State v Permanent Secretary for Education, Women & Culture, Ex parte Jitoko [1997] FJHC 188; Hbj0010j.1997s (28 November 1997)

Fiji Islands - The State v The Permanent Secretary for Education, Women & Culture; Ex parte Jitoko - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. 10 OF 1997

BETWEEN:

THE STATE

v

1. PERMANENT SECRETARY FOR EDUCATION,
WOMEN AND CULTURE

2. THE SECRETARY, PUBLIC SERVICE COMMISSION
Respondents

Ex-parte: KEPUELI JITOKO
Applicant

Mr. I. Tuberi for the Applicant
Mr. S. Kumar for the Respondents

JUDGMENT

The Applicant KEPUELI JITOKO, pursuant to leave granted him on 19 June 1996, is applying for Judicial Review of the Second Respondent's decision communicated to him by the First Respondent on 25 February 1997 dismissing him from the Public Service with effect from 10 February 1993. The said memorandum reads:

"The Public Service Commission at its meeting held on 05/02/97 has approved your dismissal from the Service under Regulation 51(1)(a) of the Public Service Commission (Constitution) Regulations, 1990 be effected from 10/02/93 and that you be paid your normal remuneration that you would have received had you continued to serve as a teacher for the period 12/10/90 to 9/03/93."

About the Applicant and Chronology of events

Jitiko became a school teacher on 21 January 1979 and taught until 14 October 1990 when in late 1989 he was charged and convicted on 14 October 1990 on three counts of rape and was sentenced to imprisonment for two and a half years. On 23 May 1991 his Appeal was allowed and he was released from Prison on the same date.

On 3 July 1991 his Solicitor Mr. Fa wrote to the first Respondent seeking his reinstatement. Since no reply was received another letter was written on 6 August 1992. A reply was received early 1993 when he was charged with disciplinary offences by the second Respondent. He was given the opportunity to reply to the charges. He made no response. His counsel advised him that the charges were defective but took no further steps in regard to them. He was dismissed from the Public Service by letter dated 15 March 1993 (Ref. PSC C29/15/20-4) after failure to reply to the charges.

Thereupon the Applicant wrote to the Ombudsman who in turn wrote to the second Respondent on 22 October 1993. Then on 17 December 1993 the Ombudsman informed the Applicant that, inter alia, "The Permanent Secretary has rejected your complaint on the basis of the fact that you failed to state in writing within the specified period your denial or admission of the charges laid against you by the Permanent Secretary for Education, Science and Technology".

He again wrote to the second Respondent on 3 July 1996 seeking reinstatement. Since there was no response he sought legal advice and Mr. Tuberi wrote to the first Respondent. The first Respondent replied on 4 March 1997 stating that the Applicant's dismissal is effective from 15 February 1993 and that he is entitled to his salary for the period 12 October 1990 to 9 March 1993.

Applicant's contention

In short, Mr. Tuberi submits that after the Applicant's discharge he should have been reinstated under Regulation 53. He regards the 'discharge' as 'acquittal' giving rise to the application of Regulation 53. Also, he says he could not have been charged for the three disciplinary offences after having been discharged as those charges are "substantially the same as that in respect of which he has been acquitted" and this is contrary to Reg. 53.

Mr. Tuberi further submits that the charges are defective in that the Applicant is charged under 35(e) whereas the "preamble to the charges" says Regulation 36.

Mr. Tuberi also argues that there has been an inordinate and unreasonable delay in laying disciplinary charges against the Applicant. He was discharged from prison on 23 May 1991 and Mr. Fa wrote to the Respondents on 3 July 1991 and it was not until 23 March 1993 (a period of 10 months) that the first Respondent decided to take disciplinary action against him. The charges were laid on 29 June 1992. He alleges this delay was "in breach of the rules of natural justice". He says that this delay makes the whole disciplinary proceedings and the decision to dismiss unlawful and invalid.

Counsel further submits that the Respondents "failed to put in evidence why the Applicant was dismissed" and that "they did not annex any document to support that the Applicant was dismissed earlier than the 5th day of February 1997".

On the ground of "legitimate expectation" Mr. Tuberi says that the Applicant expected the decision to be determined within a reasonable time. He said that the Applicant is "entitled to an equitable remedy for the breach of his legitimate expectations to be reinstated into the Public Service after his criminal convictions were quashed by the Court".

Respondents' contention

Mr. Krish Prakash Singh, Director of Administration and Finance, deposed that the Applicant did not report to duties from 2 October 1990. After the Applicant was convicted and sentenced the first Respondent submitted to the second Respondent to dismiss him; but then he appealed against his conviction. Before the Second Respondent could deliberate on dismissal the Applicant's conviction was quashed. Thereafter the Applicant was charged on three counts of major offences alleging that his conduct was improper in the Applicant's official capacity and likely to bring the Public Service into disrepute. The charges were laid on 29 June 1992 to which he failed to respond whereupon he was dismissed from the Service.

The deponent says that the Public Service Commission (Constitution) Regulations, 1990 (the "Regulations") have not been contravened as the Ministry's charges are a result of the Applicant's conduct as a teacher whereas the criminal charges are for the offence of "Rape".

The deponent further says that the procedure laid down in the Regulations have been followed and that the decision to dismiss the Applicant was never vacated and then "all rights available were accorded to the Applicant but he failed to take advantage of the same".

The decision impugned is the second Respondent's decision dated 15 March 1993 dismissing the applicant from service. Mr. Kumar submits that the Court has to decide whether the Application was made within the prescribed time and whether Regulation 53 has been contravened. He says that it was the duty of the Applicant to file the application within 3 months from the date of decision which he failed to do. The Applicant admitted that he was dismissed on 10 March 1993 by letter dated 15 March 1993. He submits that this ground is sufficient to dismiss the application otherwise it will be "detrimental to the good administration of public authority".

The second limb of his argument is that Regulation 53 has no application to this case as the Applicant was not "acquitted" but "discharged". Alternatively, if the Court holds that this Regulation does apply then the Regulation empowers the Public Authority to lay other charges arising out of his conduct. He was disciplined for his conduct as a teacher under the 'Code of Ethics' for teachers and under Regulation 36(t) which is substantially different from the criminal charge of rape. He says that the disciplinary action here is internal discipline of the teacher for his conduct towards his students.

Mr. Kumar submits that the Respondents followed the procedure laid down in the Regulations and not having received any response to the disciplinary charges the Applicant is deemed to have admitted the charges pursuant to Regulations 41(3) of the Regulations.

Reliefs sought

The reliefs sought are as follows:-

(a) An order of certiorari to remove the said decisions of the Second Respondent dismissing the Applicant on the 5th February 1997 from the Public Service.

(b) A declaration (in any event) that the Second Respondent has acted unfairly and/or in breach of the rule of natural justice and/or abused its discretion under the Public Service Commission (Constitution) Regulations 1990 and/or exceeded its jurisdiction and/or acted in breach of the legitimate expectation of the Applicant.

(c) Damages.

(d) Further declarations or other reliefs as this Honourable Court may deem fit and necessary.

(e) Costs.

Grounds of relief

The grounds upon which reliefs sought are:

(a) The Second Respondent has acted in breach of the rules of natural justice in dismissing the Applicant from the Public Service as the Second Respondent instituted a disciplinary proceeding which was in breach of Public Service Regulations; and instituting the said proceedings after one year of the quashing of the conviction of the Applicant.

(b) The Respondent abused its discretion under the Public Service Commission (Constitution) Regulations 1990 because

(i) it took into consideration irrelevant matters; and

(ii) it did not take into consideration relevant matters such as the fact that the Applicant had been cleared of the allegation by the High Court and that any disciplinary proceedings relating to the allegations against the Applicant would be in breach of the Public Service Regulations.

(iii) it acted arbitrarily and/or in bad faith and/or unreasonably;

(iv) it failed to properly consider the relevant proper procedure regarding the quashing of the Applicant's convictions; and

(c) The Respondents exceeded their jurisdiction under the Public Service Commission Regulations 1990.

(d) The Respondents acted contrary to the legitimate expectations of the Applicant.

Consideration of the issue

With the above background and the submissions I shall now deal with the issue before me in the light of the principles applicable to a judicial review.

In a judicial review the Court is "not as much concerned with the merits of the decision as with the way in which it was reached" CHIEF CONSTABLE OF THE NORTH WALES POLICE v EVANS [1982] UKHL 10; 1982 1 W.L.R. 1155 at 1174. Also, as put by LORD TEMPLEMAN in REG. v INLAND REVENUE COMMISSIONERS, Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at 862 that:

"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers".

In this case the Applicant was 'discharged' on appeal to the High Court (Crim. App. 94/90). His Lordship Fatiaki J said while quashing the convictions that:

"In the light of the several "irregularities" that occurred in the appellant's trial and having regard to the misdirections of the trial magistrate in relation to the corroborative evidence the appellant's conviction must be considered unsafe and unsatisfactory.

The appeal is accordingly allowed, the convictions quashed and the appellant discharged". (emphasis added)

Mr. Tuberi very seriously argued that because the convictions were quashed, the Applicant should be regarded as having been "acquitted" and this he said paves the way for the application of Regulation 53 which provides as follows:

"53. An officer acquitted of a criminal charge in any court shall not be dismissed or otherwise punished in respect of any charge of which he has been acquitted, but nothing in this regulation shall prevent his being dismissed or otherwise punished in respect of any other charge arising out of his conduct in the matter, unless such other charge is substantially the same as that in respect of which he has been acquitted."

This Regulation in my view has no application to the facts of this case. The Regulation talks specifically of 'acquittal' and it means what it says. The Regulation has no application to the case of a 'discharge' like the present.

The main thrust of Mr. Tuberi's argument was based on the applicability of Regulation 53 and he dwelt at great lengths on this in his written submission. The issue of 'legitimate expectation' was also based on Regulation 53.

On the facts before me, the Respondents were entitled to bring disciplinary proceedings against the Applicant.

The fact that he was discharged does not prevent the Respondents from bringing disciplinary charges against him as they did. He was given the opportunity to respond to the charges but he failed to do so. Under Reg. 41(3) "whenever an officer fails to state in writing under sub-regulation (2) whether he admits or denies the charge, he shall be deemed to have admitted the charge".

In these circumstances when the Respondents complied with the relevant Regulations, no question of denial of natural justice as alleged in Ground I arises. It is the Applicant's own fault in not defending himself by responding to the charges. For reasons best known to himself he kept quiet. No one will condone such alleged disgraceful conduct on the part of school teachers, the Code of Ethics governing the teaching profession must be mastered and followed by all concerned. To insist on being re-instated after being discharged as opposed to acquittal on charges of rape and then not responding to the allegation of sexual intercourse with his students in the circumstances of this case in the disciplinary charges, is asking too much.

As for Grounds (b), (c) and (d), they overlap each other to some extent and they can be dealt with together. The short answer to them all is that they are devoid of any merits whatsoever and a sheer waste of everyone's time in making Application of this nature on the facts of this case. I should mention here that experience shows that there is a strong tendency for counsel to throw in almost every ground available in a judicial review application without substantiating all of the grounds. I refer to the comments in this regard contained in following passage in the judgment of Fiji Court of Appeal delivered 14 November 1997 in VICTOR JAN KAISIEPO and THE MINISTER FOR IMMIGRATION (Civ. App. No. 54/965) at page 3 in the hope that what is stated therein will be borne in mind in future:

"The grounds of the application were numerous and included a denial of natural justice, on the grounds of not giving a fair hearing and bias, taking into consideration irrelevant matters, failing to take into account relevant matters, acting unreasonably, not giving regard to or taking into account the legitimate expectations of the applicant and failing to give reasons for the decision. In effect, the appellant raised almost all imaginable grounds available in administrative law to challenge the decision but did not make clear what matters were relied upon to support the individual grounds. This is an unacceptable procedure when seeking judicial review. We add, that adopting this scatter-gun approach is inimical to the applicant's prospects of success for the Court is left unclear as to what are the important issues in the case."

The Applicant did not challenge the decision of 15 March 1993 dismissing him. He is completely out of time in making the present application which he commenced in 1997. The letter of 25 February 1997 referred to hereabove merely confirmed his dismissal effective from 10 February 1993 and therefore this was not the first intimation of his dismissal to bring him within time to apply for judicial review.

In view of what I have decided on the first Ground it will serve no purpose in saying anymore on "out of time" aspect of the matter.

In the outcome, for the above reasons the application is dismissed with costs against the Applicant in favour of the Respondents to be taxed if not agreed.

D. Pathik
Judge

At Suva
28 November 1997

Hbj0010j.97s