State v Government Printer, Ex parte Tonawai [1999] FJHC 98; Hbj0012j.1998s (26 August 1999)

Fiji Islands - The State v The Government Printer; Ex parte Tonawai - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. 0012 OF 1998

THE STAT STATE

V.

THE GOVERNMENT PRINTER
AND THE SECRETARY FOR PUBLIC SERVICE COMMISSION

EX PARTE DALE TONAWAI

Mr. I.V. i for the Athe Applicant
Ms. S. Tabaiwalu for the Respondents

JUDGMENT

The applicant was emd as a Senior Technical Assistant with the Government Printer until his dismidismissal on 26th March 1998. Prior to his dismissal and by way of relevant background I set out a brief chronology of the applicant's employment history in the Printing and Stationary Department:

(1) On 1.12.79 the applicant was appointed on probation for one year as a Technical Trainee in the Letterpress Section;

The applicant was subsequently confirmed in his appointment and worked for some eighteen (18) years in the Printing and Stationary Department rising to the rank of Senior Technical Assistant (Printing) with effect from 20th October 1993.

Six (6) months after the applicant's promotion, his attendance at work and punctuality began to deteriorate on an almost daily/weekly basis for the next three (3) years. This behaviour was the subject matter of several warning letters of varying degrees of seriousness and severity from the applicant's supervisors.

(2) On 17.3.97 disciplinary charges were laid against the applicant alleging amongst others, unauthorised absences from work and failing to improve his attendances at work despite various written warnings and requests;

(3) 2.4.97 the applicant submitted a written explanation to the above charges in which inter alia he made derogatory remarks about the racial composition of the section in which he worked and the treatment of other indigenous officers by the section supervisor;

(4) 10.4.97 the Government Printer referred the papers to the Permanent Secretary Finance and Economic Development with his personal comments and recommendation that '(the applicant) be dismissed from the service immediately';

(5) 29.5.97 the Permanent Secretary advised the applicant of PSC's decision (i) 'to deduct 13 weeks salary due to unauthorised absences'; and (ii) the applicant was 'given a final warning' to improve himself in the next 6 months or face summary dismissal;

Over the next six (6) months the applicant's attendance and performance did not improve as assessed by the Government Printer who decided to charge the applicant.

(6) 16.2.98 a single major charge of a disciplinary offence contrary to Regulation 36(b) of the PSC (Constitution) Regulation was laid against the applicant and his written response sought 'within 14 days'.

(7) On 26.2.98 the applicant provided a written explanation and sought 'reconsideration of the charge' and he 'be given a better working environment ......'

(8) By memo signed by the Government Printer and dated 24.3.98 the applicant was 'found guilty as charged' and was 'dismissed from the service ... in accordance with Regulation 51(1)(a) of the PSC (Constitution) Regulations, 1990.

(9) On 3.6.98 the applicant sought leave to issue judicial review proceedings;

and

(10) On 17.7.98 State Counsel conceded leave.

The applicant challenges his dismissal on three (3) grounds as follows:

(1) That in dismissing him the Government Printer acted as 'prosecutor, judge and executioner in the disciplinary proceedings taken against him'; (the 'bias' ground)

(2) That there was a breach of natural justice in the Government Printer's failure to give him an opportunity to be heard on the questions of guilt and punishment (the 'breach of natural justice' ground); and

(3) That the Government Printer in exercising his delegated powers under Legal Notice No. 138 of 1997 was in breach of the applicant's constitutional right to be tried by 'an impartial and independent tribunal' (the 'constitutional' ground).

For convenience and brevity, I propose in this judgment to deal with grounds (1) & (3) together as they are undoubtedly related insofar as they seek to challenge the lawfulness of the Government Printer's actions taken pursuant to Legal Notice No. 138 of 1997 (the 'Legal Notice') wherein, with effect from 1st January 1998, the Public Service Commission ('PSC') delegated amongst others, its disciplinary powers to Permanent Secretaries and Heads of Departments 'in respect of all occupational groups ... in grades AD01 and equivalent and below ...'

In particular, item 13 of Schedule 'A' to the Legal Notice nominates the Government Printer as the person within the Printing and Stationery Department, to whom PSC's powers were delegated.

The specific disciplinary powers delegated by PSC are:

(vii) (to) interdict ... under Regulation 42 of the PSC (Constitution) Regulations 1990;

(ix) (to) appoint a disciplinary tribunal under Regulation 44 of the PSC (Constitution) Regulations 1990;

(x) (to) impose any of the penalties under Regulation 51 of the PSC (Constitution) Regulations 1990; and

(xv) (to) determine termination of appointment ... in accordance with the PSC (Constitution) Regulations 1990.

Counsel for the applicant complains that 'this delegation of power allows for (the Government Printer) to be prosecutor and judge in his own cause ...'

Counsel for the respondents argues however that 'they had proceeded regularly according to ... (the) disciplinary procedures laid out in Regulation 41 of the PSC (Constitution) Regulations 1990' in so far as the applicant was properly charged in writing with a major offence contrary to Regulation 36(b) of the PSC (Constitution) Regulations and was given fourteen (14) days to 'admit or deny the charges'. He was also asked to 'provide in writing ... any explanation you think will enable proper consideration to be given to the charges' and 'an explanation why you should not be dismissed from the service'.

In so far as the complaint of 'prosecutor and judge' is concerned Counsel writes:

'As to the requirements stated in Regulation 41(5) [re: submission of the documentary evidence and report to PSC] and (6) [re: PSC conducting further enquiries and being satisfied as to the truth of the charge], the Respondents argue that pursuant to (the Legal Notice) the PSC's powers ... were delegated to the Government Printer ...'

Furthermore:

'... a disciplinary tribunal as required in Regulation 41(8), was not appointed, as, pursuant to (the Legal Notice), the (Government Printer) was delegated the power to discipline employees thus the non appointment or requirement of a disciplinary tribunal' (whatever that may mean).

Quite plainly the respondents rely on the delegations under the 'Legal Notice' to justify the procedure adopted by the Government Printer in dismissing the applicant.

It is undisputed that the disciplinary charge against the applicant was presented and signed by the Government Printer as he was entitled to do in terms of Regulation 41(1) of the PSC (Constitution) Regulation 1990. In doing so however the Government Printer was plainly adopting the role or character more commonly associated with a 'complainant/prosecutor'.

It is also undisputed that the decision to dismiss the applicant along with the dismissal letter was taken and signed by the Government Printer as he was undoubtedly empowered to do in terms of the delegation provided for in the 'Legal Notice'. In this regard the Government Printer undoubtedly acted in the role of an 'investigator/judge'.

In so acting in his dual capacities I am satisfied that the Government Printer acted in breach of 'one rule of natural justice which is so old that it can be put in the Latin language: Nemo judex in causa sua' [per Scarman L.J. in R. v. Barnsley MBC ex-parte Hook (1976) 3 ALL E.R. 452 at 459] which, literally translates into 'no one shall be a judge in his own cause'.

In the same case Lord Denning M.R. said ibid. at p.456:

'It is contrary to natural justice that one who is in the position of a prosecutor should be present at the deliberations of the adjudicating committee.'

A fortiori where the prosecutor is also the sole adjudicator, as occurred in this case.

In similar vein Cotton L.J. said in Leeson v. General Council of Medical Education and Registration [1889] UKLawRpCh 200; (1889) 43 Ch.D. 366 at 379:

'Of course the rule is very plain that no man can be plaintiff or prosecutor, in any action, and at the same time sit in judgment to decide in that particular case - either in his own case, or in any case, where he brings forward the accusation or complaint on which the order is made.'

[See also: per A.L. Smith J. in R. v. Gaisford [1891] UKLawRpKQB 193; (1892) 1 Q.B. 381 at p.384.]

Finally in a case which also involved a delegated authority, in R. v. The London County Council ex-parte Akkersdyk [1892] UKLawRpKQB 87; (1892) 1 Q.B. 190 where the respondent council had delegated to a sub-committee the hearing of an application for a music and dancing licence and the sub-committee had recommended that the licences should not be granted to the applicant and where at the hearing of the full-council which refused the application, four (4) members of the sub-committee also sat albeit that the four councillors did not vote.

Nevertheless, A.L. Smith J. in setting aside the decision of the full-council said at p.195:

'In our judgment, (the London County Council when deciding applications for licences) are not emancipated from the ordinary principles upon which justice is administered ..., and which are, as it has been said, founded on its very essence ... Then why is an adjudication in which gentlemen have acted both as judges and accusers ... to be upheld? There is a sequence of authority holding that it cannot be.'

I am further fortified in this view by the recent judgment of Scott J. in The State v. Permanent Secretary for Justice and Secretary, Public Service Commission ex-parte Metuisela Waqanisau Judicial Review No: 30 of 1998 (unreported) delivered on 30th June 1999 where, in upholding an identical complaint as in ground (1) (op. cit.), and in setting aside the dismissal in that case, his lordship said (at p.6):

'In the present case the 1st Respondent apparently thought that he could exercise all the powers conferred on the Commission by Part V of the Regulations by virtue of the delegation to him of powers in Legal Notice 138/1997. In my opinion, although the delegation is somewhat ambiguous, he was mistaken. I reach this conclusion for two reasons.

First, the Commission's powers which are delegated to Permanent Secretaries are specified by and limited to those powers which are set out in paragraph 2(i)-(xv) of the delegation. Although the (specified) powers ... were delegated the general powers of the Commission under Part V were not.

Secondly, the general scheme of Part V, as has already been seen, involves the prosecution or presentation of charges by a Departmental Head, usually a Permanent Secretary, to the Commission which then considers the charges laid. Mr. Tuberi's case was that the procedure adopted by the 1st Respondent amounted to the 1st Respondent acting both as prosecutor and judge in the same cause and as such fundamentally breached one of the major rules of natural justice: nemo judex in causa sua. I agree. In my opinion it was quite wrong for the same person, ..., to charge the Applicant, to investigate his own complaint, to determine its truth and then impose sentence. The procedure adopted ... was, in my opinion, inconsistent and incompatible with the requirements of Part V of the Regulations and was therefore fatally and incorrigibly flawed.'

Specifically however, I am satisfied given the Government Printer's prior role and dealings with the applicant leading up to the present charge (viz: at (2) to (5) above) and, in particular, his earlier unsuccessful recommendation that the applicant be immediately dismissed, that there exists 'a real likelihood of bias' on the part of the Government Printer sufficient to avoid his decision.

As was said by Eve J. in Law v. Chartered Institute of Patent Agents (1919) 2 Ch. D. 276 at p.290:

'A person who has a judicial duty to perform is disqualified from performing it if he has a bias which renders him otherwise than an impartial judge, or if he has so conducted himself in relation to the matters to be investigated as to create in the mind of a reasonable man a suspicion that he may have such a bias.'

and, per Lord Denning M.R. in Metropolitan Properties v. Lannon [1968] EWCA Civ 5; (1969) 1 Q.B. 577:

'in considering whether there is a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit (in judgment). And if he does sit, his decision cannot stand.'

In light of the foregoing the applicant's first ground of complaint is well-taken and must be upheld. The application is granted and certiorari shall issue to bring up and quash the decision of the Government Printer dismissing the applicant.

Needless to say it is no part of the court's function in judicial review proceedings to determine the merits of the applicant's dismissal, only the process or procedure adopted to effect it, which has been found seriously wanting in this instance, however, as the charge is serious, I propose, as did Scott J. in the above case, to order the referral of the charge to the PSC to be dealt with according to law.

D.V. Fatiaki
JUDGE

At Suva,
26th August, 1999.

Hbj0012j.98s