IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

ACTION NO. HBJ0024 OF 1994

BETWEEN:

STATE

V

ATTORNEY-GENERAL OF FIJI AND MINISTRY
OF INFRASTRUCTURE, PUBLIC WORKS AND MARITIME

EX-PARTE: SUBHASH CHAND (f/n SUREN CHAND)

R. Chand for the Applicant
D. Singh for the Respondents

Dates of Hearing: 15th April, 23rd May 1997
Date of Judgment: 11th June 1997

JUDGMENT

On the 2nd of October 1995 I gave the Applicant leave to apply for Judicial Review of the decision of the Ministry of Infrastructure, Public Works and Maritime dated 2nd of November 1993 to dismiss the Applicant from his employment as a labourer at the Suva Water Supply & Sewerage Section.

The Applicant had been employed as a labourer by the Ministry for 14 years when he was dismissed. The reason for his dismissal was stated to be his negligence on the night of 1st of July 1993 while he was on duty as a watchman when a power generator went missing from the Public Works Department, Caubati site.

I have already stated the relevant facts in my Ruling of 2nd of October 1995 but for the purposes of this judgment recapitulate them briefly. On the 1st of July 1993 the Applicant a night watchman commenced work some time between 4 and 5 p.m. He noticed that the shed which contained the generator was unlocked.

There were around five day shift workers drinking yagona in an adjacent shed when the Applicant arrived at work. All five workers saw the generator was in the shed.

While the five workers were there the Applicant went to a nearby shop to buy headache tablets and to pay his outstanding account.

When the Applicant returned some half an hour later these five workers were still there. They left at about 6.30 p.m. One of the workers told the Applicant "Look after the shed because the generator is there".

The Applicant admits in a handwritten statement given by himself dated 16th September 1993 to his employer that "I did not take stock after I came back from the shop. I left in the morning without checking the shed and went home."

In a statement dated 10th July 1993 submitted to the Ministry a leading-hand Taitusi Labaleka says that he was one of the five workers drinking yagona on 1st July 1993 and he warned the Applicant to look after the shed in which the generator was kept before he went home from work. The original copy of that letter cannot be traced and the photocopy which has been supplied to the Court by the Respondents through their counsel Mr. Singh does not show Mr. Labaleka's signature.

A memorandum dated 15th October 1995 by the Applicant's Supervisor T. Ledua states that the Applicant was interviewed by an Acting Supervisor one Ulai and that the Applicant admitted that he left the job site on the night in question to go to the shop. Mr. Ledua also says that as the job site at Caubati was not fenced and not properly lighted it was possible for a gang of youths to have stolen the generator in the period of time in which the Applicant was away from the site.

Mr. Ledua also says that the Police were not informed as Mr. Ledua and the Senior Engineer Mr. Percy Wijenayake to whom the loss of the generator was reported thought that the Department could handle all investigations itself.

Finally Mr. Ledua states, very importantly in my opinion, that proper procedures were not followed in this case. He concludes, "I recommend that proper investigation procedures be taught to Supervisors so that they are well versed with what should be done".

In this regard it is important to note that the Applicant requested his Supervisor to report the matter to the Police and offered to do so himself if his Supervisor did not. He was dissuaded from this course by his Supervisor on the alleged ground that this would disgrace the name of the Ministry.

Two weeks later the Applicant was informed by Mr. Labaleka that the generator had been found and recovered. Thereafter he was transferred to Nakelo and later to Vatuwaqa.

Whilst working in Vatuwaqa the Applicant received a termination letter from the Principal Engineer Suva Water Supply & Sewerage Section.

This letter dated 2nd November 1993 alleges that the Applicant's negligence caused the loss of the generator and that because the management viewed such negligence very seriously the Applicant's services were terminated as from 11th November 1993.

In a letter dated 14th March 1994 by the Ministry of Infrastructure, Public Works and Maritime to the General Secretary of the Public Employees Union to which the Applicant belonged and which had taken up the matter of the Applicant's dismissal with the Ministry, the Principal Engineer of Suva Water Supply stated inter alia,

"I do not intend to review my decision regarding this case until new evidence is provided. As stated previously a decision was made after careful consideration was given to the report and affidavits resulting from the investigation."

In a helpful and very fair submission by counsel for the Respondents a copy of the findings of a Mr. K. Sologar, the Personnel Officer dated 26th October 1993 was tendered to the Court. It is worth quoting the greater part of this report because as will be seen it has given me considerable assistance in reaching my conclusion in this case. I now quote from the section of the report beginning with the heading

"FINDING

After the investigation it was derived that:-

1.	The supervising officers did not follow proper procedures of reporting the matter to the Police immediately after the Generator got missing nor were the Senior Engineer, Principal Engineer and Accounts Officer informed.

2.	The report was sent to Personnel Section two(2) weeks after the incident and the Watchman was transferred to Nakelo job site.

3.	The Watchman was negligent and did not check the shed after returning from the shop nor did he check in the morning before leaving for home.

4.	The lost report was not submitted to Accounts Office.

The statement reveal that there was negligence in every officers part and it could not be determined who is to be blamed entirely. However, the Watchman by not checking the shed all through his shift and at knock off time had grossly neglected what he was paid for.

RECOMMENDED

Considering the above details it is recommended that the Watchman Subhash Chand (CL524), be suspended for one (1) week for his negligence resulting in the missing generator.

It is, also recommended that the supervisor, and the leading hand, Taitusi Labaleka (BB555), be reprimanded for not following proper procedures in regards to suspected theft of Government property.

CONCLUSION

It seems that the Watchman was made a 'scape goat' in this instance and his nature was taken advantage of.

The Watchman at the sites were not properly equipped.

They were not provided with proper lights and torches.

(Sgd)
................
K. Sologar
PERSONNEL OFFICER"

RELIEF SOUGHT

(a)	The Applicant applies for an order for certiorari to remove and quash the decision of the Ministry of Infrastructure, Public Works and Maritime dated the 2nd of November 1993;

(b)	A Declaration that the decision of the Ministry is invalid and of no effect;

(c)	A Declaration that the Applicant is entitled to his salary from the date of his termination until his re-instatement;

(d)	An Order that the Applicant be forthwith re-instated;

(e)	An Order for damages; and

(f)	An Order for costs.

The Applicant gives thirteen grounds on which he seeks relief. Summarised they are that the Second Respondent denied the Applicant natural justice in that:

(a)	(i)	The Second Respondent failed to lay any proper charges against the Applicant.

(ii)	The Second Respondent failed to allow the Applicant to answer any charges or to reply to or rebut any evidence which it had or to cross-examine any witnesses from whom the Respondent had taken statements.

(iii)	Any investigations by the Second Respondent were carried out in the absence of the Applicant and without his knowledge of any allegation or charges put to him.

(b)	That the Second Respondent's decision was arbitrary and unreasonable in that the Applicant was denied natural justice and that there was no evidence before the Second Respondent which would justify the termination of the Applicant's employment.

In my judgment all of these grounds have been made out by the Applicant. References are made by the Second Respondent to it being in possession of affidavits presumably by persons with some knowledge of the circumstances in which the generator went missing yet the Applicant was given no opportunity to question or cross-examine the persons who swore these affidavits.

I accept the conclusion of the Personnel Officer that the Applicant appears to have been made a scape goat in the light of the conclusion by the Personnel Officer that there was negligence on the part of other officers as well as the Applicant and that it could not be determined who should be blamed entirely.

In my view had the matter been reported to the Police immediately, as the Applicant requested, the generator may have been recovered much sooner and appropriate action taken against those whom the Police may have found responsible for its removal from the site.

Furthermore in my judgment the penalty of dismissal for the Applicant after 14 years unblemished service with the Respondent was too harsh and on the authority of R. v. Barnsley Metropolitan Borough Council ex parte Hook (1976) 3 ALL E.R. 452 I hold that on that ground alone the decision must be quashed.

I do not propose to refer to the many well known cases on the question of what constitutes a denial of natural justice. It suffices to mention Daganayasi v. Minister of Immigration (1980) 2 NZLR 130 a decision of the Court of Appeal of New Zealand which held that any person adversely affected by a decision of a public body has the right to be provided with all evidence in the possession of the authority on which the decision is based so that the authors of any statements may be questioned with a view to an Applicant correcting or contradicting any such statements prejudicial to an Applicant.

Accordingly I hold that certiorari is to go to quash the decision of the Second Respondent of the 2nd of November 1993 and that the Applicant is to be re-instated in his employment by the Second Respondent. I also declare that the Applicant is to be paid his salary from the date of his termination until his re-instatement. I also order the Respondents to pay Applicant his costs.

I consider the Applicant was guilty of some negligence and that it is only fair that he should be penalised appropriately for this. I consider that in all the circumstances a deduction of one month's pay would be appropriate.

(JOHN E. BYRNE)
J U D G E

Cases referred to in judgment:

Daganayasi v. Minister of Immigration (1980) 2 NZLR 130.
R. v. Barnsley Metropolitan Borough Council ex parte Hook (1976) 3 ALL E.R. 452.

Cases also cited:

Board of Education v. Rice and Others 1911 A.C. 179.
Kanda v. Government of the Federation of Malaya (1962) A.C. 322.
F.P.S.A. v. P.S.C. and Attorney-General Action No. 72 of 1985 - unreported judgment of Cullinan J.
Epeli Lagiloa v. P.S.C. and Another Judicial Review No. 0016 of 1994 - unreported judgment of Pathik J. dated 5th September 1996.
Mahon v. Air New Zealand Limited (1984) A.C. 808.
O'Reilly v. Mackman (1983) 2 A.C. 273.
HBJ0024J.94S