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Lara v Samy [2022] PGNC 175; N9613 (5 May 2022)

N9602

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS(JR) NO. 901 OF 2019

BETWEEN:
WAPSON LARA
Plaintiff

AND:
BR. ANTHONY SAMY, Principal De La Salle Secondary School
First Defendant

AND:
SAM LORA, Assistant Secretary NCD, Education Services
Second Defendant

AND:
MR. KIRI, Appointments Officer NCD, Education Services
Third Defendant

AND:
TEACHING SERVICES COMMISSION
Fourth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Dingake J
2022: 14^th February, 16^th March, 01^st & 20^th April, 5^th May

JUDICIAL REVIEW - Review of decision to refuse a teacher to complete a resumption form – grounds of review – breach of natural justice and Wednesbury unreasonable ness – Application – upheld.

Case Cited:

Innovest Ltd v Hon Patrick Pruaitch [2014] PGNC 288; N5949
Mision Asiki v Manasupe Zurenuoc (2005) SC797

Counsel:

Mr. Lawrence Giyomwanauri & Ms. K Wakapura, for the Plaintiff
Mr. Max Tukuliya, for the Fifth Defendant

05^th May, 2022

1. DINGAKE J: This is judgment on an application for judicial review brought by Wapson Lara, the Plaintiff, who was at all material times hereto a teacher at De La Salle Secondary School.
   
2. The Plaintiff seeks to review the decision of the First Defendant taken on or about the 21^st of January 2019, refusing him to complete a Resumption Form, that would have enabled him to commence teaching as required for the 2019 academic year. He has also cited the Second, Third and Fourth Defendants for failing to comply with directions to reinstate him to the teaching service.
   
3. The material facts that underpin this judicial review application are not in dispute and are clearly captured in the Statement of Agreed and Disputed Facts and Legal Issues signed by the parties’ Lawyers save for the First Defendant’s lawyer.
   
4. The Plaintiff was appointed a teacher in 2010, and prior to these events, the subject matter of this review proceedings, that effectively terminated his employment as a teacher, he had served the Teaching Service for about nine (9) years.
   
5. On or about the 21^st of January 2019, the Plaintiff was refused to sign the Resumption Form by the First Defendant. Without such form being signed he could not commence his teaching duties for the academic year 2019.
   
6. No reasons for the decision were given to the Plaintiff and no disciplinary proceedings against the Plaintiff for anything that he could have done or omitted to do were undertaken. No hearing of any form was afforded to him.
   
7. Following the refusal by the First Defendant to enable the Plaintiff to sign the Resumption Form and to commence his duties as a teacher, his salary, for pay period 7 of 2019, was suspended and since then he has not been paid any salary.
   
8. It is common cause that various directions by the Teaching Service Commission (TSC) the Plaintiff’s employer, the National Department of Education (NDOE) on various dates in the course of 2019, directing the National Capital District Education Board to re-appoint the Plaintiff and the Principal to allow the Plaintiff to commence his duties as a teacher were simply ignored.
   
9. In short, this is the story of how the livelihood of a teacher, who had served the teaching service for nine (9) years was imperilled. It is also the story of how the authority of the Teaching Service Commission (TSC), the Plaintiff’s employer was flouted, apparently without consequence.
   
10. The only issue to be determined by this Court is whether the Plaintiff employment as a teacher was unlawfully terminated, and if so whether he should be reinstated and paid back his lost salaries and entitlements.
    
11. The Solicitor General representing, the Second, Third, Fourth and Fifth Defendants are opposed to the relief sought and it would seem on a technical point. Mr. Tukuliya learned Counsel representing the Second, Third, Fourth and Fifth Defendants, argued that the decision(s) sought to be challenged are not specified with clarity and that the date, the decision complained of was taken is not stated in the amended Originating Summons, and for his submission he sought refuge under the authority of Innovest Ltd v Hon Patrick Pruaitch (2014) PGNC 288 N5949.
    
12. I do not find that there is any merit in the point raised by Mr. Tukuliya. I am clear in my mind that the judicial review papers served on the Second, Third, Fourth and Fifth Defendants made clear what case they had to meet, and they were not confused as to what they had to answer before this Court.
    
13. Although, the amended Originating Summons did not indicate when the decision sought to be reviewed was taken, the supporting Affidavit for the Judicial Review did. The supporting Affidavit made it clear that the decision at the heart of the Judicial Review was the decision of the First Defendant taken on or about the 21^st of January, 2019.
    
14. Significantly, the Statement of Agreed and Disputed Facts and Legal Issues for trial at paragraph 6 stipulates the date of decision sought to be reviewed. The Defendants cannot credibly complain of any prejudice.
    
15. This Court is oath bound to do justice to the parties and having regard to the circumstances of this case, where the complaint of the Plaintiff and the issues it raised as evidenced by the signed Statement of Agreed and Disputed Facts and Legal Issues for trial, filed of record, were clear, to uphold Mr. Tukuliya’s argument would be a travesty of justice.
    
16. With respect to the main issue, as to whether the decision of the First Respondent refusing to allow the Plaintiff to sign a Resumption Form, was lawful or not, the answer is that the decision of the First Defendant was unlawful on many grounds. Firstly, no reasons were given for the decision. Secondly, no disciplinary proceedings were instituted against the Plaintiff. The decision was breathtaking in its defiance or breach of natural justice, and it cannot be lawful.
    
17. Additionally, it is also unreasonable to take such grave decision impacting adversely on the livelihood of an employee without a reason. This too will render the decision unlawful.
    
18. Having found that the decision of the First Defendant was unlawful, the next question is what relief should be granted.
    
19. The Plaintiff prays that he be reinstated and be given his back pays.
    
20. It is trite learning, that in judicial review proceedings the remedies to be granted are at the discretion of the Court and a lot depends on the circumstances of each case (Mision Asiki v Manasupe Zurenuoc (2005) SC 797).
    
21. In this case, the Plaintiff seeks an order in the nature of certiorari to quash the decision of the First Defendant in refusing him to complete the Resumption Form on the 21^st day of January 2019, a Mandamus Order requiring the First, Second, Third Defendants to reinstate him to his substantive position as a teacher at De La Salle Secondary School and for back pay and other emoluments lost by being unlawfully dismissed from the date of dismissal to date of reinstatement.
    
22. I have no hesitation in granting the relief sought. The Plaintiff was treated by the First Defendant and Third Defendant in the most unfair manner, notwithstanding his nine (9) years of service. The entire process was gravely unfair, unlawful and unreasonable. The Teaching Service appeared unable to come to the aid of a teacher to enforce its decision. This case cries out for reinstatement.
    
23. With respect to the Plaintiff’s prayer for back pays, it should be noted that, the mere finding or conclusion by the Court that the dismissal was unlawful, does not automatically translate into an order for back pays, namely the payment for salary and other emoluments lost in the period since dismissal. Each case will turn on its circumstances.
    
24. In this case, I have found that the Plaintiff was treated in the most unfair manner. He was dismissed for no known reason; he was not afforded a fair hearing. He could have returned to work soon after the decision of the First Defendant refusing him to complete the Resumption Form, but all directives to get him back to work were flagrantly ignored or disregarded and the Teaching Service lay supine and did nothing to enforce its authority against the First Defendant. It is these circumstances, that justify the payment of back pays to the Plaintiff.
    
25. In his extract of submissions, the Public Solicitor, on behalf of the Plaintiff, prays for damages for frustration, humiliation, inconvenience and suffering. I have found no basis to award any damages as prayed by the Plaintiff; and whilst they may well be a case for such damages, the Order of reinstatement and back pays, is on balance, adequate.
    
26. In the result, I grant the application for Judicial Review and direct entry of Judgment in the following terms:
    
    • (a) An Order in the nature of certiorari, pursuant to Order 16 Rule 1(1) of the National Court Rules, to remove into this Court and quash the decision of the First Defendant in refusing the Applicant from completing the resumption form on the 21^st day of January 2019, to commence duties for 2019 academic year.
    • (b) An Order in the nature of mandamus, pursuant to Order 16 Rule 1(1) of the National Court Rules, requiring the First, Second and Third Defendants to reinstate the Applicant to his substantive position as a teacher at De La Salle Secondary School; and
    • (c) An Order in the nature of mandamus, pursuant to Order 16 Rule 1(1) of the National Court Rules, requiring the Defendants to pay “back-pay” and other emoluments lost by being unlawfully dismissed from the date of dismissal to the date of reinstatement.
    • (d) The State must pay to the Plaintiff a sum of money equal to salary and emoluments, less tax, payable in respect of the position he held in the period from the date he was removed from the payroll to the date of his reinstatement.
      
27. The matter with respect to the assessment of that sum (referred to in 26 (d) above) shall be heard on a date to be fixed by the Court in due course.
    
28. This matter is enlisted for directions hearing to determine the date referred to in paragraph 27 above, on the 9^th of May 2022,
    
29. Costs of these proceedings are to be paid by the Defendants on a party to party basis, to be taxed, if not agreed.
    
30. The time for entry of these Orders be abridged to the date of settlement by the Registrar, which shall take place forthwith.
    

_______________________________________________________________
Office of the Public Solicitor: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendant