State v Permanent Secretary for Education & Technology, Ex parte Buwawa [1999] FJHC 46; Hbj0030j.1997s (14 June 1999)

Fiji Islands - The State v The Permanent Secretary for Education and Technology, Ex parte Buwawa - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW

ACTION NO. HBJ0030 OF 1997

STATE

v.

THE PERMANENT SECRETARY FOR EDUCATION AND TECHNOLOGY
AND THE SECRETARY FOR PUBLIC SERVICE COMMISSION

EX-PARTE: JIMIONE BUWAWA

I.V. Tuberi for the Applicant
D. Singh for the Respondents

Dates of Hearing and Submissions: 10th July, 7th, 21st, and 27th August 1998
Date of Judgment: 14th June 1999

JUDGMENT

This application for Judicial Review following leave granted on the 10th of July 1998 raises yet again the rights of employees of the Public Service Commission against whom disciplinary action has been taken to claim denial of natural justice under the Public Service Commission (Constitution) Regulations, 1990 and particularly under Regulations 36 and 41.

The Applicant seeks review of a decision of the Public Service Commission dated 2nd September 1997 to demote him from the substantive post of Principal TE01 to that of Senior Education Officer AD02.

Until his demotion the Applicant was the Principal of the co-educational Ratu Kadavulevu School, Lodoni, Tailevu.

On the 2nd of July 1996 he received a Memorandum charging him with two major offences under Regulation 41(1) of the Regulations, the offences allegedly being in breach of Regulation 36 of the Regulations and so far as relevant read as follows:

"Charge 1

That you, Jimione Buwawa, while employed as the Principal of Ratu Kadavulevu School on the night of the 11th April, 1996 were found drunk and in the company of a female fellow staff and you were rescued by your students from the van you were driving which had fallen into a ditch in the school compound.

You therefore committed a disciplinary offence under Regulation 36(1) of the PSC (Constitution) Regulations, 1990.

Charge 2

That you, Jimione Buwawa, while employed as Principal of Ratu Kadavulevu School did on the 16th April, 1994 go on a drinking spree with 2 female and 2 male fellow staff members overnight, and you claimed unauthorised leave for and did not attend to duties on the following day of 17th April, 1994.

You therefore committed a disciplinary offence under Regulation 36(1) of the PSC (Constitution) Regulations, 1990."

The Memorandum then informed him that he was required within 14 days to state in writing whether he admitted or denied the truth of the charges and further to give the Permanent Secretary for Education, Women and Culture written explanations to enable proper consideration to be given to the alleged offences.

The Memorandum then concluded by saying that if the Applicant did not deny the truth or otherwise of the charges within that time, in accordance with Regulation 41(3) he would be deemed to have admitted the truth of the charges and liable to one or more of the penalties specified in Regulation 51.

On the 8th of July 1996 the Applicant sent a brief reply to the charges simply denying them

On the 3rd of Septe1996 he received a Memorandum dated 2nd September 1996 appending amended disciplinary chargcharges. These read as follows:

"Charge 1

THAT you, Mr. Jimione Buwawa on 11 April, 1996, while employed in the civil service as Principal of Ratu Kadavulevu School, Tailevu conducted yourself in a manner that brought disrepute to the Public Service, in that you were found drunk in the company of female staff in compromised circumstances.

You therefore committed a disciplinary offence under Regulation 36(t) of the Public Service Commission (Constitution) Regulations, 1990.

Charge 2

THAT you, Mr. Jimione Buwawa on 16 April, 1996, while employed in the civil service as Principal of Ratu Kadavulevu School, Tailevu conducted yourself in a manner that brought disrepute to the Public Service, in that you accompanied two female officer staff of the school on an overnight drinking spree prejudicing your duties.

You therefore committed a disciplinary offence under Regulation 36(t) of the Public Service Commission (Constitution) Regulations, 1990.

Charge 3

THAT you, Mr. Jimione Buwawa on 17 April, 1996, while employed in the civil service as Principal of Ratu Kadavulevu School, Tailevu, absented yourself from duty without leave or valid excuse.

You therefore committed a disciplinary offence under Regulation 16(i) of the Public Service Commission (Constitution) Regulations, 1990."

Regulation 36(t) relates to improper conduct in a public servant's official capacity or any other conduct which is likely to affect adversely the performance of his duties or to bring the Public Service into disrepute.

Again he was given 14 days in which to acknowledge in writing whether he admitted or denied the truth of the charges and that unless he replied within that time he would be deemed to have admitted the truth of them.

On the 12th of September 1996 the Applicant sent a reply to the amended charges to the First Respondent in which he denied them and gave particulars in the following terms so far as relevant:

"Charge 1

I was in Korovo11/4/96 and and after seeing my wife in the Hospital, I returned to RKS in a hired van.

At school the van fell into a ditch through the driver's own doing. I called a few students to help the driver pull the van out of the ditch whilst I waited for him before going home.

In brief I was not drunk as alleged as I don't take liquor.

I categorically deny that at anytime was I in the company of a female staff in "compromised circumstances". This is total speculation and hearsay. The term also is too general to be true for anyone.

At no time did I act irresponsibly or abusively to anyone.

I categorically deny the charge that I "brought disrepute to the Public Service" as alleged. The strong support from the school's Board of Governors, PTA, Old Scholars, Teachers and students truly dispute the said allegation.

Charge 2

I categorically deny the charge that I "brought disrepute to the Public Service". Again, any possible likelihood of any disrepute could only have arisen through the conspiracy activities of the junior officers that interviewed people, based on hearsay, behind my back. The procedure of the investigations by officers from Head Office plus the character assassination against me by one or two officers at the school, contributed to defamation.

One of the teachers invited me to his home for a birthday party on 16/4/96. I attended out of respect for the teacher. Females, including teachers wives were in the birthday party. At 11.00 a.m. I advised the teachers to round off the party and I excused myself to leave for home in a teacher's car.

I categorically deny that the birthday party was an "overnight drinking spree."

Charge 3

I applied for compassionate leave on 18/4/96 for my absence on 17/4/96 because my wife was sick in hospital.

Approval for my leave was granted by the Divisional Education Officer Central.

Surprisingly the approval was withdrawn about a month later on 12/6/96. This is indicative of the destructive agenda perpetuated against me."

On the 26th of September 1996 the Applicant received a letter dated 25th September from Mr. Jon L. Apted informing him of his appointment as a Disciplinary Tribunal to hear the allegations against him. This caused the Applicant to consult his solicitor and correspondence then ensued between Mr. Apted and the Applicant's solicitor.

On the 4th of October 1996 the Disciplinary Tribunal had a meeting with the Applicant, his solicitor, a member of the staff of the Ministry of Education and a Mr. S. Idris from the

Attorney-General's Chambers at which he alleges the Respondent agreed that the first two of the amended charges were defective.

On the 21st of October 1996 the Applicant received a Memorandum dated the 15th of October from the Permanent Secretary for Education containing three amended charges which so far as relevant read as follows:

"Charge 1

THAT you, Mr. Jimione Buwawa on 14th April, 1996 while employed in the civil service as Principal of Ratu Kadavulevu School, Tailevu were found in the vicinity of the Form 7 students dormitory at about 8.00 p.m. in the company of a subordinate female staff - Sala Matawa in a compromising position and in a state of delirium tremens inside a van. You were taken into the students dormitory where you were put in bed by the students until around 12.00 midnight when you were accompanied to your house. Such improper conduct constitutes a disciplinary offence within the terms of Regulation 36(a), (f) and (t) of the Public Service Commission (Constitution) Regulations, 1990.

Charge 2

THAT you, Mr. Jimione Buwawa on 16th April, 1996 while employed in the civil service as Principal of Ratu Kadavulevu School, Tailevu went on an overnight drinking spree at Vatuwaqa along with two of your subordinate female staff Josivini Vulivuliqele and Vitinia Rogorogovou as a result of which you were heavily drunk and could not attend office the following day 17th April, 1996. You also abused your official capacity by unduly influencing the two female not to attend office on the same day. Such improper conduct constitutes a disciplinary offence within the terms of Regulations 36(e), (f) and (t) of the Public Service Commission (Constitution) Regulation, 1990.

Charge 3

THAT you, Mr. Jimione Buwawa on 17th April 1996 employed in the civil service as Principal of Ratu Kadavulevu School, Tailevu absented yourself from duty without leave or valid excuse and on the 18/04/96 attempted to regularise your absence through giving false information. Such improper conduct constitutes a disciplinary offence within the terms of Regulation 36(j) & (t) of the Public Service Commission (Constitution) Regulation 1990."

Following this on the 23rd of October 1996 the Applicant's solicitor wrote to the Permanent Secretary for Education responding to the charges and alleging that they were void for duplicity. He invited the Permanent Secretary to withdraw the charges but the Permanent Secretary declined by letter dated the 5th of November 1996.

After another letter from the Applicant's solicitor dated 6th November 1996 the Attorney-General's Chambers wrote to the Applicant's solicitor on the 13th of November advising him that the latest charges would be amended by deleting any reference to failure of the Applicant to comply with the Public Service Decree and its Regulations, using intoxicating liquor to excess so as to affect adversely the performance of his duties and behaving in a manner calculated to cause unreasonable distress to other employees and under charge 3 deleting any reference to improper conduct in his official capacity.

Summarised, the result of these amendments was to charge the Applicant with improper conduct and absenting himself from work without leave or valid excuse.

Further correspondence then took place between the Applicant's solicitor and the Public Service Commission culminating in a Memorandum dated 18th December 1996 headed "Disciplinary Charges" and reading as far as relevant thus:

"It has been brought to my attention that you on or about the 11th and 16th April, 1996 conducted yourself improperly which is likely to bring the Public Service into disrepute and you absented yourself from duties without leave on 17/4/96. As such you have committed offences liable for disciplinary proceedings under Regulations 36 of the Public Service Commission (Constitution) Regulations, 1990.

Pursuant to Regulation 41(1) of the Public Service (Constitution) Regulations, 1990 I have decided to charge you for committing major offences.

You are charged as follows:

Charge 1

THAT you, Mr. Jimione Buwawa (TPF 7026), employed as Principal of Ratu Kadavulevu School in the Ministry of Education, Women and Culture, did commit a disciplinary offence within the meaning of Regulation 36(t) of the Public Service Commission (Constitution) Regulations, 1990 in that on 11 April, 1996 you were found drunk in the company of a female staff in compromised position and you thereby conducted yourself in a manner likely to bring disrepute to the Public Service.

Charge 2

THAT you, Mr. Jimione Buwawa (TPF 7026), employed as Principal of Ratu Kadavulevu School in the Ministry of Education, Women and Culture, did commit a disciplinary offence within the meaning of Regulation 36(t) of the Public Service Commission (Constitution) Regulations, 1990 in that on 16 April, 1996 you accompanied two female office staff of the school on an overnight drinking spree prejudicing your duties and you thereby conducted yourself in a manner likely to bring disrepute to the Public Service.

Charge 3

THAT you, Mr. Jimione Buwawa (TPF 7026), employed as Principal of Ratu Kadavulevu School in the Ministry of Education, Women and Culture, did commit a disciplinary offence within the meaning of Regulation 36(j) of the Public Service Commission (Constitution) Regulations, 1990 in that on 17 April, 1996 you absented yourself from duty without leave."

On the 30th of December 1996 the Applicant's solicitor wrote to the Permanent Secretary for Education stating that the Applicant again declined to answer the first two charges because they lacked the necessary elements of time, place of alleged offence and name of female staff involved.

On the 9th of January 1997 the Permanent Secretary wrote to the Applicant's solicitor requiring the Applicant to answer the charges and inviting him, if he was so inclined, to apply to the High Court for declarations that the charges were defective. This the Applicant eventually proceeded to do on the 17th of January 1997 but meanwhile on the 9th of January the Permanent Secretary wrote to the Applicant's solicitor stating that the possibility of the Applicant's charges being referred to a Disciplinary Tribunal had not been ruled out and that one would be appointed expeditiously if necessary to hear the evidence and find the facts.

The Applicant duly applied to the High Court but on the 22nd of July 1997 Pathik J. dismissed the Originating Summons on the ground that the Applicant's case came essentially within the purview of Judicial Review.

On the 8th of September 1977 the Permanent Secretary wrote to the Applicant and I quote this letter in full as evidence of what I strongly suspect that after Pathik J.'s judgment the Ministry had had enough of the Applicant, perhaps I should add not entirely unreasonably because of the persistence of the Applicant's solicitor.

"08/09/97

Mr. J. Buwawa, Ratu Kadavulevu School
ufs Chief Education Officer (Secondary)

RE: DISCIPLINARY ACTION: DOWNGRADING AND REGRADING

On 03/09/97 Public Service Commissioner Hector R. Hatch considered the following:

(a) The Permanent Secretary's report dated 29/08/97 on this case;

(b) The three disciplinary charges laid against you by the Permanent Secretary for Education & Technology vide his memorandum reference CPF 7026 of 18/12/96;

(c) After the receipt of the charges you had sought the High Court's approval through Civil Action No. 19/97 to declare the charges defective;

(d) The High Court's Judgment dated 22/07/97 in Civil Action No. 19 of 1997 whereby the Court had cleared the way for the Ministry and the Commission to continue with and finalise the disciplinary proceedings against you;

(e) The Judgment in (d) above had given you the option to continue with legal proceedings by way of a Judicial Review but that you had not initiated any action in this regard by 03/09/97;

(f) On 06/08/97 the Permanent Secretary for Education & Technology had given you, through your solicitor, Mr. I.V. Tuberi, a period of seven days to respond to the charges, this being in addition to the 14 days you were allowed initially when the charges were served on you;

(g) On 07/08/97 your solicitor, Mr. I.V. Tuberi, informed the Permanent Secretary in writing that you will continue to resist and protest answering the charges unless the charges were amended;

(h) You had by your own choice refused to answer the charges anmit an explanation.

After carefully evaluating the evidence before him Commissioner Hatch concluded that there was no need to conduct any further inquiry or investigation as the evidence on hand adequately corroborated the charges and he was satisfied as to the truth of the charges.

You were found guilty as charged.

Acting under the powers delegated to him by the Public Service Commission vide Legal Notice no. 126 of 1996 Commissioner Hatch decided that you, Mr. J. Buwawa, Principal, Ratu Kadavulevu School, currently on interdiction on half salary, be downgraded and regraded to be a Senior Education Officer in the grade AD02 on the first incremental step above the minimum of the grade with effect from 03/09/97, the date of this decision, in accordance with Regulation, 51 - 1(b) of the Public Service Commission (Constitution) Regulations, 1990.

With regard to your salary status on interdiction the Commissioner decided that you will not be paid anything more than the salary you have already received from the date of interdiction to the date of your downgrading and regrading. Regulation 42(5) of the Public Service Commission (Constitution) Regulations, 1990 is relevant.

Arrangements are being made to transfer you to a Senior Education Officer post in due course."

Krish P. Singh

for PERMANENT SECRETARY FOR EDUCATION & TECHNOLOGY"

Thereafter, and perhaps one might say at long last the Applicant decided to seek Judicial Review.

In his submission on this he argued that the Public Service Commission had no right to delegate the Applicant's case to Commissioner Hatch on the ground that this was a judicial function and that on the authority of numerous cases, but particularly Barnard v. National Dock Labour Board [1953] EWCA Civ 5; (1953) 2 Q.B. 18 quasi-judicial disciplinary functions could not be delegated. He alleged that the power to charge the Applicant if necessary rested solely with the Public Service Commission and relied on Section 157(2) of the 1990 Constitution. When I granted leave on the 10th of July 1998 in an oral ruling I rejected this argument on the ground that by Section 127(3) of that Constitution the Public Service Commission had power to delegate any of its powers under the section including that of exercising disciplinary control over public servants to any public officer.

By Legal Notice No. 43 of the 6th of December 1996 these powers were delegated to Hector Rex Hatch. This was also the view expressed by Scott J. in his unreported judgment of the 29th of June 1998 in HBJ0038/98 The State v. The Permanent Secretary for Education and Technology and the Secretary for the Public Service Commission, Ex-parte: Ravindra.

Following Scott J. I held that the Commissioner had powers to delegate any of its powers and that that expression should not be restricted in the manner sought by the Applicant. I thought however that the Applicant might be on stronger ground in his claim that he had not received the particulars he had sought so often from the Respondents and that he was entitled to these.

On the 21st of August 1998 the parties appeared before me when I directed the Respondents to supply copies of the statements obtained by the Commissioner under Regulation 41, Sub-section 4 which says that the Permanent Secretary shall require those persons who have direct knowledge of the allegation to make written submissions concerning it, as I considered the Applicant should be appraised of these.

The statements were supplied on the 25th of August and are annexed to the final submission made by the Applicant on the 26th of August. These statements of the females concerned in the charges contradict the original denial of the Applicant in as much as they go into considerable detail about events on the 11th and 16th April 1996.

In my judgment the Commissioner should now appoint another tribunal, not Mr. Hatch, under Regulation 44(i). The powers of such a tribunal were considered by the Court of Appeal in Civil Appeal No. ABU0038 of 1996 - The Public Service Commission and the Permanent Secretary for Education v. Epeli Lagiloa in an unreported judgment delivered on the 28th of November 1997 and again by Scott J. in Ravindra's case (supra).

At page 16 of its judgment in Lagiloa the Court said:

"The applicable provision is so much of Regulation 41(6) as provides that, if the Commission after consideration of the reports and documents submitted to it under sub-regulation (5) and after such further investigation or enquiry as it considers necessary is satisfied as to the truth of the charge it may proceed to the imposition of a penalty. In our opinion the Commission, if it were minded to take this course was bound to give the Respondent an opportunity of being heard both on the question whether or not the charge had been established and on the question of penalty. The words to the effect that the Commission was bound to afford the Respondent an opportunity of being heard are not to be found, at least expressly, in the Regulation. But in accordance with the principles expounded by the Judges in the two passages which have been cited the law required the Commission to administer its statute on the basis that the rules of natural justice applied."

In the later decision of the Court of Appeal on the 29th of May 1998 on Civil Appeal No. ABU0016 of 1998 The Permanent Secretary for Public Service Commission and Another v. Lepani Matea the Court again considered the general applicability of the rules of natural justice to the disciplinary provisions of the Public Service Commission Regulations. On page 10 the Court said this:

"The requirement that a person be given a fair opportunity to be heard before a body determines a matter that affects him adversely is so fundamental to any civilised legal system that it is to be presumed that the legislative body intended that a failure to observe it would render the decision null and void. If there are no words in the instruments setting up the deciding body requiring that such a person be heard the common law will supply the omission. It will imply the right to be given a fair opportunity to be heard. While the legislative body may exclude limit or displace the rule it must be done clearly and expressly by words of plain intendment. The intention must be made unambiguously clear. Finally we add that what is a fair hearing will depend upon the circumstances of each case; it does not meant that in every case a right of personal appearance must be given."

In Ravindra's case at page 4 of his judgment Scott J. said:

"While there is as yet no absolute right to be physically present and heard during the proceedings at either the guilt determination or the penalty determination stage it is clear the an appropriate degree of audience must be afforded."

One thing is clear to me from this case that because of the very belated tendering of the statements given to the investigators of the events in question but not the report of the Vice Principal, Mr. George Tabua, the Applicant should be given an opportunity to question the persons concerned and I consider should be given a copy of the Vice Principal's report. I can only make a recommendation to this effect but I do so in the hope that once and for all the very protracted proceedings between the Applicant and the Commission can be brought to an end expeditiously. In my judgment the Applicant should be given an opportunity to cross-examine the persons who have made statements against him but as I understand the Regulations stand at the moment no such right is given expressly. However Regulation 44(1) states that a Disciplinary Tribunal shall hear the evidence and find the facts. It seems to me this must include by implication the right to cross-examine and this should be available to both sides.

In the result I am of the opinion that the Applicant has been denied natural justice and that certiorari should go to quash the decision of the Public Service Commission of the 3rd of September 1997. The Respondents must accordingly pay the Applicant's costs.

Finally I express my concern at the protracted nature of the proceedings between the Applicant and the Commission. In many respects I consider that they became bogged down in too much legalese and misunderstanding about the way in which charges should be preferred and the rights of the Commission to charge and discipline its employees. Hopefully lessons can be learned by both sides in this case so that any future such cases can be disposed of promptly, albeit fairly, to the parties involved.

JOHN E. BYRNE
JUDGE

Cases referred to in Judgment:

Barnard v. National Dock Labour Board [1953] EWCA Civ 5; (1953) 2 Q.B. 18.

Civil Appeal No. ABU0038 of 1996 The Public Service Commission and the Permanent Secretary for Education v. Epeli Lagiloa - unreported judgment of Court of Appeal of 28th November 1997.

Civil Appeal No. ABU0016 of 1998 The Permanent Secretary for Public Service Commission and Another v. Lepani Matea - unreported judgment of Court of Appeal of 29th May 1998.

The State v. The Permanent Secretary for Education and Technology and the Secretary for the Public Service Commission, Ex-parte: Ravindra HBJ0038/98 - unreported judgment of Scott J. of 29th June 1998.

The following additional cases were referred to in submissions:

Abbot v. Sullivan (1952) 1 ALL E.R. 226.

Hawkes Bay Raw Milk Co-operative Co. Limited v. New Zealand Milk Board (1961) NZLR 218.

Lee v. Showmen's Guild of Great Britain (1952) 2 Q.B. 329.

The Fiji Sugar Corporation Limited v. Mohammed Ismail Civil Appeal No. 28 of 1987 - unreported judgment of Court of Appeal dated 8th July 1988.

The State v. Public Service Commission, Ex-parte: Michael Raman Chinnaiya Judicial Review No. 0031 of 1996 - unreported judgment of Fatiaki J. dated 11th February 1998.

HBJ 4 of 1998 The State v. Attorney-General and Tax Agents Registration Board, Ex-parte: Sultan Ali - unreported judgment of Scott J. of 9th July 1998.

HBJ27 of 1997 The State v. Attorney-General of Fiji, Ex-parte: Josefa Matau - unreported judgment of Pathik J.

HBJ0027 of 1995 The State v. Attorney-General of Fiji, Ex-parte: Josefa Nainima - unreported judgment of Byrne J. of 21st October 1997.

Stininato v. Auckland Boxing Association (1978) 1 NZLR 29.

Hbj0030j.97s