IN THE EMPLOYMENT
TRIBUNAL AT SUVA

ERT Grievance No. 52 of 2009

BETWEEN:

MR. NILESH MAHARAJ
GRIEVER

AND:

PUBLIC SERVICE COMMISSION
EMPLOYER

Appearances:
Mr. D. Nair for the Griever
Mr. A. Kunawawa for the Employer
______________________________________________________________________________
DETERMINATION OF THE TRIBUNAL
______________________________________________________________________________

The Employment Relationship Problem:

[1] The decision of the Public Service Commission (PSC) made on 12/06/09 to terminate the griever Mr. Nilesh Maharaj's employment from 11/06/09 which was unfair, wrongful and in breach of the principles of natural justice

Background and Evidence:

[2] The PSC in its submission provided the Tribunal with the chronology of events that shows Mr. Maharaj involvement in two incidents, the first one when he was Acting Assistant District Officer Savusavu, it was alleged that on 04/04/08 he forged the signatures of three witnesses for the Nakama Evacuation Project and the Vuniwai Village Economic Project. Subsequent to this Mr. Maharaj was suspended without pay by the Ministry from 17/06/08.

[3] On 7/08/08 the PSC on request from Mr. Maharaj approved the payment of 50% salary pending the outcome of his disciplinary case.

[4] The second incident is about the unlawful removal of ANZ cheque No. 001166 and the forgery of signatures on the cheque to withdraw $3,800 by Mr. Maharaj. This was reported to the Permanent Secretary for Provincial Development and Multi Ethnic Affairs on 05/06/08.

[5] On 06/06/08 Mr. Maharaj in a written statement admitted uplifting the cheque and attempting to withdraw the amount of $3,800 from the bank account belonging to Savusavu Multi – Cultural Centre and apologized for his action.

[6] On 10/06/08, Mr. Maharaj changed his statement alleging that his wife Mrs. Sangeeta Maharaj had uplifted the cheque leaf and was responsible in attempting to cash the cheque. Mrs. Maharaj confessed in a letter to the Permanent Secretary for Provincial Development dated 10th June 2008.

[7] Following an investigation, Mr. Maharaj was charged by the Ministry on 04/12/08 for breaching the Public Service Code of Conduct under the Public Service Act, 1999. In his response to the charges, Mr. Maharaj categorically denied charges 1 – 7 and for charges 8 – 12, he maintained that he was not responsible for the loss of cheque and he should not be blamed for the matter.

[8] The PSC was advised on the case on 03/03/09 that Mr. Maharaj had already admitted in writing to the Chairman of the Savusavu Cultural Centre of his apology for his wrong doing by uplifting the cheque from the cheque book and personally admitted writing the amount on it. The PSC was advised that Mr. Maharaj actions reflected badly on the Ministry and the PSC as a whole.

[9] The PSC was further advised that with the various statements and reports on hand, Mr. Maharaj's actions involving the two incidents were very serious and for which he must be disciplined for his actions. Following those submissions the PSC decided to hear the case in Labasa on 30/04/08. 

[10] On 12/06/09, the PSC by a letter, officially advised Mr. Maharaj of the Commission's decision to terminate him from the service with effect from 11/06/09.

[11] Mr. Pratap Chand the Chairman of the Savusavu Cultural Centre in his evidence told the Tribunal that he did not see Mr. Maharaj opening his bag or taking out the cheque and that they were having Kava together. Mr. Chand admitted that Mr. Maharaj was writing the admission that he had removed the cheque and attempted to cash it while they were together having kava in his house. The witness further told the Tribunal that the griever and his wife are well known to him and that he is not aware of the outcome of the Police investigation.

[12] Ms. Chandramma, the Administrator of the Savusavu Cultural Centre in her evidence stated that she was a witness in the PSC disciplinary hearing and that Mr. Maharaj was not given an opportunity to cross examine her. She further stated that she was not aware of how the cheque leaf was stolen from the custody of Mr. Pratap Chand and that she is not aware of the outcome of Police investigation.

[13] Mr. George Dregaso, the Acting District Officer Bua gave evidence that he was Acting Assistant District Officer Savusavu on 04/04/08 when Mr. Maharaj was assigned to witness the opening of quotation boxes for self help projects which was part of his duties. He told the Tribunal that Mr. Maharaj forged his signature but under cross examination confirmed that the griever had signed on his behalf on a document that was intended for the introduction of a system within the office of the griever. Mr. Dregaso further told the Tribunal that there was no documentary evidence to support his statement that his signature had been forged.

[14] Mr. Maharaj in his evidence testified that he did not remove the cheque leaf or attempted to forge the same. When the issue was first raised and brought to his attention, he became aware that his wife was responsible and only to save her and their marriage, as they had two children, he discussed this matter with Mr. Chand who advised him to just admit it and he will file the complaint as closed. This discussion was held at Mr. Chand's house and the admission letter was written in Mr. Chand's house by his daughter-in-law, whilst they were having kava.

There was a Police investigation and the griever's wife was charged by the Police and found guilty. She was convicted.

On the allegation of forging the signature of Mr. Dregaso, the griever stated that he did not forge any person's signature but merely signed on their behalf and the system of streamlining the process of inviting internal tenders was his initiative and which was on trial.

Analysis and Conclusion

[15] The Tribunal will restrict its findings to the grievance as reported by Mr. Maharaj which deals with wrongful and unfair dismissal and in breach of natural justice. 

[16] The Tribunal will not try to re-discover the procedures used in the disciplinary hearing of this matter but will ask the question whether Mr. Maharaj was given the due process. On the allegations of forgery of signatures, the Tribunal is asking whether Mr. Dregaso and Mr. Waisake were asked to confirm that they called Mr. Maharaj to sign of their behalf. That is very important as Mr. Dregaso in evidence has testified that he asked Mr. Maharaj to sign on his behalf and whether Mr. Maharaj was given an opportunity to explain is not known.

[17] On the stolen cheque, Mr. Maharaj testified that he did not do it and that is proved by the fact that his wife has been investigated, charged and convicted for the offence. Where does that leave Mr. Maharaj?

[18] This is where Mr. Pratap Chand comes in. He is central to the whole case and the Tribunal believes the account given by Mr. Maharaj that he was told to do a written confession by Mr. Chand, and Mr. Chand would file it away and this was during their usual evening kava session. On that particular evening Mr. Chand's daughter in law was writing the confession letter. In his evidence, Mr. Chand did not deny this. 

[19] There was a disciplinary hearing and the date and time did not come out in evidence apart from the evidence of Ms. Chandramma who confirmed that Mr. Maharaj was not given an opportunity to cross examine her during the hearing. Similarly, Mr. Dregaso under cross examination confirmed that there was no documentary evidence to support his statement that his signature had been forged.

[20] From the evidence and submission made the Tribunal is satisfied that Mr. Maharaj was not accorded the due process as he was denied the rights to cross examine the witnesses who testified before the PSC and the opportunity to give his account of what happened.

[21] The Tribunal has also noted the time taken to investigate, charge and terminate Mr. Maharaj as the complete package took almost one year. The exercise has drawn on the resources of the Ministry, the PSC, Mr. Maharaj and his family and all these could have been avoided if in the first instance the disciplinary and grievance procedure was adhered to. What has happened has put the PSC at risk of breaching the three month time frame allowed in PSC Circular No. 18 of 2007.

[22] Definitely Mr. Maharaj's livelihood has been adversely affected and this puts into context the ruling of the Court of Appeal in the case of PSC v Lepani Matea (CA 16/98) where it was upheld that -

"The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilized legal system that it is presumed that the legislative body intended that a failure to observe it would render the decision null and void."

[23] In another Fiji Court of Appeal case: Permanent Secretary for Public Service Commission v Epeli Lagiloa IABU 21/96 – fca Reps 97/578 at p.16 it was upheld that "a public servant must be given an opportunity to be heard both as to guilt and as to penalty."

[24]From the foregoing, the Tribunal rules that Mr. Maharaj has a grievance of wrongful and unfair dismissal and in that regard orders the following remedy under section 230 of the Employment Relations Promulgation 2007 – 

 (i) Mr. Maharaj to be reinstated without loss of benefits and 

 (ii) the period of absence to be treated as leave without pay.

DATED at Suva this 6th day of April, 2011

Sainivalati Kuruduadua
Chief Tribunal