On 16th March 2000 the Respondents filed the affidavit of a Senior Superintendent Sada Nand, inonse. The hearing whig which preceeded on
the basis of written and oral submissions, was held on 19th May 2000. Botnsel made helpful submisubmissions which assisted the court.
: 1"> The facts of the case are laid out in the affidavit material. The Applicant was aped a pd a police constable in March 1995, after
graduating from the Police Academy. In October he was posted tted to the Command Centre at the Nabua Police Station and to the Traffic
Secat the Central Police StatiStation.
In December 1998 the Applicant was on sick leave 29th December to 31st December inclusive. On 30th Dep> December, whilst on sick leave, the Applicant travelled by boat to Ogea. He returned to work on 4th January 1999 and became ill again.
He was given a default charge of malingering as a result of his trip to Ogea. He was dealt withhis c bute but was also charged with
Neglect of Duty under nder the Police Regulations. He pleaded g.
On 14th May 1999, he was was asked to show cause why he should not be discharged from the Police F On 21st Jup> July 1999 after the Applicant had made representations showing cause (Annexure E to the Applicant’s affidavit) the Divisional
Police Commander Southern informed the Officer in Charge of the Central Police Station that the Applicant had been dismissed from
the Force.
On 28th July 1999 the Applicant the Commissioner to reconsider his position.
On 29th July 1999, the Commissioner wrote to the Disciplined Services Commission in the following terms:
“The above-named constable was defaulted on a disciplinary charge of Neglect of Duty, contrary tolation 12(36) of the Policeolice
Regulation, Cap.85. The tribunund the constablstable guilty of the offence charged and recommended a forfeiture of 2 days pay.
Having regards to this constable’s disciplinary record within a period of 3 years, he was4/05/99 asked to show causecause as to why
he should not be discharged from the Police Force.
On 21/05/99, this constable made his representation expressing his regret of his pasords. He also felt a lt a deep ense of remorse
towards his past and promised that this will never happen in future.
p class=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> The Commissioner of Police having viewed his representaand taking into consideration his past records, dismissed Psed PC 2524 Iliesa
Vakarauwale from the Police Force under the provisions of Section 32(1)(A)(b) of the Police Act with effect from 16/07/99. The concurrence of thece Sice Service Commission is hereby sought to finalise the dismissal.
PC Iliesa joined the Fiji Police on 01/04/96 and his last posting was at Nasinu Police Station. Withiee years of service, ice, he
has been convicted on four (4) disciplinary charges excluding the current charge. Please refer to 30 and 31nd 31 in the Servegister.
The officer did not change after all the oppe opportunities he was granted.
I shall be grateful for the concurrence of the Disciplined Service Commission in this matterhe earliest, please. bsp; The Pal File
and the the Service Register of this constable is submitted herewith for your necessary action and return in due course, please.”
On 1st September 1999 the Applicant’s former solicitor wrote to the Commission telling the Secretary that the Applicant’s dismissal was
contrary to the Constitution 1997 and the Police Act.
On 11th November 1999, the Commission concurred with the Commissioner’s decision to dismiss the Applicant but said that the effective date
of dismissal was 20th September 1999. pplicant’s salary from 16th July to 20th September was refunded to him.
However on 15th November 1999, the Commissioner wrote to the Applisaying (Annexure L):
“This is to advise that the Coioner of Police on 1/09/99 wrote to the Disciplined Services Commission recommending your Dour Dismissal
from further services under the provisions of Section 32(1)(A)(b) of the Police Act Cap. 85.
The Disciplined Services Commission at its meeting on 27.10.99 having perused your file concurred with ommissioner’s recommendatiodation
to dismiss you from the Fiji Police with effect from 27.10.99.
You are to hand over all the kits and equipment issued to you to the Stationcer.”
The Applicant seeks to review this decision on the following grou/span>
&nbs> 1. &nnbsp;; & &nbbp; nbsp;nbsp;  an>The Commissioissioner’s er’s dismissal of the Apnt onup>th> Jul9 wasa virspan>/p> 2.
3. &nbbsp;& &nsp; ;&sp;; &&nsp;; &nnsp;& Than>That the Commissioner failed to give the Applicant the opportunitbe heeforeas died; 4.;
>
The dismissal of 16th July 1999
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Section 14(1) of the Police Act Cap 85 providesan>
“Any police officer other than a gazetted officer, mayischarged by the Commissioner at any time .....<
(c) p;&nssp; p; &nbp; &nbp;
Provided that the discharge under the provisions of this subsection of any such police officer shall be subject to the concurrence
of the Police Service Commission.”
The former Police Service Commission has now been replaced by the Disciplined Services Commission, provided for by section 153 of
the Constitution Amendment Act 1997. Section 153(2)(a)he Constionstitution provides that:
“The exercise by the Commissioner of Police of his or her powers to:
(a) remove a person from the Fiji Police Force requires the concurrence of the Disciplined Ses Commission.”<
It is not clear from the police correspondence, whetherApplicant was dismissed for neglect of duty under section 32(1)(A)(b) of the
Police Act, ort, or that the Applicant had ceased to be an efficient police officer under section 14 of the Act.
However, counsel for the Commissioner submits that the reference to section 14 was an error on the part of the Director of Complaints
and that the dismissal was actually effective under section 32 of the Act.
Neglect of Duty is an offence under Regulation 12(36) of the Police Regulations. The Applicant pleaded guilty to this charge on 16
March 1999. articulars of the offence ence (at Annexure B to Sada Nand’s affidavit), are that “on 14.1.99 between 0700 hrs to 1500
hrs,st beranted sick leave failed to inform your Unit IC p IC prior to proceeding on sick leave as r as required by FSO 83(3) an
offence under Regulation 12(36) of Cap 85.”
The Tribunal recommended forfeiture of 2 day as the appropriate penalty.
Section 32(1)(A) of the Police Act provides the Commissioner shall have power to impose punishments in the case of subordinate officers aers as follows:
(i) &nbbsp;&&nsp;;&nsp; ;&sp;; &&nsp;; &nadan>adan>admonishonishment;
langB>(iin styont:7"Times New Roman""> &nss; &bbsp nnbsp nbsp;&nbs; nbsp; p;&nbbp; reprimand;
(iii)& p;&nbbsp; &nbssp; &nbp; &nbp; &nsp;; bsp; severe rere reprimand;
(iv) ;&nbssp; &nsp; &nbs; &nb/p; cpaninement to quao quarters for any period not exceeding fourtees, wi withxtra ds, fatigues or other duty;
(v) &nnsp;&&nsp;;&nspp;&nssp;&nsp; a fot enceeding sevg seven days pay;
(vi) &nbbsp;& &nsp; &nsp; &bsp; nbssp &&nbs;; rpan>reductiduction in rank;
(vii) p;&nbbsp;&nsp; &nsp; p; spanisismissal.”
Section 32on 32(1)(A(1)(A)(b) )(b) proviprovides that the punishment of dismissal shall be subject to the concurrence of the Police
Service Commission.
It is clear from the wording in section 32 of the Police Act, that a decision to dismiss a subordinate officer is invalid without theurrence of the Disciplined ined Services Commission.
Counsel for the Respondent concedes as much, but says that the invalidity was cured because the date of dismissal is accepted to be
the date on which the Disciplined Services Commission concurred with the dismissal. Thy be so.
th, and that insofar as the 1st Resnt purported to so dismiss miss the Applicant from 16th July 1999, in its memorandum to the Officer in Charge of the Central Police Station (Annexure “F” to the affidavit of the Applicant),
that dismissal was ultra vires and invalid.
The dismissal of 20th September 1999
nbsp; On 29th July 1999, the 1st Respondent obviously realising that it needed the concurrencthe Disciplined Services Coes Commission, wrote to the Commission seeking
concurrence “to finalise the dismissal.” The Commissit on 20thup>th September, and concurred as it had power to do, under section 153 of the Constitution. The Commi infothe Commissimissioner, that
the Applicant would be reimbursed his salary from 16/7/99 7/99 to 19/9/99.
The Applicant says that in reaching this decision, the Commission failed to give him an opportunity to bed. Counsel cited the the
recent decisions of the Fiji Court of Appeal in Permanent Secretary for Education and the Public Service Commission ex parte Epeli Lagiloa Civil Appeal No. ABU 0038 of 1998 and Permanent Secretary for Education ex parte Lepani Matea Civil Appeal No. 0016 of 1998 to support his submission that before imposing any penalty a disciplinary tribunal must provide the
officer with the opportunity to be heard on penalty.
That proposition is unarguable. However, in this case thliApplicant was given an opportunity to make submissions bepenalty was imposed,
and hend he took that opportunity to write representations to the Commissioner once, on 21st May 1999then on 28th Jul> July 1999. These very full submissin s in which he expressed remorse for his weakness for alcohol and “wrong company”. These
submns were considersidered by the Commissioner (Annexure H to the Applicant’s affidavit), and pears, by the Commission whon which
perused the Applicant’s personal file at its meeting of 20th September 1999. In parti, his Service Regi Register which showed the four disciplinary offences he had been convicted of (excluding
the immediate charge forwarded to the Commission.
The question is, should the Commission have gthe Applicant further opportunity to be heard? The facts of thie show thaw that a pola
police disciplinary tribunal was set up to hear the charge against the Applicant for Neglect of Duty. Tribunal recommended (and
(and it is not clear whether the Aant was given an opportunittunity to mitigate before the Tribunal) forfeiture of two days pay.
The Csioner who wished to d to p heavier penalty gave the Athe Applicant the opportunity to “show cause” why he should not be dismissed.
Although the Police Acsilent on the need to give that opportunity, rules of proceprocedural fairness require this step to be taken.
The right to be hdoes ecesnecessarily mean the right to an oral hearing (unless statute provides for one).&ne). In thse, I consider
the Cohe Comoner to have acted fairly in giving the Applicant the opportunity to make full written repr representations twice. Indeed
the s set presentatentations post-dated the purported “dismissalissal” of 16th July, which suggests that all parties were aware the dismissal was not yet set in stone.
Having followed these procedures, and having forwarded the Applicant’s representations to the Commission, was the Commission required
to give the Applicant opportunity to be heard?
The answer lies in the nature of the discretion exercised by ommission. The Oxford Advanced onary nary of Current English defines
the word “concuroncur” as “agree” or “expressly agree.”
There is no doubt that the Commission’s power to agree to the Commissioner’s recomtion to dismiss, was a power which had the potential
of advf adversely affecting the Applicant’s interests. There is also no dothat that the Disciplined Services Commission is a public
body performing public duties, and therefore has a duty to perform thonctions fairly. What constituterness, in t in the absence
of a constitutional or stat statutory procedure is a matter for the court to decide. As Woolf LJ saiR -v-R -v- Panel on Takeovers and Merges, ex p Guiness (1990) QB 146, “the court is the arbiter of what is fair.”
It was said in Wiseman -v- Borneman
“requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances ..... 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. Butre this unusual kind ofnd 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.”
The Fiji Court of Appeal in Public Service Commission -v- Lepani M/u> (CA 16/98) said:
“The requirement that a pebe given a fair opportunity to be heard before a body determines a matter that affects him 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 instrument setting up the deciding body requiring that such
a person be heard the common law will supply the omission. It will imply ight to be g be given a fair opportunity to be heard.
While theslative body may may exclude limit or displace the rule it must be done clearly and expressly by words of plain intendmentp;
Thention must be mabe made unambiguous/clear. Finally we add that is a fs a fair hearinearing will depend upon the circumstances
of each case; it does not mean that in every case a right of personal appearance must be given.”
In this case the Applicant was exposed to the possibility of the severest penalty possible under the Police Although he was hear
heard by written representations before the Commissioner’s recommendations were sent to the Commission, he was given no further opportunity
to ask for a lighter penalty before the Commission.
Although his personal file was sent to the Commission, there is no evidence that his representations were read and considby the Commission.
Thp; There ispecific evideevidence of the contents of the Applicant’s personal file, especially regarding his previous disciplinary
convictions, nor is there evidence that the statements of witnesses in respect of the Neglect of Duty charge were disclosed to the
Commission. Finally there is no evidthce that the Commission read any of the documents on the Applicant’s file.
In the circumstances I am of the view that the Commission failed to airly. Fairness required the Coioission to inform the Applicant
that it was consideriidering agreeing to the Commissioner’s recommendation for dismissal, that it had perused his representations,
his previous convictions and the circumstances of the Neglect of Duty charge, and that he had an opportunity to make further representations
to the Commission. Concurrence is not a rubber-stamp. It is the exercise of aretscretion with potentially adverse consequences
on the person affected.
The failure of the Commission to act in a way that was procedurally fair, was in my view, fatal to thesion to dismiss. The The dismiof
the AppliApplicant of 20th September 1999 is quashed.
It is therefore not necessary to consider the other grounds argued by the Applicant, of arbitrariness and unnableness.
The Respondents must pay the Applicant’s costs which I set at $4span>
  Nazhat Shameem
JUDGE
At Suva
20th June 2000
HBJ0010J.00S
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