State v Attorney-General of Fiji, Ex parte Nainima [1997] FJHC 242; Hbj0027j.1995s (21 October 1997)

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

ACTION NO. HBJ0027 OF 1995

THE STATE

v.

ATTORNEY GENERAL OF FIJI

EX-PARTE:

JOSEPH NAINIMA

S. Matawalu for the Applicant.
S. Kumar for the Respondent.

Dates of Hearing and
Submissions: 11th December, 1996, 28th and 29th August 1997
Date of Judgment: 21st October 1997

JUDGMENT

Despite the Chief Justice's Practice Note No. 1 of 1997 these proceedings are wrongly entitled on all documents filed. The correct title is on this judgment. It would appear some members of the profession could not be bothered to read Practice Notes which are prepared for a reason, namely to give guidance to the profession and not for the edification only of judges.

The Applicant was until 18th October 1995 a Principal Education Officer employed in the Public Service of Fiji and subject to the directions and control of the Fiji Public Service Commission in his work.

On the 24th of October 1995 he received a letter dated 18th October 1995 from the Acting Secretary for the Public Service Commission that he was being downgraded by one level to be Senior Education Officer with effect from 18th October 1995.

His application for judicial review is made pursuant to leave which I granted on 27th November 1995.

The facts are that after Cyclone Kina in January 1993 the Ministry of Education and other Government Departments were responsible for the reconstruction of certain schools destroyed by Cyclone Kina through an European Economic Community (EEC) funded Social Infrastructure Project.

The Applicant who was then Head of the Research and Development Unit was responsible for the vetting of all requests for assistance from schools which had been damaged in the cyclone and for making appropriate recommendations through the then Chief Education Officer, Kolinio Meo, as to which schools were to receive buildings grants.

After completion of the project an inspection was made of all records relating to building grants given by the Ministry of Education after complaints were received from certain schools concerning among other things the extent of material shortages or excesses, problems on materials delivery, allegations of poor quality material being supplied in all instances by Vinod Patel & Co. Ltd. and the qualifications of various contractors employed for the project. An investigation was then conducted by the Ministry of Education, Women, Culture, Science & Technology (hereinafter referred to "as the Ministry"). A report was then sent to the Ministry by various public servants who conducted investigation which linked the Applicant and another senior officer with the problems identified by them. Two main allegations were made against the Applicant:

(1) That he had given grants to schools without any authority; and

(2) Misguided and misled his superiors in the processing of grants for schools which did not need assistance.

Disciplinary proceedings were then instituted against the Applicant and five charges were laid against him on the 2nd of December 1994 alleging in effect over-payment or false certification of funds said to be required for the repair of damage to schools.

The Applicant was invited to reply to these charges giving reasons, which he did. The matter was then forwarded to the Public Service Commission along with the Ministry's recommendations on 13th March 1995.

On the 16th of May 1995 four more charges were then laid against the Applicant alleging non-compliance with General Orders, namely unauthorised absence from work and a disrespectful attitude towards his superiors.

The Applicant again responded giving reasons and denying the charges. This matter was forwarded to the Public Service Commission on 15th August 1995.

In accordance with the rules of this Court relating to such applications affidavits were filed on behalf of the parties, in most cases containing a wealth of detail and documentation. They also contain numerous allegations and counter-allegations as to facts and explanations by the parties.

In the statement provided by the Applicant pursuant to Order 53 of the High Court Rules there are, as might be expected in such applications, two grounds upon which the Applicant seeks relief which are always made in applications for judicial review:

That the Public Service Commission did not consider relevant matters and took into account irrelevant matters.

Again as happens all too frequently in these applications particulars of the relevant or irrelevant matters are not mentioned by the Applicant. However from his submissions and his affidavits it appears that the Applicant is alleging essentially -

(1) that the Public Service Commission did not consider his explanations on the charges;

(2) that he was given no right to present his case to the Commission;

(3) that the procedure followed by the Public Service Commission does not give any body including the Applicant a right to present his or her case and as such is unfair and a breach of the principles of natural justice.

It is also submitted that due to the serious nature of the charges against the Applicant he should have been given a hearing by the Disciplinary Tribunal appointed under Section 46 of the Public Service Commission (Constitution) Regulations 1990.

In his affidavit of the 15th of July 1996 the Applicant contends that Regulation 41 in particular is weighted against the officer charged because the Commission may only appoint a Disciplinary Tribunal where it is not satisfied with the truth of the charge or charges against the officer.

Regulation 41 deals with major offences by public servants. So far as relevant sub-regulation (1) reads, "If a Permanent Secretary or any officer acting with the authority of the Permanent Secretary has reason to believe that an officer..... has committed a disciplinary offence which the Permanent Secretary regards as a major offence..... he shall charge the officer with having committed the alleged offence and forthwith serve the officer with a written copy of the charge against him and the particulars of the alleged offence."

Sub-regulation (2) requires the officer charged to notify the Permanent Secretary or Head of Department in writing within a reasonable time whether he admits or denies the charge and allows the officer to give the Permanent Secretary an explanation if he so wishes.

Sub-regulation (4) requires the Permanent Secretary to obtain written statements from persons who have direct knowledge of the allegation.

Under sub-regulation (5) the Permanent Secretary shall then forward to the Commission all such statements and relevant documents, a copy of the charge and of any reply to it and the Permanent Secretary's own report on the matter after which the Commission must consider and determine the matter.

By sub-regulation (6) if the Commission, after considering the reports under sub-regulation (5) and after making such further investigation or inquiry as it considers necessary, is satisfied that the charge is true it may then impose the various penalties set out in regulation 51, one of which is reduction in rank.

In my view the Applicant was given every opportunity to answer the charges against him and exercise his right to reply to those charges and give explanations about his conduct. For this reason alone I would dismiss his application for judicial review on the ground that he has not been denied natural justice.

It is pointless for the Applicant to submit that the procedure followed by the Public Service Commission is unfair and contrary to natural justice. The fact is that these regulations are the law and it is the function of the Courts only to interpret the law but not to amend it.

Beginning his short judgment in Wiseman v. Borneman (1971) AC 297 at p.308 Lord Reid said:

"For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

Applying these remarks to the instant case I do not consider the present statutory procedure provided by the Public Service Regulations was insufficient to achieve justice in the present case. Furthermore I am satisfied that the Applicant had, and availed himself of, every opportunity to set out in his answer to the charges all the facts which he thought were relevant and all arguments on which he relied.

As to the claim that he should have been given a chance to present his case to the tribunal under Regulation 44 I disagree. In my view there was evidence on which the Commission could find the charges true and therefore not appoint a tribunal and on that footing even have dismissed the Applicant under Regulation 51(1)(a).

It chose not to do so but imposed a less severe punishment of reduction in rank.

There are some local cases relevant to this matter, the unreported judgment of Scott J. in HBJ0008 of 1994, The State v. The Secretary, Public Service Commission & Another Ex-parte: Joeli Nabuka delivered on 16th May 1995 and the Public Service Appeals Board v. Mahendra Singh FCA 53/81 in which the judgment of Henry J.A. was quoted with approval by Scott J. on p.9 of his judgment in Joeli Nabuka.

On p.13 of his judgment Sir Trevor Henry said:

"In the present legislation the statute.... has made itself clear as to the extent of the right of audience, so the statute must prevail and there is no room to supply an omission by qualifying or extending the words of the statute."

If the Applicant considers that the Public Service Commission Regulations are unfair then he should endeavour by political or other means to have them amended. Until they are amended they are the law and I have no alternative, even if I wished, which I do not, but to apply them.

I consider the Applicant has not made out a case for judicial review and his application is therefore dismissed with costs.

JOHN E. BYRNE
J U D G E

Authorities and legislation referred to in judgment:

Public Service Commission (Constitution) Regulations, 1990.
HBJ0008 of 1994, The State v. The Secretary, Public Service Commission & Another Ex-parte: Joeli Nabuka - unreported judgment of Scott J. dated 16th May 1995.
Wiseman v. Borneman (1971) AC 297.

The following additional cases were cited in argument:

J/R 13/94 The State v. Public Service Commission Ex-parte: Michael Raman - unreported judgment of Fatiaki J. dated 22nd March 1995.
R. v. Public Service Appeals Board Ex-parte: Hanif - unreported judgment of Kearsley J. dated 12th September 1986.
Furnell v. Whangarei High Schools Board (1973) 1 ALL E.R. 400.
J/R 5/92 R. v. Transport Control Board Ex-parte: City Transport Limited - unreported judgment of Fatiaki J. dated 1st October 1993.
J/R 30/89 Reliance Transport Bus Service v. Transport Control Board - unreported judgment of Byrne J. dated 17th January 1991.

HBJ0027J.95S