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Pawut v Kereme [2019] PGNC 62; N7792 (5 April 2019)

N7792
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 943 OF 2018

BETWEEN
LAMILLER PAWUT
As Provincial Administrator of New Ireland Provincial Administration
First Plaintiff

AND
NEW IRELAND PROVINCIAL ADMINISTRATION
Second Plaintiff

AND
DR PHILIP KEREME – As Chairman of Public Service Commission
First Defendant

AND
SEVERIN MELENGAS
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2019: 2^nd & 5^th April

JUDICIAL REVIEW – Application for leave for judicial review – Leave sought to review finding by the Public Service Commission on breach of natural justice – Finding that dismissal of officer by Departmental Head was done without service of disciplinary charges – Whether evidence supported finding by Departmental Head that disciplinary charges were served – Lack of – No arguable case established – Leave refused

JUDICIAL REVIEW – Role of Court in judicial review – Supervisory and not a Court of appeal – Exercise of discretion confined to matters raised and considered by subordinate decision-making authority

Cases Cited:

Kekedo v. Burns Philip (PNG) Limited [1988-89] PNGLR 122

Counsel:
Mr. J. Wiai, for the Plaintiffs
Mr. N. Yano, for the First and Third Defendants
Second Defendant in person

RULING

5^th April, 2019
1. MAKAIL, J: This is an application for leave for judicial review of the decision of the first defendant (“PSC”) to recommend to the plaintiffs to reinstate the second defendant to the position of Manager, Law and Order within the administration of the second plaintiff. This decision was made on 6^th November 2018 and by virtue of Section 18(6)(e) of the Public Service (Management) Act, will be binding after 30 days and must be implemented by the plaintiffs. It was preceded by an appeal by the second defendant to the PSC after he was found guilty and dismissed from employment by the plaintiffs on 24^th July 2017 for participating in two illegal protests against the administration of the plaintiffs. The first was in relation to his involvement in petitioning the plaintiffs concerning issues affecting public servants in the New Ireland Province on 8^th December 2016 and the second was in relation to a protest march on 3^rd February 2017. At all material times the second defendant was employed under a contract of employment which has since expired.

2. There is no contest and I accept that the plaintiffs have the requisite standing to seek judicial review, they being the immediate past superiors and employing agency of the second defendant and are being aggrieved by the decision of the PSC to recommend the reinstatement of the second defendant to his former position in the second plaintiff’s administrative structure after his dismissal. Similarly, I accept that the application for leave was made promptly and there is no delay, it having being filed in December 2018 a month after the subject decision was made. Further, there is no alternative remedy by which the plaintiffs may seek redress, noting that the PSC having made a decision, was the ultimate and final authority on personnel matters affecting public servants including the second defendant and that the only remedy available is to seek judicial review.

3. The contest, however, is in relation to an arguable case. The PSC found that the plaintiffs did not afford the second defendant the right to be heard prior to finding him guilty and dismissing him from employment. He was, thus, denied natural justice when the plaintiffs did not serve the notice of suspension and most importantly, the disciplinary charges. Consequently, he was unable to respond to them and it was wrong for the plaintiffs to then proceed to determine the disciplinary charges without hearing him in his defence.

4. The plaintiffs contended that the finding was contrary to the evidence they produced at the PSC which was sufficient to establish that they served the notice of suspension and disciplinary charges on the second defendant but the latter refused to accept them, not once but twice, and he has himself to be blamed for his predicament. According to their counsel, it was Mr. Ivan Lakatani who served these documents on the second defendant on 6^th April 2017 but he refused to accept them. Mr. Lakatani has produced a report by the Disciplinary Committee to verify that service was effected.
5. The PSC stood its ground that the evidence on service was lacking and it was open to it to infer that the plaintiffs did not serve the notice of suspension and disciplinary charges on the second defendant. Consequently, the second defendant did not have the benefit of the charges to respond to them and was denied natural justice. The second defendant argued that at no time did Mr Lakatani meet and serve on him the notice of suspension and disciplinary charges.

6. The plaintiffs’ contention suggests that they attempted service of the second defendant and he was being difficult. But the issue here as well as before the PSC was not whether the second defendant was being difficult. It was whether there was evidence to prove service of the said documents on him. I have considered the evidence placed before the PSC on this issue and make these observations. At the PSC hearing the second defendant was adamant that he was not served the notice of suspension and disciplinary charges. This is clearly borne out in his statement at para. B)(ii) that:

“I have never received any charge or suspension notice at any time at all........”

7. He repeated it to emphasise the plaintiffs’ duty to comply with this requirement at para. B)(vi) where he stated:

“I was never served a suspension notice or charge........”

8. Again, at para. E)(1) he stated:

“As far as I am concern I have not been formerly Charge (sic) and have not provided any defence to the Charge.”

9. The first plaintiff provided a statement to refute the assertion made by the second defendant. The statement focussed on the process of consultation with the Secretary of the Department of Personnel Management (“DPM”) and the details of the second defendant’s involvement in the protests and overlooked the critical part on service of the notice of suspension and importantly, disciplinary charges. The report by Mr. Lakani’s Disciplinary Committee was tendered. Para. 5.2 at page 4 of the report gave a vague and broad description of how the notice of suspension and disciplinary charges were served on the second defendant in this way:

“The Disciplinary Committee noted that Mr Melengas refused to accept the suspension and discipline (sic) charges notices on 6^th April 2017.”

10. However, what is missing is the name of the person who served the notice of suspension and disciplinary charges, place where he served them, date and time he served them. These are material and vital details that are missing from the report and overall, the evidence of the plaintiffs at the PSC.

11. The role of the Court in judicial review is supervisory in nature. It is not a Court of appeal where it may permit and/or consider the evidence or a matter afresh and substitute its own decision: Kekedo v. Burns Philip (PNG) Limited [1988-89] PNGLR 122. The exercise of its supervisory jurisdiction is confined to matters raised and considered by the subordinate authority and will be exercised in cases where the subordinate authority has acted in excess of its jurisdiction, committed an error of law, abused its power or acted unreasonably: Kekedo v. Burns Philip (PNG) Limited (supra).

12. In this case while the first plaintiff was possessed with the requisite power to suspend and charge the second defendant for disciplinary offences, he must observe the requirement to serve the disciplinary charges on the second defendant. The requirement to serve disciplinary charges cannot be overstated. It is the foundation of the entire disciplinary process because it is the beginning of the process whereby a finding of guilt or otherwise is dependent upon and at the end of the process. Where disciplinary charges are served, the recipient is expected to respond to them. He or she may decide not to but the requirement to serve has been satisfied. Where they are not, a fundamental breach in the disciplinary process will occur. The intended recipient will not have the benefit of knowing the nature of the disciplinary charges and it would be quite unfair to expect that person to respond to them. That is why the principles of natural justice require that a public official exercising disciplinary powers such as the first plaintiff must accord the officer, in this case, the second defendant the right to be heard by serving the disciplinary charges on him. This requirement may be stipulated in a contract of employment or statute and must be complied with by the disciplinary body or officer.

13. The PSC found that the first plaintiff failed to serve the notice of suspension and disciplinary charges on the second defendant, thereby denying the second defendant natural justice. It held that he failed to observed procedural fairness and in the words of the PSC at para. 4.1 on page 3 of its decision “So, it is confirmed that there is procedural error in terminating Mr Melengas without being charged or suspended and in denying him the right to be heard.”

14. The evidence of the plaintiffs before the PSC does not support the plaintiffs’ assertion that this procedural requirement was satisfied because it failed to identify where, when and who served the disciplinary charges on the second defendant. For this reason, I am not satisfied that it is arguable that on the evidence it was not open to the PSC to find that the plaintiffs failed to accord the second defendant natural justice. The other grounds which the plaintiffs contended raised arguable points for further consideration were the failure by the PSC to take into account and find that the second defendant’s contract of employment had expired and that there was overwhelming evidence against the second defendant that he was involved in the illegal protests and was not denied by him are inconsequential.

15. The application for leave will be refused on this basis with costs.
Ruling and orders accordingly.

________________________________________________________________
Kara Lawyers: Lawyers for the Plaintiffs
In house counsel: Lawyers for the First & Third Defendants