State v Public Service Commission, Ex parte Ram [1993] FJHC 69; Hbj0004j.1991s (20 August 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
REVISIONAL JURISDICTION

JUDICIAL REVIEW NO. 4 OF 1991

BETWEEN:

STATE

v.

PUBLIC SERVICE COMMISSION

EX-PARTE: SURUJ RAM

Mr. Ram Chand: For the Applicant
Mr. S. Afolabi and Mr. A. Cope: For the Respondent

Dates of Hearing: 24th, 25th, 26th July, 26th September,
30th October, 1991, 19th, 20th 21st and
24th February, 16th March and 18th November 1992
Date of Judgment: 20th August 1993

JUDGMENT

Although the hearing of this case was extremely long by the standards of normal applications for judicial review and although the transcript of evidence extends to 357 pages and the written submissions by counsel to a further 23 pages the legal issue to be decided by the Court is simple, namely, whether the Court is justified in quashing a decision made by the Respondent to dismiss the Applicant from its employment on the 26th of September 1990 on the ground that that decision was unnecessarily harsh and unfair in the circumstances.

Until his dismissal by the Respondent the Applicant had been employed by the Respondent for approximately twenty years as a Draftsman holding the rank of Technical Officer I whose duties were to counter-check survey plans which had first been checked by his subordinates. For the whole of his employment until the events which gave rise to his dismissal the Applicant had been held in high regard by the Respondent and trusted by its senior officers. He was respected for his experience on matters relating to computing office procedures and systems in the Department of Lands where he was employed.

On the 5th of July 1990, according to the Respondent, that trust was misplaced when the Applicant allegedly committed four serious mistakes as a result of which he was subsequently dismissed.

The four mistakes became the subject of four charges under Regulation 35 of the Public Service Commission Regulations, 1987 which may be summarised as follows:

(a) That he submitted a Survey Plan namely S.O.2555 on 5th July 1990 to the Assistant Director of Surveys and advised the Assistant Director that the Survey was in order for approval as to survey, when he was aware that the plan had a number of errors and omissions in it and was to be returned to a Surveyor Eqbal Mohammed for the necessary amendments.

(b) That being a Technical Officer Class I he submitted a Survey Plan namely D.P.6845 on 5th July 1990 to the Assistant Director of Surveys and advised him that the Survey Plan was in order for approval as to survey, when he was aware that the plan had a number of errors and omissions in it and was to be returned to the Surveyor Eqbal Mohammed for the necessary amendments.

(c) That on or about the 5th of July 1990 he amended some of the requisitions on Plan S.O.2555 without approval, and had it approved as to survey when he had been instructed that the Plan was to be returned to the Surveyor Eqbal Mohammed on General Requisition.

(d) That on or about the 5th of July 1990 he removed two draft requisition orders from the Plan S.O.2555 and disposed of them in a rubbish bin.

In accordance with Regulation 40(2) of the Fiji Service Commission and Public Service Service (Amendment) Decree 1987 No.10 the Applicant was given notice in writing to state in writing within a reasonable time, in this case 14 days, whether he admitted or denied the charges.

On 21st of August 1990 the Applicant replied to the charges giving his explanations and comments on each of them. As to the first charge he stated that he had submitted Plan S.O.2555 to the Assistant Director of Surveys for approval because he was of the opinion that it contained no errors or omissions and that any amendments that had been made to it were not made by the Applicant but by the Surveyor concerned.

On the second charge the Applicant also stated that when Plan D.P.6845 was submitted to the Assistant Director of Surveys it was also in the Applicant's opinion in order without errors or omissions. It had been sent on Requisition and when re-submitted was re-examined and only when found correct was then submitted to the Assistant Director of Surveys for approval.

As to count three the Applicant said that he was "totally shocked" at the charge as he could not recall ever having disobeyed official instructions. He said there was no reason for him to do all the amendments to Plan S.O.2555 himself. All such amendments were of clerical errors only and consequently a written requisition was not issued. He said that this was in accordance with the practice of his predecessors and was known to all the plan examination staff.

On the 4th charge the Applicant stated that he had not disposed of two draft requisition orders but only the working sheets and the working plan copy.

Before charging the Applicant the Respondent had taken statements from three of its employees, first from Mr. Mohammed Jaffar the Assistant Director of Surveys, the second from Mr. D.P. Singh the Senior Technical Officer (Computing) who was the Applicant's immediate superior, and the third from a Laisa Raratabu a Technical Officer I (Computing) who shared checking of plans with the Applicant. Mrs. Raratabu reported the Applicant for putting the two draft requisition orders from Plan S.O.2555 in a rubbish bin because she said she was concerned to see that all staff behaved honestly and she believed the Applicant had not.

Mr. D.P. Singh reported the Applicant for not sending the two Plans S.O.2555 and D.P. 6845 on general requisition to the Surveyor for amendment before they were submitted for approval.

Mr. Mohammed Jaffar had approved the two plans in the belief that the Applicant had first complied with all necessary procedures.

In an affidavit sworn by Mr. Jaffar for these proceedings on 24th of May 1991 he accused the Applicant of unethical and dishonest conduct in relation to these two plans.

Having received the Applicant's reply and explanation to the charges the Applicant was asked to attend a meeting on the 3rd of September 1990 at the Lands Department at which the Director of Lands and Surveyor-General, a Mr. A. Queet, Mr. M. Jaffar and Mr. D.P. Singh were also present. A Minute was taken of this meeting by Mr. Jaffar which subsequently became the subject of cross-examination by the Applicant and which I shall mention later.

Because the right of appeal to the Public Service Appeals Board had been abolished by the Fiji Service Commission Decree 1988 the only remedy the Applicant had by which he might overturn the decision to dismiss him was by judicial review. He has filed numerous grounds which I may summarise as follows:

(1) Failing to take into account the objections and explanations made by the Applicant's solicitors or his Union the Fiji Public Service Assoication.

(2) Abusing the discretion vested in the Respondent by dismissing the Applicant.

(3) Dismissing the Applicant when there was no evidence to justify this.

(4) Failing to take into account that at the relevant time there was no written instruction directing staff to follow set procedures when examining plans.

(5) Failing to recognise that the Applicant's actions were in accordance with the practice existing in the Department.

(6) Denying the Applicant an opportunity to be heard personally except by writing to explain or clarify the charges against him.

(7) Failing to take into consideration the Applicant's twenty years' service and special computer experience with the Department.

The Applicant accordingly requested that Certiorari should run to quash the decision to dismiss him. I do not propose to discuss in detail the evidence given during the hearing. Only three witnesses were called, two on behalf of the Applicant being the Applicant himself and a Mr. Edmund Chang a Surveyor of considerable experience and Mr. Mohammed Jaffar on behalf of the Respondent. The Applicant maintained throughout that that there was an element of flexibility in the work system of the Respondent which permitted him to disobey the instructions given to him to send Plan S.O.2555 on General Requisition in the case of an emergency which he claimed existed on the 5th of July 1990. The Respondent through Mr. Jaffar admitted that in some cases flexibility was practised where for example errors detected in surveys were minor and these could be corrected by the Department itself but this did not apply to matters such as those on which the Applicant was charged. He admitted that there was a general directive that where any plan contained more than twenty requisitions it had to be sent on General Requisition but stated that two Plans Nos. S.O.2723 and S.O.382 had more than twenty requisitions but had not been sent on General Requisition. The Respondent denied that in 1990 any member of its staff was authorised to answer requisitions but this was permitted only to the Assistant Director of Surveys and the Director of Lands.

Here it should be mentioned that a general requisition requires the Surveyor to check and rectify his or her own work in toto whereas specific requisitions would direct the Surveyor in writing to the exact point needing clarification or rectification. The purpose of General Requisition was to endeavour to ensure that the Surveyor perform his work all over again without knowing particular matters which required alteration or re-checking.

Mr. Mohammed Jaffar stated that it was a strict rule of practice that any plan had to go first to the Senior Technical Officer Computing (S.T.O.C.) before coming to Mr. Jaffar for approval and that when S.T.O.C. gave instructions that the Plan should go on General Requisition the Applicant should have prepared a General Requisition form and brought it to Mr. Jaffar for signature.

He also stated that he had not come across a similar case in all his twenty-six and a half years' experience in the Department and that from the numerous errors on Plan S.O.2555 he disagreed with the Applicant's claim that the errors on it were minor. He said that the Applicant was experienced enough to know the difference between a serious or major mistake and a minor mistake. He also said that the type of instruction the Department received on this occasion was so serious that the Plan had to go back to the Surveyor and could not be amended in the Department's office. Any Plan which went on General Requisition had not been checked.

In the case of Mr. Edmund Chang, who stated in evidence that he knew of one survey plan No.S.O.314 which contained about thirty-three requisitions yet the plan had not been sent on General Requisition, the errors were not as serious as those on Plan S.O.2555 and there was no clear instruction to send Mr. Chang's Plan on General Requisition. (See transcript of evidence 20/2/92, page 54.)

Also on the subject of General Requisition Mr. Jaffar stated at page 55 of the transcript of the 20th February 1992 that if a plan was checked only half way and numerous errors were identified the Department would stop checking and return the plan to the Surveyor on General Requisition. He re-emphasised what he had said just before this by agreeing to a question I put to him that the difference between the cases of the Applicant and Mr. Edmund Chang was that clear instruction had been given to the Applicant in respect of his plan and not in respect of Mr. Chang's plan.

Mr. Jaffar also stated that the reason why the Department had convened the meeting of the 3rd September 1990 was because it was not satisfied with the Applicant's explanation of the 21st of August 1990. At the meeting Mr. Jaffar claimed that the Applicant did not say that the Surveyor had amended the plan whereas in his explanation he had stated the Surveyor had. In the light of this contradiction, which the Applicant stead-fastly denied, Mr. Jaffar said that the Department was compelled to take further action against the Applicant.

When cross-examined as to the accuracy of his Minutes of the meeting of the 3rd of September on this point Mr. Jaffar was not shaken in his claim that his Minutes were accurate and that the Applicant had not said that there too, the amendment had been made by the Surveyor, Eqbal Mohammed.

Having observed both the Applicant and Mr. Jaffar over a considerable period as they gave their evidence I prefer Mr. Jaffar's evidence on this point to that of the Applicant.

I turn now to the submissions of counsel. The Applicant first criticises the Respondent for accepting the statements of Laisa Raratabu and D.P. Singh and Mr. Jaffar as being grossly unfair and unreasonable, if not biased but also grossly incriminating and prejudging the Applicant's guilt and dishonesty. The first two persons were not called by the Respondent and so were not cross-examined but Mr. Jaffar was cross-examined at length by counsel for the Applicant. The statement of Mrs. Raratabu does not impress me, particularly for her declaration, written in bold type, that "honesty is the best policy". However I remind myself that my function is not to substitute my own opinion of a statement made to the Respondent unless the Respondent's acceptance of it is patently unreasonable. For the Applicant there is no evidence of any bad faith on the part of Mrs. Raratabu or Mr. Singh or Mr. Jaffar and consequently I am not prepared to find that they were biased against the Applicant.

Indeed my observations of Mr. Jaffar persuade me that he gave his evidence as objectively, accurately and sympathetically towards the Applicant as was possible. He stated that if the decision had been his only he would not have dismissed the Applicant. But again I remind myself that this was the view only of Mr. Jaffar and that unless it would be patently unreasonable for me to so find, I should not hold that the Commission's decision to dismiss the Applicant was wrong and should be quashed.

It is clear that the essence of the Respondent's case was the breach of trust by the Applicant in presenting plans as ready for approval when he knew they were not so ready.

The evidence does not satisfy me that the Applicant was denied a fair hearing by the Respondent. It was submitted by the Applicant that the Respondent should have appointed a disciplinary tribunal under Regulation 40(8) of the Fiji Service Commissions and Public Service (Amendment) Decree 1987 No.10 which states:

"Where the Commission is not satisfied as to the truth of the charge it shall appoint a disciplinary tribunal in accordance with Regulation 3."

In this case I have no doubt the Respondent was satisfied as to the truth of the charges against the Applicant and so it was not obliged to appoint a disciplinary tribunal; nor did it have any power to.

Likewise I am not satisfied that the Respondent failed to take into account all relevant considerations. I do not propose to discuss the various cases cited to me. They are all well-known and I will only say however of Barnard and Others v. National Dock Labour Board and Others [1953] EWCA Civ 5; (1953) 2 Q.B. 18 that case is distinguishable from the present because in Barnard there was delegation of disciplinary powers, whereas in the Applicant's case there was no such delegation.

The only matter which has given me the most concern is the penalty imposed on the Applicant. Dismissal after twenty years' service is indeed a severe punishment on any person especially such as the Applicant who had shown himself trustworthy and loyal over the whole period of his employment.

Like Mr. Jaffar, if the decision were my own I would have imposed a lesser penalty but, as I have said above, unless the penalty was manifestly excessive the law does not permit me to do so or, rather, to quash the Respondent's decision.

For reasons given in his evidence by Mr. Jaffar I am not prepared to hold that the Respondent's decision to dismiss the Applicant was so harsh and unreasonable that it should be set aside.

The application for judicial review is therefore dismissed but there will be no order for costs.

JOHN E. BYRNE
J U D G E

HBJ0004J.91S