial review and quashed the NEC decision. The effect of the Court decision and orders was that the plaintiff remained suspended until the investigation is completed and she remained acting Secretary. Put it the other way, the decision and orders of the Court of 05th June 2013 restored the status quo of 29th December 2011 when the NEC decided to suspend the plaintiff and appoint the fifth defendant as acting Departmental Head.

26.	This position is further confirmed by the fifth defendant's own evidence in these judicial review proceedings where she says in her affidavit (exhibit "7") at paragraph 16 that, "I filed OS (JR) 594 of 2012 on 5 October, 2012. The proceeding was a challenge against the decision of the NEC dated 20 August, 2012, to revoke my appointment and to reinstate the plaintiff when the investigations against him were not completed." (Emphasis added). 

27.	Though, the contentious issue in the earlier judicial review proceedings was the plaintiff's suspension which was outstanding for almost 18 months by the time he commenced these judicial review proceedings. It is the suspension which gives rise to the issue in this case; whether the defendants followed the procedure for suspension to suspend the plaintiff pending investigation. This is the fundamental issue in this case and while the parties are the same, the decision was a judicial decision made by a Court of competent jurisdiction, the issue in the earlier judicial review proceedings is different to the issue in this case. For these reasons, I am not satisfied that the issue of suspension was decided by the Court and is res judicata. I dismiss this objection.

Events subsequent to NEC decision of 29th December 2011

28.	This leads me to the second issue and that is the defence contention that events have overtaken the NEC decision of 29th December 2011. As I have found, the subsequent NEC decision of 20th August 2012 and the decision of the Court of 05th June 2013 did not alter the NEC decision of 29th December 2011. The plaintiff remains suspended while the fifth defendant continues to act in his position pending the investigation.

29.	The recent NEC decision of 19th December 2013 attempts to settle the dispute by referring the matter back to the Department of Personnel Management; this time to give the plaintiff an opportunity to respond to the allegations. In so doing, fresh allegations of attempted fraud and misappropriation of SPSN project funds and others against the plaintiff were added and also referred to the Department of Personnel Management to investigate. In my view this NEC decision did not help resolve the dispute. It only worsened the conflict and drew parties further apart. As a result, parties did not reach an agreement. It also did not alter the original positions of the parties, a point I will discuss in more detail later. For these reasons, I reject the defence submission that events have overtaken the NEC decision of 29th December 2011.

Judicial Intervention

30.	The next issue is whether this is an appropriate case for judicial intervention. It is true that the Court should not unnecessarily interfere with the exercise of executive power. This is the principle underpinning the doctrine of separate of powers. The separate of powers between the three arms of Government must be respected and upheld at all times and I accept the defence submission that where an investigation is underway as result of an executive decision and one is suspended, it is premature for the Court to intervene and stop it. This is because suspension is part of the whole disciplinary process and at the end of the process, a decision is made to either dismiss or uphold the disciplinary charge(s) and by way of punishment, imposition of a penalty such as, dismissal from office, demotion, fine or a reprimand.

31.	But the Court as guardian of the law is duty bound to speak out and enforce the law where the Legislature or Executive has abused its power or acted unfairly. In respect of the executive's exercise of power in disciplinary cases, while there is a general reluctance by the Court to interfere with the disciplinary process while it is in motion, the Courts have nonetheless intervened in cases where it has failed in its duty to follow the procedure prescribed by the Constitution or Statute or failed to act fairly and where there are no alternative avenues by which the aggrieved person may seek redress.

32.	Precedent has been set. Injia, DCJ (as he then was) held this view in Francis Damem v Mark Mapakai as Minister for Justice & Ors (2004) N2730. In that case, after emphasising the importance of suspension as the first step in the whole disciplinary process and the Commission's place in that process, his Honour said:

"These elaborate procedural provisions impose a duty on the Minister to decide, for good cause, whether to refer the matter referred to him by the portfolio Minister, to the Commission. They also impose a duty on the Commission to investigate the matter and decide, for good cause, whether to make a recommendation for suspension to the NEC or the Head of State. Implicit in these procedural provisions is also the duty imposed on the Minister and the Commission to follow the prescribed procedure for making the report or recommendation and do so, correctly. Also implicit in these procedural provisions is that the Departmental Head is assured of due process according to law – that he will be dealt with in accordance with the prescribed procedure in the suspension process and done so fairly. There is no provision in these procedural provisions for a Departmental Head who is aggrieved by a flawed suspension process to seek relief through administrative appeal or review process, in order to protect himself or herself. Therefore, the Departmental Head concerned, such as the Applicant, is entitled to seek judicial intervention to protect himself and his office."

33.	On my part, I believe that as guardian of the law, the Court should not sit back and watch. On the contrary, it should be proactive in this kind of cases, as it is better to minimise the damage now, than later. The Court should be the problem solver and not a mere spectator. Where the Executive arm abuses its power, the Court must intervene. For these reasons, I am not satisfied that it is premature for the Court to intervene. I dismiss this objection.

Breach of Prescribed Procedure under Constitution, Statute and Contract of Employment or Error of Law

34.	The plaintiff pleads breach of prescribed procedure under the Constitution and Statute as a separate ground of review to the ground on breach of prescribed procedure under the contract of employment. This approach is consistent with the approach the Court took in Isaac Lupari v Sir Michael Somare & The State (2008) N3476. In that case, Injia, DCJ (as he then was) dealt with a case of revocation of appointment of the Chief Secretary to Government. After upholding the ground on breach of prescribed procedure on revocation of appointment of the plaintiff as Chief Secretary under the Constitution and the Public Services (Management) Act, 1995, he further considered the ground on breach of prescribed procedure under the contract of employment and also upheld it. His Honour took that course because: 

"....... the provisions of the contract of employment must be read subject to s 31 C of PSM Act and s 193 1C of the Constitution. These provisions are expressed in mandatory terms. They impose a constitutional duty and statutory duty on NEC to consult and obtain the PSC recommendations on matters of appointment and revocation of appointment of a person to the office of Chief Secretary of a Department and this process must precede any decision by NEC to advice the Head of State. In this case, it is clear that that process was not followed in revoking the plaintiff's appointment. I find that the revocation of his appointment was in breach of the provisions referred to."

35.	I have no difficulty in following that approach but at the end of the day, it is the procedure on suspension which the Constitution, Statute and contract of employment seeks to prescribe and uphold, such that I find no difference if I were to consider them together. Taking this course further clarifies the procedure because the Constitution provides the overview of the procedure and at the same time implores an Act of Parliament to set out the procedure in a more detail manner. The procedure is set out in s. 31D of the Public Services (Management) Act, 1995. The contract of employment supplements the Constitution and Statute and sets in a more precise and coherent way, the procedure. For these reasons, I will consider these grounds of review together.

36.	The procedure to suspend a Departmental Head is fairly clear and straight forward. It is not a cumbersome one. It is easy to follow. It is set out in s. 193(1D) of the Constitution, s. 31D of the Public Services (Management) Act, 1995 and the contract of employment. The Constitution, s. 193(1D) states:

"The suspension from office of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, a recommendation by the Public Services Commission following procedures prescribed by or under an Act of Parliament."

37.	The Public Services (Management) Act, 1995, s. 31D states:

"Procedures relating to the suspension from office of Departmental Heads

The procedure relating to the suspension from office of Departmental Heads as referred to in Section 193(1D) (appointments to certain offices) of the Constitution are as follows:-

(a)	the Commission -

(i)	may, on its own volition; or
(ii)	shall, at the request of the Minister responsible for Public Service matters, investigate any activities, conduct of performance of a Departmental Head which would constitute grounds for revocation of appointment under a contract of employment entered into by that Departmental Head under Section 28;

(b)	where, as a result of its investigation, the Commission is of the opinion that the Departmental Head should be suspended from office it shall so recommend to the National Executive Council;

(c)	on receipt of a recommendation under paragraph (b), the National Executive Council shall advise the Head of State to suspend the Departmental Head from office."

38.	The procedure for suspension of a Departmental Head has also been subject of judicial consideration. Thus, this is not the first time this issue has been raised before the Court. In Thadeus Kambanei v The National Executive Council & 5 Ors (2004) N3065, the plaintiff was suspended as the Secretary of the Department of Finance pending investigation into allegations of mismanagement of the Department. He applied for leave to review the decision to suspend him. Injia, DCJ (as he then was), when considering whether there was an arguable case referred to his earlier decision in Francis Damem v Mark Mapakai as Minister for Justice & Ors (supra) and found that there was an arguable case. In reaching that conclusion, his Honour said: 

"............ There is one main ground for review and that is that the NEC decision is seriously flawed in that it was made without a recommendation for suspension by the PSC as required by s.193 ID of the Constitution and s.31 D of the Public Service Management Act (PSMA). In Francis Damem v Minister for Public Service & Ors N2730 (2004), I said that there appeared to be an inconsistency between these two provisions in that under s.193 ID of the Constitution, PSC is required to make the recommendation direct to the Head of State under procedure prescribed by an Act of Parliament, whereas under s.31D of the PSMA, PSC is required to make a recommendation for suspension to the NEC. Whichever way one reads these provisions, the recommendation for suspension must come from PSC and the NEC and/or the Head of State must act in accordance with the recommendation.

6. On the evidence before me, I am satisfied that the Plaintiff has an arguable case on the question of whether PSC made such recommendation, based on which the NEC or the Head of State made the decision to suspend. The Gazette notice shows that PSC was consulted by NEC before it made the decision to recommend suspension by the Head of State. The evidence suggests that PSC was not consulted and it did not make such recommendation. This gives rise to an arguable case in law. For these reasons, I grant leave for judicial review."

39.	In Francis Damem v Mark Mapakai as Minister for Justice & Ors (supra), the plaintiff was the Attorney-General. He was suspended from duties by the NEC pending investigation into allegations of misconduct in office. He applied to the Court to review that decision. Injia, DCJ (as he then was) after considering s. 193(1D) of the Constitution, s. 31D of the Public Services (Management) Act, 1995, s. 2 of the Public Service (Management) (Criteria and Procedures for Suspension and Revocation of Appointment of Departmental Heads and Provincial Administrators) Regulation, 2003 and clause 27 of the contract of employment said this:

"Reading these provisions together, the correct procedure for suspension in a case where the Portfolio Minister makes an allegations of serious misconduct against his own Departmental Head, is that neither the Portfolio Minister or the Minister for Public Service has any power to suspend the Departmental Head. The portfolio Minister must provide a written report to the Minister for Public Service (Regulation, s.2(3)(a), (b)). This is to avoid conflict of interest situation. Based on the report by the Minister for Public Service, if the Commission is satisfied that there is a "prima facie case for suspension", the Commission must make a recommendation to the National Executive Council to "effect the suspension" (Regulation, s.2(3)(c) (first part only). The NEC then decides on the recommendation. Up to this point, the first part of S.2(3)(c) of the Regulation and Clause 27 of the Contract are consistent with S.31D(a) and (b) of the Act." (Emphasis added).

40.	His Honour went on to say:

"......, these statutory and Constitutional provisions treat suspension as the first important step in the disciplinary process and it is treated seriously. It is clear from the scheme of these provisions that a decision to suspend a Departmental Head is a one-off stand alone decision. These elaborate procedural provisions impose a duty on the Minister to decide, for good cause, whether to refer the matter referred to him by the portfolio Minister, to the Commission. They also impose a duty on the Commission to investigate the matter and decide, for good cause, whether to make a recommendation for suspension to the NEC or the Head of State."

41.	I also had the occasion to consider the question of suspension briefly in Dr Peter Kora v The State (2013) N5230. In that case, the plaintiff was the Departmental Head of the Department of National Planning and Monitoring. He was suspended pending investigation into allegations of misconduct in office. He sought leave to review the decision to suspend him. He alleged that there was no report provided to the Public Services Commission prior to his suspension. I said that there were two ways in which a Departmental Head may be suspended if accused of serious misconduct in office. I said:

"10.	Although the plaintiff alleged that there is no report on the investigation, he does not deny providing his response to the PSC. Indeed he met with the Chairman of PSC on 11th December 2012 and handed to him a letter of response to the allegations. The PSC was prompted to carry out investigation because of the report by the third party which in my view is not actually an investigation report as contended by the plaintiff but a complaint. It may also appear suspicious that the plaintiff was suspended on the directive of the Minister responsible but here is the Minister responsible bringing to the attention of PSC allegations of abuse by his Departmental Head. The PSC is the authorised body to investigate and it appears it is carrying out its investigation. According to s. 31D, suspension of a Departmental Head may occur in two instances. One by the PSC on its own volition or two by the PSC at the request of the Minister for Public Service. It appears the former applies in this case as a result of the complaints by a third party and the Minister responsible." (Emphasis added).

42.	The plaintiff's contract of employment sets out in more detail the disciplinary procedure. Clause 26 is pertinent and states:

"26.	Disciplinary Procedures

Pursuant to Section 17 and the Regulations, serious disciplinary offences allegedly committed by the Departmental Head shall be dealt with through the following procedure:

26.1	Where allegations of serious disciplinary offences have been made against the Departmental Head by his or her Portfolio Minister or by the Chief Secretary and dependent upon the circumstances and nature of the allegations, which may require instantaneous removal from office, the Port folio Minister shall give the Departmental Head an opportunity to explain the allegations of misconduct made against him within 3 days after which the Portfolio Minister shall provide a written report to the Minister for Public Service, which contains evidence to support any allegations, or evidence that leads to a reasonable belief that the allegations are true.

26.2	On receipt of this report, the Minister for Public Service shall provide a written report, containing the original allegations and evidence and his/her assessment and recommendation on suspension action to be taken, to the Public Services Commission without delay to enable it to establish whether or not sufficient grounds exist for suspension of the Department Head on disciplinary grounds.

26.3	The Public Service Commission shall investigate the allegations. Where as a result of the investigations the Commission is of the opinion that the Departmental Head should be suspended pending the laying of charges or the conclusion of an investigation, it will so recommend to the National Executive Council. The National Executive Council, on receipt of such recommendation will recommend to the Head of State to suspend the Departmental Head and the Head of State will effect the suspension. This suspension will be on full pay and entitlements and the National Executive Council shall determine the time required to conclude investigations and/ or disciplinary proceedings against the Department Head.

26.4	Where the Public Service Commission is of the opinion that the Departmental Head should not be suspended, it will inform the National Executive Council and the Minister for Public Service and the Departmental Head will not be suspended.

26.5	Public Service Commission may act on its own volition.

(a)	The Public Service Commission may, on its own volition, investigate any activities, conduct or performance which would constitute grounds for revocation of appointment of the Departmental Head under a Contract of Employment.

(b)	Where, as a result of an investigation, the Commission is of the opinion that the Departmental Head should be suspended, it shall be recommended to the National Executive Council and the National Executive Council shall advise the Head of State to suspend the Departmental Head. This suspension will be on full pay.

26.6	Conduct of Investigations

(a)	In effecting a decision to suspend a Departmental Head, the Portfolio Minister may notify the Departmental Head that investigations will be conducted in order to lay disciplinary charges at a later date.

(b)	Investigations will be conducted by an independent committee established by the Chief Secretary under the Chair of the Secretary of the Department of Personnel Management. The Committee will report the findings of their investigations to the National Executive Council within such extended time as the National Executive Council determines.

(c)	Where the findings of the investigations confirm that there is a case to answer, the Portfolio Minister shall lay charges against the Departmental Head without delay. Where the findings of the Investigation are that there is no case to answer, the National Executive Council will advise the Head of State to reinstate the Departmental Head without delay."

43.	Before I can consider whether the defendants suspended the plaintiff in accordance with the contract of employment, I need to consider the defence submission that the reappointment of the plaintiff as Departmental Head was flawed and as a consequence, his contract of employment is also flawed and unenforceable. Based on these matters, they question his standing and sincerity in bringing the application for judicial review. I accept that since the plaintiff seeks equitable relief, he must do equity or come to Court with clean hands in order to be granted the relief he seeks. If he does not, the Court should refuse his request.

44.	The defence rely on a statement in the Submission to the NEC by the then Minister Hon. Andrew Mald that the plaintiff "was appointed as Secretary for the Department of Community Development on his third consecutive term without due process being followed. The position was not advertised and did not go through the PSC selection process." They contend that this evidence is sufficient for the Court to find that the reappointment of the plaintiff as Departmental Head and subsequently, the contract of employment are flawed and in turn establish that the plaintiff did not come to Court with clean hands. 

45.	There are two problems with this submission. First, it is a serious matter to contend that the plaintiff has come to Court with unclean hands. Such contention must be supported by credible evidence. The onus is on the party who alleges and in this case on the defence to establish by credible evidence the allegation. In my view the statement in the Submission is insufficient to find that the re-appointment of the plaintiff as Departmental Head was flawed and the subsequent signing of the contract of employment was also flawed. 

46.	Secondly, a close examination of the NEC decision of 29th December 2011 shows that the reasons for the suspension of the plaintiff were allegations of widespread issues of mismanagement and abuse of power in the Department. Based on these allegations, the NEC directed the fifth defendant to commission an investigation into the financial operations and management of the Department. It did not express a position on the flaws in the plaintiff's re-appointment as Departmental Head and execution of the contract of employment. 

47.	On the other hand, the plaintiff's evidence is that on 31st March 2011, in its Special Meeting No. 7/2011, the NEC re-appointed him as the Departmental Head of the Department for a third consecutive term. 	The NEC decision is dated 01st April 2011. Following this, on 11th October 2011, he signed a contract of employment with the State which was made retrospective to 31st March 2011. The contract was witnessed by the Secretary for the Department of Personnel Management and one other. I accept this evidence. For these reasons, I am not satisfied that the plaintiff's re-appointment and contract of employment are flawed. Thus, I am not satisfied that he has come to Court with unclean hands. I will, accordingly, consider the contract of employment. 

48.	As to the procedure for suspension of a Departmental Head pending investigation, I accept the submission of the plaintiff. The procedure to suspend a Departmental Head pending investigation is different from the procedure to investigate alleged serious disciplinary offences and laying charges. Suspension precedes the laying of charges.

49.	Recapping and re-enforcing the discussions on the procedure for suspension, according to s. 31D of the Public Services (Management) Act, 1995, suspension of a Departmental Head occurs in two ways; first, by the Commission on its own volition conducts an investigation and secondly when it conducts an investigation at the request of the Minister for Public Service. In each case, where it is of the opinion that the Departmental Head should be suspended from office, it shall recommend to the NEC to suspend the Departmental Head. The point to emphasise here is that the investigating authority in relation to the question of suspension of a Departmental Head pending investigation into allegations of misconduct in office is the Commission and it is the only body that recommends to the NEC to suspend a Departmental Head.

50.	In the second scenario, s. 31D (supra) does not state how the activities, conduct or performance of the Departmental Head (allegations) are brought to the attention of the Minister for Public Service. This is where clause 26 of the contract of employment comes into play. According to clause 26.1, it is the Portfolio Minister or the Chief Secretary who makes the allegations against the Departmental Head. If the nature and circumstances of the allegations require instant dismissal, the Departmental Head shall be dismissed. If not, the Portfolio Minister must give the Departmental Head an opportunity to response to the allegations within three days. After that, the Portfolio Minister must provide a written report to the Minister for Public Service. The written report must contain evidence to support the allegations or evidence that leads to a reasonable belief that the allegations are true. 

51.	Then, according to clause 26.2, on receipt of the written report, the Minister for Public Service must provide a separate written report containing the original allegations and evidence with his/her assessment and recommendation on the suspension, to the Commission to consider whether the Departmental Head should be suspended. Clause 26.3 reinforces the requirement under s. 31D(a)(ii) (supra) for the Commission to conduct its own investigation after it receives the written report from the Minister for Public Service.

52.	The other significant matter to note is that in the second scenario, it is the Portfolio Minister who provides a written report to the Minister for Public Service. There are good reasons for this. It avoids the potential risk that the Portfolio Minister may unilaterally make a recommendation directly to the NEC to suspend the Departmental Head. But it does allow the Portfolio Minister to make a contribution and the time to make the contribution is at the start of the disciplinary process where the Portfolio Minister is given the opportunity to make the allegations against the Departmental Head and hear the Departmental Head's response before he provides a written report to Minister for Public Service to consider and then, refer to the Commission to investigate. 

53.	The other reason is that the Minister for Public Service through the Department of Personnel Management is responsible for recruiting and overseeing the performance of public servants including Departmental Heads. On that premise, he must be informed of the proposed disciplinary action against the Departmental Head and supervise its implementation. 

54.	Where the Commission is of the opinion that the Departmental Head should be suspended pending investigation, it must accordingly recommend to the NEC and the NEC may accept and approve the suspension of the Departmental Head and advise the Head of State to accordingly suspend the Departmental Head. The Commission's investigation is solely to determine whether the Departmental Head should be suspended. When the Departmental Head is suspended, this is the end of the suspension process. 

55.	The next stage is the investigation of the allegations. This is where clause 26.6 comes into play. According to this provision, the Portfolio Minister must inform the Departmental Head that an investigation will be conducted into the allegations. It must be conducted by an "independent committee" established by the Chief Secretary under the Chair of the Secretary of the Department of Personnel Management. After the investigation, the independent committee must report its findings to the NEC. When this happens, this is where the investigation process ends. 

56.	Also, at this point, two things happen. First, where the findings of the investigation confirm that there is a case to answer, the Portfolio Minister must lay charges against the Departmental Head. Secondly, where there is no case to answer, the NEC must advise the Head of State to reinstate the Departmental Head without delay. Where charges are laid against the Departmental Head, this is where the procedure set out in s. 31C (supra) and clauses 26.7 – 26.10 of the contract of employment apply but are not relevant for the present purposes.

57.	In this case, the evidence clearly establish that firstly, after the allegations of mismanagement and abuse of power surfaced, the then Minister Hon. Andrew Mald did not give the plaintiff an opportunity to response to them within three days. Secondly, he did not provide a written report to the Minister for Public Service containing evidence to support the allegations or evidence that leads to a reasonable belief that the allegations are true. 

58.	Thirdly, the Minister for Public Service did not provide a separate written report containing the original allegations and evidence with his assessment and recommendation on the suspension, to the Commission. Fourthly, the Commission did not conduct its own investigation after it received the written report from the Minister for Public Service. Finally, the Commission did not conduct an investigation and recommend to the NEC to suspend the plaintiff pending investigation. The Commission also does not dispute the last two matters: see affidavit of Dr Phillip Kereme (exhibit "D8"). 

59.	All these matters establishes to my satisfaction that despite the clear procedure and the judicial pronouncement on the procedure, the then Minister by-passed the Minister for Public Service and the Commission and went directly to the NEC to suspend the plaintiff. As a consequence, he breached the procedure for suspending a Departmental Head prescribed by the Constitution, Public Services (Management) Act, 1995 and the contract of employment. For the forgoing reasons, I am satisfied that the NEC decision was made in breach of the procedure on suspension and is tainted with illegality. It should not continue to stand. I uphold these grounds.

60.	I now return to further discuss the point raised at paragraph 28 above. The evidence of the fourth defendant the current Minister Hon. Loujaya Toni Kouza attempts to show to the Court that she did bring the fresh allegations of attempted fraud and misappropriation of SPSN funds to the attention of the Minister for Public Service by providing a report to him. I refer parties to the Hon. Minister's letter to the Minister for Public Service dated 17th June 2013 (annexure "A" to her affidavit – exhibit "D2"). This evidence suggests that fresh allegations of misconduct in office against the plaintiff have arisen and are being investigation such that the disciplinary process is still in motion and the Court should not intervene and stop it. 

61.	The problem with this assertion is that these fresh allegations do not form part of the original allegations back then in 2011 which led to the suspension of the plaintiff. The Court has found that the NEC decision to suspend the plaintiff was based on the original allegations and was in breach of the prescribed procedure on suspension of a Departmental Head pending investigation. The breach resulting in the illegality of the actions of the defendants taints the whole decision making process because it goes to the root of the process. As a result, the NEC decision is illegal and cannot stand. Any new fresh allegations of misconduct in office that the defendants intend to investigate against the plaintiff such as the allegations of attempted fraud and misappropriation of SPSN project funds and others must comply with the prescribed procedure outlined above. Otherwise, they will also suffer the same fate.

62.	In this regard, there is no evidence that based on these fresh allegations, the Minister for Public Service requested the Commission to investigate and the Commission investigated and recommended to the NEC to suspend the plaintiff pending investigation. On the other hand, according to the NEC decision of 19th December 2013, it directed the Secretary of the Department of Personnel Management to establish dialogue with the plaintiff and ask him to respond to the allegations. As noted, the NEC decision did not express a view on the suspension of the plaintiff pending the investigation and re-appointment of the fifth defendant as acting Departmental Head and correctly so, because the Commission as the only body to recommend the suspension of the plaintiff has not done so. The consequence of this is that as the Court has found that the original NEC decision to suspend the plaintiff is illegal, it must stand and be respected. These new fresh allegations are of no consequence. For these reasons, I am not satisfied that the latest allegations render these proceedings unnecessary.

Unreasonableness of Decision 

63.	This ground may appear to be insignificant when it is compared with the grounds on breach of prescribed procedure but it is one that cannot be overlooked or given less consideration. The undisputed evidence is that based on the Submission presented to the NEC by the then Minister Hon. Andrew Mald, the NEC approved and directed the fifth defendant to establish an independent Investigation Committee. This Committee comprised of the Acting Deputy Secretary (Corporate and Regulatory Services) Mr Leo Kulumbu as Team Leader, First Assistant Secretary (Corporate Services) Mr Jerry Ubase, Senior Internal Auditor Mr Stanley Uru as investigator, Legal Adviser and private lawyer Mr Jeffrey Abone of Parkil Lawyers as investigator and Private Consultant Mr Joseph Yomba. 

64.	Mr Kulumu, Mr Ubase and Mr Uru are officers within the Department and the plaintiff's subordinates. The other two are Legal Advisor and private lawyer Mr Abone and Private Consultant Mr Yomba. The plaintiff's counsel did not cite any case authority in support of his submission that the Independent Investigation Committee is not independent and impartial; hence its report of 17th August 2012 is biased. But this ground raises the fundamental question of the composition or membership of an Independent Investigation Committee. 

65.	I consider that the appointment of members of an Investigation Committee to investigate allegations of misconduct in office by a Departmental Head is a relevant consideration and the NEC must take into account when considering whether or not to suspend the Departmental Head pending investigation. I also consider that an independent Investigation Committee established under clause 26.6 of the contract of employment must comprise of persons who have no association or interest in the matters, subject of the investigation.

66.	There are good reasons for appointing an independent Investigation Committee. One that immediately comes to mind is that, it will be independent, unbiased and without any conflict of interest in the matters, subject of the investigation. The other reason is that it will prevent disharmony and dissension between the Departmental Head and his or her subordinates during and after the investigation. For example, assuming that the investigation clears the plaintiff of any wrong doing, the suspension is lifted and he resumes duties; will the plaintiff and the officers who investigated him maintain a good working relationship? Will they continue to work together? I am not sure if the answer is affirmative.

67.	I accept the plaintiff's counsel submission that serious allegations of wide spread mismanagement and abuse of power in the Department are made against the plaintiff. I have read the Investigation Report of 17th August 2012 (see Annexure "AS3" to the fifth defendants' affidavit – exhibit "D7") and am astounded by the number of allegations made against the plaintiff. Some of the allegations of mismanagement of Department's funds are the plaintiff's authorisation of substantial funds to pay services providers, such as consultancy fees for consultants, and hire car companies for use of their motor vehicles and authorisation and payment of funds from the National Task Force Social Protection Program to him-self as meeting allowances for chairing and managing the National Task Force program.

68.	The allegations of abuse of power by the plaintiff are appointment of certain officers within the Department to senior positions without following proper procedures on selection and promotion of officers in the Public Service and appointment of officers from a particular ethnic group to positions in the Department. The others are having sexual intercourse with female officers within the Department and promising female officers for promotion in return for sex. It is further alleged that these sexual allegations have led to the plaintiff's wife confronting and abusing female officers at their office during official working hours. 

69.	Some of these allegations are criminal in nature and may lead to the police laying criminal charges against the plaintiff, for example, misappropriation of public funds, conspiracy to defraud and stealing. As the plaintiff is also a Leader and subject to the Leadership Code, they may also lead to the Ombudsman Commission citing him for misconduct in office. These allegations and many others which I have not discussed due to time constrain show that any reasonable man knowing the facts of this case would no doubt agree that these are very serious allegations. 

70.	Despite this, there is no evidence from the defendants to explain why officers within the Department were appointed to investigate their own superior. I am not going to speculate here but if the intention of the NEC is to have an Independent Investigation Committee to investigate the allegations and that it is also the expressed intention of clause 26.6(b) of the contract of employment that "[i]nvestigations will be conducted by an independent committee established by the Chief Secretary under the Chair of the Secretary of the Department of Personnel Management", then the NEC has contradicted itself and allowed itself to be criticised for being part of the decision making process in appointing an Investigation Committee that is not independent and impartial. Further, the appointment of officers within the Department as members of the Investigation Committee is clearly in breach of the contract of employment.

71.	The evidence of the Chief Secretary in his affidavit (exhibit "D1") is noted and appreciated. There is no doubt in my mind that the National Government under the leadership of the Hon. Prime Minister Mr Peter O'Neill has made a stand to fight corruption and is fighting it at all levels of Government and this is one case where it is determine to fight it to the very end to expose corruption and preserve the integrity of the Institutions of State. At the same time, it is determine to ensure that Departmental Heads in charge of each State Department are performing to achieve the Government's priority key projects and not just wasting time enjoying the packs and privileges of the position. The Government should be commended for taking this position. 

72.	Thus, these are serious considerations the Court must balance; the interest of the plaintiff on the one hand and the interest of the State on the other. Public interest demands that those accused of misconduct in office should be investigated and charged if there is sufficient evidence to support the charge(s). But as I said earlier, the Court must be the problem solver and not a mere spectator and where serious breaches of the law occur in the process of exposing corrupt practices by Departmental Heads or any public officials for that matter, I consider that the Court must intervene. 

73.	The evidence of the fifth defendant that she was appointed by the NEC as the acting Departmental Head, to commission and supervise the investigation of the plaintiff is precisely the point I am making here. Clause 26.6 of the contract of employment is inexplicably clear. In my view the Investigation Committee must comprise of persons who have no association or interest in the matters which are subject of the investigation. The officers in the Department including the three officers must not be members of the Investigation Committee. They should not be in the Investigation Committee and investigating the plaintiff. They should be assisting the Investigation Committee by providing relevant information on the allegations to it. 

74.	Mr Uru as the Senior Internal Auditor is the proper person to provide information of funds allegedly misappropriated or misused by the plaintiff to the Investigation Committee. In my view this is as far as they can go in the investigation. Beyond that, it is the responsibility of the Investigation Committee to assess the information and decide whether there is sufficient basis to charge the plaintiff with serious disciplinary charge(s). The role of the Investigation Committee is an important one and it cannot be emphasised enough that it is the investigation that will decide the fate of plaintiff; whether or not he will be charged. Thus, investigation must be conducted fairly beginning with the appointment of independent members to the Investigation Committee.

75.	I consider that by directing the fifth defendant to commission an Investigation Committee comprising of officers within the Department to investigate the allegations against the plaintiff, the NEC placed the Investigation Committee in a conflict of interest position and compromised the independence and impartiality of the investigation. In my view this is a serious flaw in the decision making process which not only taints its decision with illegality but is unreasonable. It follows that the Investigation Report of 17th August 2012 is also tainted with illegality and must not stand. I uphold this ground.

Remedies

76.	There is no issue that the grant of relief is still a discretionary matter. In this instance, the Court has been invited to refuse the orders sought by the plaintiff because to reinstate him would be detrimental to good order and administration, especially where there has been a substantial delay since the NEC decision of 29th December 2011. 

77.	However, in my view the delay can be explained. This case was delayed by the numerous Court proceedings commenced by the plaintiff and the fifth defendant not only in the National Court but also in the Supreme Court. They were commenced to have the Court review the NEC decisions of 29th December 2011 and 20th August 2012. One or two were withdrawn due to issues raised concerning their competency. Subsequently, fresh proceedings were commenced. The other reason is that in an attempt to settle the dispute, parties returned to the NEC in late December last year to get the NEC to approve the Investigation Report. They did not reach an agreement. In my view both sides contributed to the delay and so I cannot hold the plaintiff wholly responsible for it.

78.	The defence submission that the lifting of the plaintiff's suspension and allowing him to resume duties will be detrimental to good order and administration ignores the fact that the fifth defendant is only acting on the position while the plaintiff is suspended. She is not the permanent holder of the position and it is wrong to suggest that she has a right to hold that position forever. If the plaintiff resumes duties, logically, she will return to her substantive position. This submission is misconceived and is dismissed.

79.	In my view the breaches in the procedure to suspend the plaintiff are serious. By, by-passing the Minister for Public Service and the Commission, that the Investigation Committee was established by the fifth defendant as directed by the NEC and not the Chief Secretary and that it was without the Commission's report on the question of suspension, the only logical inference to be drawn here is that the then Minister Hon. Andrew Mald deliberately circumvented the due process, without good cause. In my view a Court of equity should not allow the defendants to stand to gain from this illegal act or allow the illegal act to continue. In the exercise of my equitable discretion, I grant the relief sought by the plaintiff.

Conclusion

80.	It is clear that the defendants did not follow the procedure prescribed by the Constitution, Statute and contract of employment to suspend the plaintiff pending investigation. The Commission unreservedly concedes this but the rest of the defendants took a different position which has contributed to the delay in concluding these proceedings and the dispute. As the Commission concedes, it should not bear the costs of the proceedings. It will be the rest of the defendants who will pay the plaintiff's costs of the proceedings and I so order.

Order

81.	The orders are:

(a)	The application for judicial review is upheld.

(b)	An order in the nature of a declaration that the decision of the National Executive Council of 29th December 2011 and gazetted on 11th January 2012 suspending the plaintiff as Departmental Head of the Department of Community Development and appointing the fifth defendant as acting Departmental Head is illegal, null and void.

(c)	An order in the nature of a declaration that the decision of the National Executive Council of 29th December 2011 and gazetted on 11th January 2012 suspending the plaintiff as Departmental Head of the Department of Community Development and appointing the fifth defendant as acting Departmental Head is unreasonable.

(d)	An order in the nature of a declaration that the Investigation Report by the Investigation Committee dated 17th August 2012 containing the findings of the investigation into the allegations against the plaintiff is illegal, null and void.

(e)	An order in the nature of certiorari bringing into this Court and quashing the decision of the National Executive Council of 29th December 2011 and gazetted on 11th January 2012 to suspend the plaintiff as Departmental Head of the Department of Community Development and appoint the fifth defendant as acting Departmental Head.

(f)	An order in the nature of certiorari bringing into this Court and quashing the Investigation Report by the Investigation Committee dated 17th August 2012 containing the findings of the investigation into the allegations against the plaintiff.

(g)	An order in the nature of mandamus compelling the defendants to reinstate the plaintiff as Departmental Head of the Department of Community Development and the fifth defendant returned to her substantive position forthwith. 

(h)	The first, third, fourth, fifth, sixth and seventh defendants shall pay the plaintiff's costs of these proceedings to be taxed, if not agreed. 

(i)	Time is abridged.
_______________________________________________________________

B S Lai Lawyers: Lawyers for the Plaintiff
Baniyamai Lawyers: Lawyers for the First, Third - Seventh Defendants 
PSC Legal Officer : Lawyers for the Second Defendant