Mr. S. Matawalu for the Applicant
Mr. D. Singh for the Respondent
JUDGMENT
Pursuant to leave herein the Applicant applies for judicial review of the decision of the Public Service Commission made on 31 July
1997 seeking the following declarations and orders:-
"a) A Declaration that the Disciplinary Proceedings preferred against the applicant by the Permanent Secretary for Regional Development
and Multi Ethnic Affairs under his memorandum dated 5th June 1997 are null and void and of no effect.
b) A Declaration that in any event the decision of the Public Service Commission made on the 6th day of August 1997 downgrading him
in rank from Principal Administrative Officer to Senior Administrative Officer in accordance with Regulations 51(1)(b) of the Public
Service Commission (Constitution) Regulations 1990 is null and void and of no effect.
c) A Declaration that the decision of the Public Service Commission made on the 6th day of August, 1997 in uplifting the applicant's
interdiction without any salary or benefits during the period of interdiction is null and void and of no effect.
d) An Order that Certiorari do issue quashing the said decisions of the Public Service Commission."
Grounds for Relief
The Grounds upon which the reliefs are sought are as follows:
(i) Charge 1 preferred by the Permanent Secretary for Regional Development and Multi Ethnic Affairs under his memorandum dated 5th
June 1997 discloses two or more possible offences and therefore is bad in law on the grounds of duplicity.
(ii) Charges 2 and 3 are vague and lack particularity and are prejudicial to the applicant's ability to properly answer to the said
charges.
(iii) The inordinate delay in the charges being preferred has been prejudicial to the applicant's right to be dealt with expeditiously.
(iv) The Permanent Secretary for Regional Development and Multi Ethnic Affairs has erroneously considered the charges against the
applicant as major offences by not only taking into consideration irrelevant matters but also in not considering relevant issues.
(v) That the Public Service Commission in uplifting the applicant's interdiction without salary and benefits has acted in breach of
Regulations 42 and 51 of the Public Service Commission (Constitution) Regulations 1990 and of the Principles of Natural Justice."
The decision impugned
The decision impugned is in the following terms:
"DISCIPLINARY ACTION
The Public Service Commission, on 30/07/97 considered:
(i) the charges laid against you by the Permanent Secretary for Regional Development and Multi Ethnic Affairs 05 June 1997
(ii) your reply to the charges containing your explanation to support your denial of the charges thereof dated 05 June 1997;
(iii) all evidence submitted by both yourself and the Permanent Secretary for Regional Development and Multi Ethnic Affairs.
The Commission has found you guilty as charged and decided:
(1) that you be down graded in rank from Principal Administrative Officer (AD01) to be Senior Administrative Officer (AD02) in accordance
with Regulation 51(1)(b) of the Public Service Commission (Constitution) Regulations, 1990.
(2) that you interdiction be lifted and you be allowed to resume duties;
(3) that you are not entitled to any salary and benefits for the period of interdiction from 27 January 1995 to the date of resumption
of duty.
In accordance with the Commission's decision:
(a) you are to resume duty with effect from 06 August 1997 at the Ministry of Regional Development and Multi Ethnic Affairs;
(b) you will receive salary at the rate of $19,684 per annum in the salary scale: $19,684 - $23,170 in the grade AD02.
(c) you will be kept under close supervision and any recurrence of similar nature will result in your dismissal from the Service."
Background
The Applicant was the Divisional Planning Officer before he was downgraded. On 17 January 1995 he was charged with the offence of
causing death by dangerous driving. The accident took place on Bau Road near Nausori Airport involving a private motor vehicle and
a Government motor vehicle registered number GL.244 driven by the Applicant on 17 December 1994 . He was convicted of the lesser
offence of careless driving and was fined $50.00 which he has paid. The State's Appeal against the decision filed on 23 July 1996
was dismissed on 23 April 1997. It was on 27 January 1995 that he was interdicted without salary; it was on the same day that disciplinary
charges were laid against him to which he replied on 6 February 1995.
Subsequently on 5 June 1997 the Public Service Commission ("PSC") preferred disciplinary charges against him to which he replied the same day. On 31 July 1997 the PSC advised the Applicant that
he has been found guilty of all the charges. On 11 August 1997 the Applicant requested a reconsideration of the sentence purporting
to deprive him of any salary benefits during the period of interdiction. The PSC replied on 20 August 1997 stating that he was not
entitled to receive any salary and benefits.
Applicant's submission
Mr. Matawalu dealt with each of the grounds on which he seeks relief. Actually there are two main grounds, namely, first that the
disciplinary charges are bad for duplicity and second, the Respondent not paying his salary during the period of interdiction is
contrary to the Public Service Commission (Constitution) Regulations, 1990 (the "Regulations").
On the first ground he went to some length stating how the charges are bad for duplicity as a consequence whereof the Applicant was
'prejudiced' and unable to "properly conduct his defence in the way of his written Reply". He said that the charges were not sufficiently clear although he replied to them the best he could by 'taking a shot in the dark'. He said that there was denial of natural justice; he should have been heard. Mr. Matawalu submitted that there was "lack of particularity" in the charges.
The second ground regarding payment of salary for the period of interdiction is conceded by counsel for the Respondent with some reservation.
I shall deal with this aspect when I consider the issues before me.
Respondent's contention
Mr. D. Singh in reply to the first ground stated that "there is sufficient particulars in terms of time, place and circumstances along with the stated rule making the charge clear
and unambiguous". In NORMAN and MORAN v NATIONAL DOCK LABOUR BOARD (1957) 1 Lloyd's Rep. 455 it was stated that "one charge may sustain an expulsion although others preferred at the same hearing are bad in form or in substance". He says that the charge is not bad for duplicity for Reg. 36(c) states specifically that an officer commits a disciplinary offence
for the purposes of disciplinary proceedings when the officer "by word or conduct displays insubordination". He says that the question of using the vehicle under the influence of liquor does not arise under Charge I because that was a criminal
offence for which the Applicant was charged under the Penal Code and Traffic Act. On charges 2 and 3 he says that the particulars are clear and that it is the 'conduct' that is in issue; charge 2 concerned damage to Government property and charge 3 relates to "abusive and disorderly manner".
Mr. Singh further says that there was no inordinate delay in laying charges.
On Ground (iv) he says that it is in the discretion of the Permanent Secretary to decide whether it is a minor or major offence. The
charge "against the Applicant was serious; he was acquitted on the technical ground that the breathalyser was not legally calibrated". Ground (v) Mr. Singh concedes "in all fairness and honesty" but he qualified this by saying that he is entitled to some part of salary but not in this case as he is out of time.
Consideration of the issue
With the above background and bearing in mind the submissions of counsel I shall now consider the issue before me.
It is not the purpose of judicial review to review the merits of a decision but the decision-making process itself. The Court reviews
the manner in which the decision was made. In a judicial review, as stated by Lord Fraser in In re AMIN (1983 2 AC 818 at 829):
"It is made effective by the court quashing an administrative decision without substituting its own decision, and is to be contrasted
with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer."
The question that arises here is whether there was any procedural impropriety in arriving at the decision impugned.
Certain disciplinary charges were laid against the Applicant on 27 January 1995 to which he replied; but when he was charged with
the criminal offence of causing death by dangerous driving, the charges were held in abeyance while the action was pending. After
his conviction for the lesser offence of careless driving, on 5 June 1997 disciplinary charges were laid again against him under
Regulation 36(c) and 36(t) to which he replied on the same day. The Respondent's decision was conveyed to the Applicant on 31 July
1997. By letter dated 11 August 1997 Mr. Matawalu questioned the validity of the decision not to pay the Applicant any salary at
all up to the time of resumption of work.
Decision was reasonable
Upon due consideration of the submissions I find that on the facts of this case the Public Service Commission was justified in charging
him as it did. There was nothing procedurally wrong with it despite the fact that there was considerable delay in laying the charges
the second time. After considering the Applicant's response to these charges, the Respondent came to the said decision and in the
process I do not find that PSC has taken any irrelevant consideration into account. The Applicant's conduct on the facts was certainly
reprehensible and he had to be dealt with in accordance with Regulation 36(c) and (t). There was nothing 'unreasonable' in the approach adopted by the Respondent in this case. MASON J in MINISTER FOR ABORIGINAL AFFAIRS v PEKO-WALLSEND LTD (1986) 162 CLR 24 at 40-41 stated the principle to be applied as follows:-
"(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It
is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the
legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within
those boundaries cannot be impugned...."
The Applicant alleged in Ground (iv) above that the Respondent took into consideration irrelevant matters and did not consider relevant
issues. That I find is not so.
The principles governing the approach of a decision-maker in this regard is succinctly put in PEKO-WALLSEND LTD (supra) at p40 thus and it is apt here:
"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally
for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be
taken into account in exercising the statutory power: Sean Investments Pty Ltd v Mackellar [1981] FCA 191; (1981) 38 ALR 363 at 375; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 205; Elliott v Southwark London Borough Council [1976] 1 WLR 499 at 507; [1976] 2 All ER 781 at 788; Pickwell v Camden London Borough Council [1983] QB 962 at 990. I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative
decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant
factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which
this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations,
but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene MR in Associated Provincial
Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable
that no reasonable person could have come to it..."
Mr. Matawalu laid great stress on charges being bad for duplicity etc. I see no merit in his argument whatsoever in this regard. They
were clear enough and showed with adequate precision to bring home to the Applicant what he was charged with and that is the sole
purpose of a charge. There was nothing of a prejudicial nature in the charges. In any case he answered these charges which indicates
that he also knew what the charges were about and he did not raise the question then which Mr. Matawalu as his counsel is raising
now in relation to them.
Where the misconduct and insubordination have been proved and the explanation offered has been refused, which was the case here, the
decision reached in that manner is justified. The Respondent is "bound to act strictly according to its rules and is under an obligation to act honestly and in good faith". (NORMAN & MORAN supra at p.470).
Natural Justice
Mr. Matawalu submitted that there was denial of natural justice. I do not agree, for the facts clearly show that the procedure in
Reg. 41 was followed by the Respondent. He was given the opportunity to respond to the charges which he did. The respondent was not
required to do any more. There is a wealth of material on "natural justice" and the cases abound with an account of what it means. In the context of this case, since this subject has been raised I take the
liberty of referring to certain excerpts from the judgment of ROMER L.J. in NORMAN and MORAN (supra) which are pertinent to the issue in this case.
At p.469 ROMER L.J while considering the submission of denial of natural justice, stated thus on the nature of jurisdiction of 'domestic tribunals':
"Natural justice" is a difficult thing to define. "It has often been pointed out," said Lord Justice Hamilton
(as he then was) in Rex v Local Government Board. Ex parte Arlidge, [1913] UKLawRpKQB 170; [1914] 1 K.B. 160, at p.199, "that the expression is sadly lacking in precision." In relation to the decisions of so-called domestic tribunals,
the subject was considered in some detail by Lord Maugham (then a Judge of first instance) in Maclean v. The Workers' Union, [1929] 1 Ch. 602. It is unnecessary to state the facts of that case in any detail beyond saying that the plaintiff was seeking to challenge a resolution
of a disciplinary nature which the defendant Union had passed against him on the ground that it was ultra vires and void. The learned
Judge dismissed the action, and in the course of his judgment made the following observations, at p.620:
The jurisdiction of the Courts in regard to domestic tribunals a phrase which may conveniently be used to include the committees or
the councils or the members of trade unions, of members' clubs, and of professional bodies established by statute or Royal Charter
while acting in a quasi-judicial capacity is clearly of a limited nature. Parenthetically I may observe that I am not confident that
precisely the same principles will apply in all these cases; for it may be that a body entrusted with important duties by an Act
of Parliament is not in the same position as, for example, the executive committee in the present case. Speaking generally, it is
useful to bear in mind the very wide differences between the principles applicable to Courts of Justice and those applicable to domestic
tribunals."
He goes on to state (about domestic tribunals):
"It is apparent and it is well settled by authority that the decision of such a tribunal cannot be attacked on the ground that
it is against the weight of evidence, since evidence in the proper sense there is none, and since the decisions of the tribunal are
not open to any sort of appeal unless the rules provide for one. There is perhaps a question whether the decision can be attacked
on the ground that there is no evidence (a word used presumably in a popular sense) upon which the tribunal could possibly come to
such a conclusion."
The following further extract from the judgment of MAUGHAM J (as he then was) is apt in regard to the application of Regulations:
"A person who joins an association governed by rules under which he may be expelled ... has in my judgment no legal right of
redress if he be expelled according to the rules, however unfair and unjust the rules or the action of the expelling tribunal may
be, provided that it acts in good faith. It is impossible to doubt that, if the rules postulate an inquiry, the accused must be given
a reasonable opportunity of being heard. The phrase, "the principles of natural justice," can only mean in this connection
the principles of fair play so deeply rooted in the minds of modern Englishmen that a provision for an inquiry necessarily imports
that the accused should be given his chance of defence and explanation. On that point there is no difficulty."
After carefully considering all the relevant circumstances of this case, bearing in mind the submissions of counsel and considering
the authorities and the principles applicable to a judicial review application I do not consider that the Respondent departed from
the principles of natural justice in the proceedings before the Public Service Commission. So long as the tribunal such as the PSC
acted in good faith it could not be stigmatized as failing in natural justice.
Payment of salary on interdiction
It is on the second main ground that I uphold Mr. Matawalu's submission to some extent. That concerns the payment of salary during
the period of interdiction. As stated above Mr. Singh conceded that the Applicant would be entitled to some part of the salary, but
"not in this case as he is out of time".
Regulation 42(5) is relevant here:
"(5) If disciplinary proceedings against any such officer result in his exoneration he shall be entitled to the full amount of
the remuneration which he would have received if he had not been interdicted but if proceedings result in any punishment other then
dismissal of the Officer shall be allowed such salary as the Commission may in the circumstances determine".
The Applicant does not deserve to be punished twice. That is what has actually happened here. He has not been dismissed but demoted
with substantial loss in salary. Hence in all the circumstances of this case under said Reg. 42(5) he ought to be paid 90% of his
salary on the scale he previously enjoyed for the period of his interdiction until resumption of work.
Conclusion
In the outcome, for the above reasons the Application is refused except that I make a declaration quashing the decision of the Public Service Commission in regard to the payment of salary and ordering
the Respondent to pay to the Applicant 90% of the salary and benefits on the previous scale from the date of interdiction to the
date of resumption of work.
Unless Counsel wish to address me on costs, I award costs against the Respondent payable to the Applicant in the sum of $400.00 inclusive
of disbursements.
D. Pathik
Judge
At Suva
20 November 1997
Hbj0027.97s
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