State v Acting Divisional Engineer Northern, Ex Parte Prasad [2003] FJHC 89; HBJ0003J.2002B (13 February 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0003 OF 2002

Between:

STATE

v.

1. ACTING DIVISIONAL ENGINEER NORTHERN
2. ATTORNEY GENERAL OF FIJI
Respondents

Ex parte: NAREND PRASAD
Applicant

Mr. A. Kohli for the Applicant
Mr. R. Green for the Respondents

JUDGMENT

By motion filed on 19 June 2002 the applicant Narend Prasad s/o Ram Prasad had applied for leave to file judicial review of the decision of the Acting Divisional Engineer Northern (the ‘1st respondent’) of 19 February 2002 discharging him from employment effective from 21 February 2002.

On 24 June 2002 Fatiaki J (now Chief Justice) ordered the filing of affidavits in reply as well as written submissions. Hearing date was also given for 27 August 2002. Order of the Court was not fully complied with by both counsel, therefore, on 27 August 2002 further time to file and serve written submissions and hearing was set down for 25 September 2002 and hearing did take place on that day.

Decision impugned

The learned counsel for the respondent raised the point that the decision impugned in the application is that of the Acting Divisional Engineer Northern (ADEN) and not that of the Divisional Engineer Northern (DEN). He said that an appeal was lodged by the applicant from the decision of ADEN which was upheld by DEN. The decision of DEN was made on 5 April 2002 stating that his discharge still stands. Counsel submits that one cannot go outside pleadings.

I see no merit in this line of argument. It amounts to splitting hairs for after all the decision is that of the Divisional Engineer at first by an acting DEN and later on appeal by the Divisional Engineer Northern.

The applicant appealed against the said decision of the first respondent (acting DEN). By letter dated 5 April 2002 he received a reply from the Divisional Engineer Northern in the following terms:

“We have carefully gone through your appeal letter on the above quoted subject matter. It is noted your statement, the Gate Pass on 11/01/2002 and your running sheets on 11/01/2002 are contradicting and as such I wish to inform you that your discharge from employment till stands.”

For all intents and purposes this is the decision that is impugned.

Relief sought

(a) An order of certiorari to remove the said decision of 5 April 2002 into this Honourable Court and that the same be quashed.

(b) An order that termination of service be set aside.

(c) A Declaration that the respondent acted unfairly and/or abused his powers and/or acted in breach of applicant’s legitimate expectations and/or exceeded his jurisdiction in terminating the service of the applicant.

(d) Damages

(e) Further declarations and/or other relief.

(f) Costs.

Grounds of review

The applicant seeks judicial review upon the grounds that the respondent acted unfairly without giving the applicant an opportunity to be heard, abused his discretion and failed to take into consideration relevant matters, acted arbitrarily and/or unreasonably, exceeded his jurisdiction in that he had no powers to terminate the applicant, acted contrary to the legitimate expectations of the applicant in that he had been in employment for the last 5 years and that the alteration made on the running sheet were in fact made upon instructions from the applicant’s superior officer and acted in breach of natural justice in that he did not give the applicant the opportunity to be heard before imposing penalty.

About the applicant

The applicant was employed as a driver with the Public Works Department from 1997 until 21 February 2002. His employment was terminated on 21 February 2002. Facts relating to the circumstances in which he was terminated are set out in the applicant’s affidavit filed in support of the motion applying for judicial review and I do not wish to reiterate them.

Applicant’s submission

The learned counsel for the applicant submitted, inter alia, that although Jitoko (ADEN) deposes that the statement of the applicant was read to him and explained in Hindi and that the applicant confirmed that it was correct, the minutes of Inspecting Officer Narend Naidu suggests otherwise. There is no affidavit from Narend Naidu. The affidavit on which ADEN relied so much leaves much to be desired and cannot be relied upon in making a decision which concerns a person’s (the applicant’s) livelihood.

There is also a glaring discrepancy in the date when the farm was visited. Jitoko’s source of knowledge in this regard is not stated in his affidavit. Further in paragraph 6 Jitoko deposes that the applicant identified the spot where he claimed to unload the gravel, yet in the letter of dismissal he says that this cannot be substantiated. There was no affidavit from Ravasua, the applicant’s superior or from mechanical supervisor Bainimarama that gravel was unloaded on the farm. It is further stated in paragraph 6(b) of Jitoko’s affidavit that the basecourse gravel was supposed to be taken to Vunimanuca and in fact according to the running sheet it was taken there. The question arises as to where is the falsification amounting to serious act of indiscipline warranting summary discharge.

Counsel submits that had the applicant been given the opportunity to be present and heard he would have been able to explain, and matter could have been resolved or case handed over to police for investigation.

As for 200 litres of diesel, counsel submitted that the gate pass does not indicate that diesel was received by the applicant. There is no mention of vehicle Number GM216 on the gate pass either. The storeman’s letter says that no diesel was filled in a drum on 11 January 2002 or any other date. There is nothing to indicate that the security officer Samula checked the contents of the drum. The gate pass did not have the signature of the recipient.

In the light of the facts and the circumstances in which the applicant was, counsel submits that the ADEN acted unfairly in making the decision without giving the applicant the opportunity to be heard. This decision was upheld by the DEN on appeal to him.

Counsel further submits that ADEN acted arbitrarily and/or unreasonably. The DEN, he says did the same.

Finally, he submits that the DEN and ADEN both failed to give the applicant an opportunity to be heard before he was dismissed. Counsel referred to Court of Appeal cases on this aspect in support of his argument.

Respondent’s submission

An affidavit in reply to applicant’s said affidavit was sworn by Maciu Jitoko who was the ADEN and who did the investigation and dismissed the applicant. He outlined the steps he took before dismissal.

In his affidavit Jitoko admitted that certain evidence which came up on appeal were not available when he investigated.

He deposed that the applicant was given the opportunity to be heard in that he was interviewed and ‘he gave his statement voluntarily contrary to what is stated’ in his affidavit’.

The learned counsel for the respondent emphasized that the decision was made pursuant to clause 37 of Joint Industrial Council Agreement (JICA) and that the applicant was given the opportunity to make representation to rebut the charges. He denies that there was breach of natural justice or denial of it, Then he goes on to say that because this is a ‘major offence of a serious nature concerning the misuse of government property (funds) there is no breach of natural justice if the applicant was not heard’.

Consideration of the application

With the above background and bearing in mind both counsels’ submissions and the affidavit evidence before me I shall now consider the issue before the Court.

The purpose of judicial review is to review the decision-making process itself. The Court reviews the manner in which the decision was made. In a judicial review, as stated by Lord Fraser in In re Amin (1983 2 AC 818 at 829):

“It is made effective by the court quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer."

The question that arises here is whether there was any procedural impropriety in arriving at the decision impugned.

Further, as stated by Lord Templeman in Reg v Inland Revenue Commissioner Ex parte Preston [1984] UKHL 5; (1985) A.C. 835 at 862:

“Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers. Judicial review should not be granted where an alternative remedy is available."

In a judicial review courts ensure that administrative actions are intra vires and keep within the bounds of their authority. These actions will be ultra vires if they fail to comply with the requirements of certain statutes and by common law. It is important that administrative actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions must be reasonable; they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind, unless a statute, expressly or by clear implication provides a contrary intention.

The Court is required to consider whether the “process” by which the decision was reached is authorised or valid. The basic question is whether the decision-maker has acted intra vires or within the discretion conferred reasonably and fairly.

Part 10 of the JIC Agreement deals with discipline. Under clause 37, which is the discharge provision, it is provided that for a serious act of indiscipline an employee may be summarily discharged without notice on the authority of an officer-in-charge.

I agree with Mr. Kohli that here ADEN failed to give the applicant an opportunity to be heard. There is no evidence that he was called to clarify matters that needed clarification such as entries on the running sheet and the gate pass. Furthermore, he was not given an opportunity to comment on the letter of the supervisor or the minutes of Naidu dated 25 January 2002.

It is quite clear on the evidence before me that ADEN took into consideration irrelevant matters and did not consider relevant issues as borne out by the following submissions of Mr. Kohli with which I totally agree:

It is obvious that the ADEN did not take into consideration matters that he should have taken into consideration and did take into consideration matters that should not have taken into consideration for example he replied on the minutes of Narend Naidu which was neither signed by the applicant or Narend Naidu. He relied on the gate pass as evidence of receipt of the diesel when in fact the gate pass does not indicate that the diesel was received. He relied on the security officer’s letter as evidence that the applicant was transporting diesel when that letter is not dated and does not disclose the same. He failed to enquire from Peceli whether the gravel was unloaded in his farm. He failed to enquire whether the applicant had in fact travelled to Vunimanuca as entered on the running sheet.

It was the respondent’s duty to act fairly. In any review of a decision the court is concerned to evaluate fairness. Lord Hailsham L.C. has in Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155 at 1160 very succinctly put the essential function of judicial review thus:

“It is important to remember in every case that the purpose ... is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matter in question.”

It is the decision-making process which the courts will look closely and the ultimate decision to ascertain whether the decision-maker has acted fairly. One of the grounds of challenge in this case is that there was procedural impropriety.

In Council of Civil Service Unions v Minister for the Civil Service (1985) A.C. 374 at 408 Lord Diplock explained the parameters of this ground thus:

“I...describe the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because the susceptibility to judicial review under this head covers also the failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”

This ground deals with the process by which the decision was reached and not the outcome. Here the applicant is required to show that the decision was reached unfairly. This process is also called the ‘duty to act fairly’ or “natural justice”. The requirements of natural justice go to procedure adopted by the decision taken and the need to allow each party an opportunity to put his case. As Sir Thaddeus McCarthy said in Birss v Secretary for Justice [1954] 1 NZLR 513 at 523:

“there is no perfect recipe which covers for all cases what natural justice may require to be done. What is necessary in a particular case must be determined in the light of the facts of that case. In some nothing beyond ordinary administrative procedure will be called for; in others much more is necessary. When that is and what should be done is not always easy for a permanent head to decide, and it ill benefits us to be unduly technical or critical. In the final analysis we are concerned with what is fair, and that means fair between the persons concerned. In some situations, as Richardson J points out, a permanent head may have to act immediately and suspend without notice or without giving an opportunity for discussion”. (emphasis added)

Similar observations were made by Lord Lane C.J. in R v Commission for Racial Equality, ex parte Cottrell and Rothon (a firm) (1980) 3 All E.R. 265, 271 when he said:

“As has frequently been said, and there is no harm in repeating it, all that the rules of natural justice mean is that the proceedings must be conducted in a way which is fair to the firm in this case, fair in all the circumstances.”

I find that investigation into this case was most unsatisfactory. Both ADEN and DEN did not perform their duties of inquiring and investigating properly and fairly. The ADEN did not give the applicant the opportunity to reply to statements of other employees. The ADEN said that certain matters in writing which were in the appeal before DEN were not before him. What he would have done in such a situation it is difficult to say. What DEN took into account on appeal is not in evidence except the upholding of the dismissal. If the matter was so serious then it should have been handed to Police.

I am not oblivious of the fact that there is that clause 37 which allows for summary dismissal, and also that it is not that in every case that the person concerned should have the opportunity of being heard. However, I have borne in mind, inter alia, the following passage from the judgment of Tucker L.J in Russell v Duke of Norfolk (1949) 1 All ER 109 at 118 in coming to the conclusion to which I have come:

“There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been form time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case”. (emphasis mine)

In view of my comments and observations stated hereabove I find that there was procedural impropriety on this aspect of the case and therefore it is one of the grounds for allowing the application for judicial review.

On the facts and circumstances of this case it was incumbent on the respondent to give the applicant an opportunity to address the respondent on penalty as any decision given would have affected his livelihood. Not having done so there was a denial of natural justice. The authorities support this statement.

On this aspect in Sat Narayan Pal and Public Service Commission Civil Appeal No. 72 of 1998S the Court of Appeal said:

The authorities in this Court and the Supreme Court on this are clear. The judgments in the cases of The Permanent Secretary for the Public Service Commission and another v Lagiloa, Civil appeal 38 of 1996, and The Permanent Secretary for the Public Service Commission and another v Matea, Civil appeal 16 of 1998, have stated that, where the person’s livelihood is at stake, it is a breach of natural justice if he is not given the right to be heard.

It was summarised by this court in Matea’s case;

“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 instrument 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 on the circumstances of each case; it does not mean that in every case right of personal appearance must be given.” (emphasis mine)

On appeal by the PSC, the Supreme Court held:

“...the appeal on such a question is virtually hopeless. There are numerous authorities establishing, at common law, that where someone’s livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it.”

The submission by the Respondents’ counsel that the first Respondent acted intra vires under the said provision of the JIC Agreement and did not have to accord natural justice is contrary to the principles enunciated in the abovementioned authorities and therefore devoid of any merit. For the applicant to be dismissed as a result of insufficient evidence and unsatisfactory investigation and for the Respondent on appeal to uphold ADEN’s decision based on incomplete evidence shows lack of fairness on his part and has caused injustice to the applicant. It is well within this Court’s powers in judicial review to examine the manner in which the first Respondent exercised his discretion and powers and whether the penalty is likely to affect the applicant’s livelihood.

In the outcome, for the foregoing reasons the application succeeds. Certiorari shall issue to quash the decision of the Divisional Engineer Northern contained in his letter of 5 April 2002. The respondents are ordered to pay costs to applicant in the sum of $500.00.

D. Pathik
Judge

At Suva
13 February 2003