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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW NO. HBJ 10J OF 2002S
IN THE MATTER of an application by SOLOMONE SILA KOTOBALAVU for Judicial Review under Order 53 of the High Court Rules 1988 and the High Court Amendment Rules 1994.
IN THE MATTER of the Employment of the Applicant (as the Permanent Secretary of Finance) with the Government of Fiji by the Public Service Commission.
AND
IN THE MATTER of a decision of the Public Service Commission Dated 27th March 2002.
BETWEEN:
THE STATE
v.
THE PUBLIC SERVICE COMMISSION
RESPONDENT
EX-PARTE: SOLOMONE SILA KOTOBALAVU
Permanent Secretary for Finance
APPLICANT
Counsel for the Applicant: K. Muaror: Muaror & Co.
Counsel for the Respondent: S. Navoti: Attorney-General’s Chambers
Date of Judgment: 29 March, 2004
Time of Judgment: 9.30 a.m.
JUDGMENT
The Applicant was the Permanent Secretary of Finance from 1 December 2000 until the Respondent terminated his service on 27 March 2002. He, previous to this, had been Permanent Secretary for National Planning and had served in the civil service of the Fiji Government for almost 20 years.
It is in respect of the termination of his service, that the Applicant has now applied for judicial review seeking:
“a) An Order of Certiorari that the decision of the Respondent dated 27th March 2002 be removed into this Honourable Court and quashed.
Leave was opposed by the Respondent. The Court ordered the expedited procedure permissible under Order 33 Rule 3(9) of the High Court Rules. Thereafter affidavits were filed followed by submissions. After a partial hearing on 26 February 2003, the matter was adjourned after the Applicant obtained leave of the Court to file supplementary affidavit on omissions of facts material to the proceedings. The matter was finally heard following the filing of the Respondent’s affidavit in reply, in June 2003.
In both affidavits and submissions the parties have filed voluminous documents which this Court had to shift carefully through.
Background of the Case
The case basically revolves around two actions taken by the Applicant involving 2 public officers.
The first is the Applicant’s reluctance to implement the Respondent’s decision to promote one Netani Vosa to the post of Manager, Debt and Cashflow Management Unit in the Ministry of Finance. The second, the disciplinary action the Applicant took against one Suliasi Sorovakatini at the Ministry for Agriculture, Fisheries and Forests. (“MAFF”).
On 30 May 2001 the Secretary for the Respondent (“the Secretary”) wrote to Netani Vosa informing him of his promotion to be Manager Debt and Cashflow Management Unit, in the Ministry. The appointment was effective immediately.
As a footnote to the letter, the Secretary added:
“Subsequently, please note that the acting appointment of Mr Rohit V. Parmesh as Manager Debt and Cash Flow Management Unit is hereby revoked effective from 30/05/2001.”
A week earlier, on 22 May, 2001 Mr Parmesh’s acting appointment as Manager was extended. In the memorandum to Mr Parmesh, the Secretary wrote:
“I am pleased to inform you that the Public Service Commission has agreed to extend your appointment to act as Manager (Debt and Cashflow Management) in the grade US03 with effect from 01/04/ to 31/07/01 or the appointment is revoked whichever is earlier.
You will continue to receive the full acting allowance.”
In the light of this memorandum which was addressed directly to Mr Parmesh, one would presume that the convention dictates, any change of the status quo, such as the promotion of Netani Vosa to the post after what amounted to only 7 days of Mr Parmesh’s continuation to acting in the same, that the Respondent would have informed Mr Parmesh directly by memorandum of the change. But according to the Applicant, Mr Parmesh informed him that he had not received any notification from the Respondent advising that his acting appointment was at an end, and that therefore the only information on the change was footnoted in the memorandum addressed to Netani Vosa of 30 May through the office of the Applicant. If this was indeed the case, then the omission represented an administrative weakness that only added to the climate of distrust and denigration that was to fester in the weeks ahead between the Applicant and the Secretary.
The Applicant was most displeased when he received the Respondent letter to Netani Vosa. It is evident that he withheld it while he wrote back to the Secretary on 5 June and after reviewing their previous discussions in which he had reiterated Netani Vosa’s unsuitability for the post of Director, added at paragraph 5 as follows:
“5. The decision to promote Mr N. Vosa has placed me in an untenable position and put me at a serious disadvantage in meeting professional and statutory responsibilities. I therefore, cannot allow Mr Vosa to assume the duties and responsibilities of the post as it would only add to the list of senior officers in my Ministry who have been promoted but are unable to cope with their respective responsibilities. I cannot allow this situation to worsen any further by placing officers in jobs which they are not well equipped to perform.”
The Applicant then went on to suggest a scheme as a compromise in which Netani Vosa would still be promoted to a US03 post shortly to be created in the Ministry, but which would allow the post of Director, Cashflow Management Unit to be filled by one who is more qualified for the job. He concluded that he remained available to meet to sort out any difficulties.
The Secretary responded on behalf of the Respondent in a letter dated 14 June 2001. In it he reaffirmed the finality of the Respondent’s decision and warned
“As an executive of the Public Service, you are therefore reminded that the Commission’s decision on the above remains and you are to ensure that Mr Vosa is accorded what the Commission feels he rightly deserves.”
The Applicant’s “In-Confidence” Memorandum of 27 June 2001 highlighted two important aspects relating to the Commission's decision. It, in reiterating his deep reservation of the suitability of Netani Vosa, referred specifically to certain provisions of the Public Service (General) Regulations 1999 (Regulation 5(2) (b) (c) (d) and 5(3)), which were directly relevant on the issue of merit and suitability of a candidate. These, by inference, were not considered by the Respondent. Secondly, the Applicant stated that his views appeared to have been ignored by the Respondent adding:
“It is most unusual and indeed unfortunate that my views had been completely ignored {sic: by the Commission} in making such an important decision. This in effect completely undermines my position as the Chief Executive of the Ministry of Finance who is in the best position to assess and give advise to the Commission on the staffing needs of the Ministry, particularly in the technical areas. Where this does not happen, as in this instance, the principle of consultation is compromised with counter-productive effect and far reaching consequences.”
The Applicant appeared adamant and defiant of the Respondent stating that
“...Netani Vosa’s promotion will not be effected until we can resolve this matter to our mutual satisfactions.”
In the meantime, the Applicant’s office wrote on 10 July 2001 to the Respondent requesting the extension of Rohit Parmesh’s acting appointment. This was turned down by the Respondent in its memorandum of 18 July which reiterated that Netani Vosa had been promoted to the vacant post with effect from 30 May 2001, The Applicant the next day 19 July wrote back saying that Netani Vosa’s promotion has not been effected for the reasons explained in his 27 June 2001 memorandum. He further asked the Respondent to extend Mr Parmesh’s acting. On 17 July 2001, Netani Vosa complained by letter to the Respondent that he has yet to receive his letter of promotion. In an earlier internal memorandum on 12 June 2001 on the same subject to the Deputy Secretary of Finance (Administration), Mr Vosa was advised that
“your promotion letter is being withheld on the instruction of Permanent Secretary of Finance.”
The defiant nature of the Applicant’s memorandum of 19 July 2001 necessitated, in the view of the Secretary, an urgent meeting between himself, the Applicant and the Chairman of the Respondent. The meeting took place on 31 July 2001. The agenda and the decisions taken at the meeting can be gleaned from the Secretary’s letter to the Applicant dated 3 August, which states:
“RE: MEETING – PROMOTION OF NETANI VOSA
I write to express the gratitude of the Commission for your attendance at the meeting to discuss the above which was conveyed by the Chairman Public Service Commission on 31 July 2001.
As agreed, the Commission’s decision on the promotion by {sic of} Netani Vosa remains as earlier conveyed and all are asked to honour the decision.
The meeting I assume had also taken account of all other matters which had been subject of recent communications relating to the above.
Hence, I am to confirm that the above case is now considered closed.”
It would appear that the Applicant did not move straightaway to implement Netani Vosa’s promotion and having been alerted by Mr Vosa in a letter dated 8 August 2001 to the Secretary that his promotion was still to be effected, the Secretary in a “In Confidence” memorandum of 10 August, 2001, gave the Applicant an ultimatum saying:
“You are now given until 4.30 p.m. Wednesday 15 August, 2001 to implement the Commission’s decision failing which disciplinary action will be instituted against you without further notice.”
The Applicant’s office moved on 13 August. It finally surrendered to Netani Vosa his letter of promotion to the post of Manager Debt and Cashflow Management Unit. However it amended his effective promotion date from 30 May 2001 which the Respondent had decided upon, to a new date 14 August 2001 which date one can only presume, was decided by the Applicant. The internal memorandum was copied (“cc”) to the Secretary with the note,
“please amend your records with Mr Vosa’s promotion now being effective from 14/08/01.”
The Appellant’s alleged disregard in complying with the Respondent’s decision to effect Netani Vosa’s promotion from 30 May 2001 was the final straw and on 6 September 2001, the Respondent laid disciplinary actions against the Appellant.
Suliasi Sorovakatini was Principal Accounts Officer in the Ministry of Agriculture, Fisheries and Forests (MAFF). In January 2001, the Applicant and the Ministry of Finance were informed of abuse and/or mismanagement of public funds within MAFF. According to the Applicant, there were very clear evidence of abuse brought to his attention. On 20 January 2001, the Applicant informed the Secretary by telephone of his concern. An internal audit team from the Ministry of Finance conducted investigations into MAFF affairs. The team found discrepancies amounting to serious breaches of the Financial Regulations. In some instances, in the view, of the Applicant, police investigation was warranted.
On 19 March 2001, following the report of his Ministry’s audit team and a meeting with the Respondent on 12 March, the Applicant recommended that Mr Sorovakatini be transferred away from MAFF to allow auditors to proceed with their investigations “without hinderance and also allow us to restructure the work within the (sic: MAFF) accounting section.” According to Mr Sakeasi Waqanivavalagi, Chairman of the Respondent, in his affidavit, the Applicant’s recommendation for transfer of Mr Sorovakatini was opposed by the Secretary who in his hand-written instruction to his Deputy Secretary on 20 March, said:
“Where are they intending to transfer Mr Sorovakatini?
It is evident that the move to transfer Mr Sorovakatini is a disciplinary action. This is irregular since the official has been denied his rights to defend himself.
The Chief Accounting Officer for the Ministry of Agriculture, Fisheries and Forest is the Permanent Secretary. It appears that Sorovakatini has been blamed for things he has nothing to do with.
If the Ministry of Finance is confident that it has a strong case against the officer then they should charge the officer or call the police.
The request is not justified and is not supported.”
The Respondent’s formal reply to the Applicant’s request of 19 March 2001 was conveyed in a memorandum dated 27 April 2001 and concluded:
“Your submission falls short of mentioning disciplinary action against the officer, which is the direction your submission is leading to, and I am directed to inform you that if you do not have strong evidence to support this than he should be charged for contravening Public Service Code of Conduct or alternatively the Police should be called in to investigate with a view to a prosecution in a court of law."
This Respondent’s memorandum, appears not to have reached the Applicant, according to his affidavit (para 7 (d) and (e)). On 15 May 2001, the Applicant again wrote to the Respondent in which he outlined six (6) serious allegations of breach of Regulations and Code of Conduct directly linked to Mr Sorovakatini. Under the circumstances, the Applicant strongly suggested that Mr Sorovakatini be suspended in accordance with the provisions of Regulation 23 of the Public Service Regulations 1999.
Earlier on 10 April 2001, the Applicant had by letter informed the Respondent that Mr Sorovakatini had been held responsible for a vehicle accident of which he was driving and, following the office of the Solicitor-General’s advise, the officer had been surcharged 75 percent of the costs of the repairs of the vehicle. In the same letter the Applicant renewed his plea for disciplinary proceedings against the same for breaches that his Ministry’s special audit team had already identified. The Respondent in its response of 2 May, confirmed that it would take up the matter with the Permanent Secretary of Ministry of Agriculture, Fisheries and Forests. This it did by a memorandum of 3 May. The memorandum cited the allegations and the findings of the special audit team, attaching the Report to it. The intention was for the Permanent Secretary for MAFF to lay disciplinary charges against Mr Sorovakatini. The memorandum concluded:
“I am enclosing here the Permanent Secretary for Finance Audit reports together with the memo on the accident to motor vehicle CQ 312 to enable you to consider with a view to charging Mr Sorovakatini for breach of the PSC Code of Conduct B as contained in Part II of the Public Service Commission Act 1999.
I look forward to receiving your submissions soon to be put before the Commission.”
The Permanent Secretary of MAFF did eventually lay charges against Mr Sorovakatini on 27 July 2001. There were four (4) charges relating to improper payments of overtime, unauthorised payments of advances, irregular purchases of Computers and printers and failure to properly supervise FNPF payments resulting in misappropriation of funds. The officer was given 14 days to respond.
On 13 June 2001, the Applicant wrote directly to the Permanent Secretary MAFF threatening to suspend any further Warrant to MAFF if the Permanent Secretary did not make any undertaking to ensure the duties of the Permanent Secretary, as the Chief Accounting Officer of MAFF, are strictly complied with. The Applicant also referred to Mr Sorovakatini’s case adding “Despite the seriousness of the allegations and offences committed, no appropriate action has been taken against the officer.” He then urged MAFF to agree and make it known to the Respondent that Mr Sorovakatini’s transfer would be in the best interest of all. A copy of this correspondence was sent to the Secretary, Auditor-General and the Permanent Secretary in the Prime Minister’s Office.
As a result of the Applicant’s letter of 13 July 2001 to the Permanent Secretary, MAFF, the wrote on 3 July to the Applicant. It agreed with the Applicant’s concern on the seriousness of the indiscipline and misconducts amounting to breaches of the PSC and Financial Regulations. It however expressed its disagreement at the manner proposed by the Applicant to deal with Mr Sorovakatini, and advised that the matter is best left to the Permanent Secretary of MAFF who is responsible under the law, to discipline the Ministry’s officials.
On 6 August 2001, the Applicant wrote to the Permanent Secretary MAFF informing him that the latter’s authority as Chief Accounting Officer and his ability to incur expenditures were being withdrawn until further notice, pursuant to the powers vested in the Ministry under section 5 of the Finance Act (Cap 69).
During the same period, the Applicant unilaterally acted and suspended Mr Sorovakatini’s salary. A memorandum from the Secretary of 13 August 2001 advised the Applicant that the suspension of Mr Sorovakatini’s salary was vested solely in the Respondent and that the Applicant did not have the authority to do so. The Respondent directed the Applicant to restore the officer’s salary with immediate effect. On 16 August, there apparently being no reaction to his earlier memorandum, the Secretary gave the Applicant the ultimatum that unless Mr Sorovakatini’s salary was restored by 4.00 p.m. the next day (17 August), the Respondent will have no alternative but initiate disciplinary action against the Applicant. The Appellant upon receipt of the 16 August notice, wrote back on the same day a response stating that contrary to the Respondent’s view, he believed that he possessed the powers to discipline in money matters including the withholding of funds to Ministries. In exercise of these powers the Applicant informed the Respondent that unless he received a satisfactory answer as to why no “appropriate actions” had been taken against MAFF accounts officials, he would stop allocation of funds to the Respondent.
On 23 August, the Secretary wrote back reiterating its earlier position that under the law the Respondent alone is responsible in matters of disciplinary actions for alleged breaches of the Public Service Code of Conduct. The Secretary also warned the Applicant to seek legal advice first if he intended to go ahead with stopping further release and allocation of fund to the Respondent. Finally the Secretary advised the Applicant that:
“You have continued to defy the Commission’s advise to reinstate Mr Sorovakatini’s salary and you should now take note that proposed charges against you will be considered and decided by the Commission at its next meeting.”
Six disciplinary charges or allegations relating to the breaches of Public Service Code of Conduct, were laid against the Applicant on 6 September 2001. These were subsequently reduced to five (5). At its meeting of 19 September, the Respondent found the Applicant guilty of all the five allegations. The Applicant was then given an opportunity on 26 September to appear before the Respondent and mitigate.
The Court has gone into great length to detail the background that gave rise to this proceedings to emphasise the complicated nature of the issues that intermingled and in turn were interwoven into an already existing unhealthy working environment between the Applicant and the Secretary to the Respondent. They, at the same time, are very relevant in the Court’s consideration of the reliefs being sought.
Judicial Reviews Nos. 31 & 32 of 2001
Before I deal with the substance of this case, it is useful also to refer to the earlier attempts by the Applicant to challenge the decisions of the Respondent.
Judicial Review No. 31/2002 dealt with the disciplinary action and finding of the Respondent against the Applicant for disobeying the Respondent’s directive to promote Netani Vosa with effect from 30 May 2001. The relief sought by the Applicant was an order of certiorari to quash the Respondent’s decision/findings and a declaration that the Respondent had acted in bad faith on the ground that the parties had resolved their difference at a meeting of 31 July 2001. The Court considered that given that the Applicant has yet to appear before the Respondent to plead mitigation, there had not in fact been a final “decision” made and for which the Applicant could have reviewed.
Judicial Review No. 32/01, relates to the findings of the Respondent following disciplinary charges against the Applicant for actions against Suliasi Sorovakatini of MAFF, including stopping the officer’s salary, and as well as withholding part of the September warrant intended for the Respondent. In this application, the Applicant sought an order of certiorari to quash the decision/findings of the Respondent and at the same time a declaration that the Applicant had the powers to stop Mr Sorovakatini’s salary, and a declaration that the Respondent had been negligent in the performance of its duties in failing to transfer Mr Sorovakatini after the findings of mismanagement in MAFF.
As in JR 31/01, the Court held that application was premature in that the Respondent still had to hand down its decision following its findings and only after the Appellant has been given the opportunity to mitigate.
The Court in both judicial reviews did not delve into the substantive grounds of the applications.
These issues of the allegation of bias and denial of natural justice, the Court decided, would serve no useful purpose if the Court were to rule on them, given that the actions to which the applications had been directed against, were still to run their courses.
APPLICATION FOR LEAVE
Leave was opposed by the Respondent. The Court is guided, in the first instance, by Order 53 r.3(5) which provides:
“The Court shall not grant leave unless it considers that the Applicant has sufficient interest in the matter to which the application relates.”
We have also now considerable local case law that have dealt with the Court’s discretion and powers in deciding whether to grant leave or otherwise. For example in National Union v. Sugar Industry Tribunal & Ors. (FCA No. 8/1990) the Court of Appeal said (at p.8).
“We accept at the leave stage of an application for judicial review the Court is not required to do more than decide whether the applicant (leaving aside the issue of locus standi and delay which are not at issue here) has shown prima facie an arguable case on the merits of each ground of relief.”
Three further recent decisions of the Fiji Court of Appeal in Nivis Motors v. Minister for Lands and Mineral Resources (FCA No. 17/1998), Fiji Airline Pilots’ Association v. Permanent Secretary for Labour and Industrial Relations (FCA No. 59/1997); and Mario Nagales Padua v. Public Service Commission (FCA No. 32/97), have now clearly established the principle enunciated in the National Farmers Union (supra). All that the Court needs to be satisfied with is firstly, that the evidence available to it discloses that there is an arguable case in favour of granting leave, and second that the grounds in support are not frivolous or vexatious.
There is no doubt that the Applicant satisfies the requirement of O.53 r.3(5)as to the question of locus. It was his actions which resulted in the Respondent’s decision that is now being challenged. Furthermore, the material available to this Court, discloses an arguable case in favour of granting leave sought by the Applicant. Finally, the Court is satisfied that the grounds advanced by the Applicant in support of his application are neither frivolous nor vexatious. Leave is therefore granted.
Present Proceedings
This present application seeks the review of the Respondent’s decision of 27 March, 2002, terminating the employment of the Applicant as Permanent Secretary of Finance. The termination decision followed the findings of the Respondent that resulted from the disciplinary proceedings against the Applicant in respect of the Netani Vosa and Suliasi Sorovakatini affairs and later the withholding of the money warrant to the Respondent.
The Applicant sought the following reliefs:
“a. An Order of Certiorari that the decision of the Respondent dated 27th March 2002 be removed into this Honourable Court and quashed.
The grounds on which the review application is based are set out in details at paragraph E of the Applicant’s statement in support. They can be summarised as follows:
I will deal with each ground in turn.
1. Breach of the Rules of Natural Justice and Procedural Fairness
In support of this argument, the Applicant advanced the following:
(i) the Respondent was biased acting as both the “prosecutor” and “judge” and then failing to give reasons for its decision,
(ii) the Respondent failed to give the Applicant reasonable opportunity to respond to its finding of 19 September, 2001 which finding was at the heart of the Respondent’s decision of 27th Mar 2001, and
(iii) the Respondent’s road to the decision making process culminating in the one made to terminate the employment of the Applicant on 27 March 2002, was “tarnished and tainted by events directly and/or indirectly prevailing between the Applicant at the material time frame.”
The Respondent’s finding that the Applicant was guilty of breaches of the Public Service Code of Conduct in respect of his actions against Suliasi Sorovakatini, was conveyed to the Applicant on the day it was made, 19th September 2001. The Secretary for the Respondent wrote:
“At its meeting held today, 19 September 2001, the Public Service Commission considered the five (5) allegations of breaches of the Public Service Code of Conduct filed against you on 06.09.01 by the Secretary for the Public Service, your various responses to the allegations, together with the submission from your solicitor.
The Commission found you guilty on all five (5) allegations.
Before the Commission decides on the imposition of penalty in terms of Regulations 22 (a) – (g) of the Public Service Regulations 1999, it has agreed that you be given the opportunity to mitigate before the Commission.
The Commission has decided to meet with you at 10.00 a.m. on Wednesday 26 September, 2001 at the Chairman’s Board Room, PSC, Berkley Crescent, Suva and you are allowed the choice to appear in person or be represented by another person or the combination of both.”
The 5 allegations referred to in the Secretary’s letter to the Appellant above are those contained in the “Charge letter” of 6 September 2001. Again for the sake of clarity I will set out the 5 allegations in full.
“Allegation 1
That you, Solomone Sila Kotobalavu, Permanent Secretary for Finance with the Ministry of Finance, by your willful act, did usurp the powers of the Public Service Commission by initiating disciplinary action through withholding the fortnightly salary for pay-day 09.08.2001 in respect of one Mr Suliasi Sorovakatini, Principal Accounts Officer of the Ministry of Agriculture, Fisheries and Forests, contrary to Section 6 (2) (3) (4) (5) (14) of the Public Service Act 1999.
Allegation II
That you, Solomone Sila Kotobalavu, Permanent Secretary for Finance with the Ministry of Finance, by your willful act, did usurp the powers of the Public Service Commission by withholding the fortnightly salary for pay-day 09.08.2001 in respect of one Suliasi Sorovakatini, Principal Accounts Officer with the Ministry of Agriculture, Fisheries and Forests, contrary to Section 6 (2) (3) (4) (5) (14) of the Public Service Act 1999.
Allegation 3
That you, Solomone Sila Kotobalavu, Permanent Secretary for Finance with the Ministry of Finance, by your willful act, failed to comply with the lawful instructions issued to you vide the first memorandum dated 13th August 2001, by the Secretary for the Public Service, to reinstate the fortnightly salary for pay-day 09.08.2001 in respect of one Suliasi Sorovakatini, Principal Accounts Officer with the Ministry of Agriculture, Fisheries and Forests, contrary to Section 6 (4) (5) (14) and Section 20 (4) of the Public Service Act 1999.
Allegation 4
That you, Solomone Sila Kotobalavu, Permanent Secretary for Finance with the Ministry of Finance, by your willful act failed to comply with lawful instructions issued to you vide the second memorandum dated 16th August 2001, by the Secretary for the Public Service to reinstate the fortnightly salary for pay-day 09.08.2001 in respect of one Suliasi Sorovakatini, Principal Accounts Officer with the Ministry of Agriculture, Fisheries and Forests, contrary to Section 6 (2) (3) (4) (5) (14) and Section 20 (4) of the Public Service Act 1999.
Allegation 5
That you, Solomone Sila Kotobalavu, Permanent Secretary for Finance with the Ministry of Finance, by your willful act, had acted illegally by withholding, except for SEG 1 and SEG 2 (personal emoluments and wages), the September 2001 expenditure warrant for the Public Service Commission, with the intent to pressure and improperly influence the Secretary for the Public Service with regards to the Commission decision on the allegations against one Suliasi Sorovakatini, Principal Accounts Officer with the Ministry of Agriculture Fisheries and Forests, contrary to Section 6 (2) (3) (4) (12) & (14) of the Public Service Act 1999.”
The charges against the Applicant in the case of Netani Vosa were laid on 6 September 2001. The charges read as follows:
“Allegation One
That you, Solomone Sila Kotobalavu, whilst employed as Permanent Secretary for Finance with the Ministry of Finance by your willful act failed to hand over Mr Netani Vosa his notices of promotion to the position of Manager Debt & Cashflow Management Unit conveyed by letter from the Public Service Commission dated 30th May, 2001 contrary to Section 6 (1) (2) (3) (4) and (5) of the Public Service Commission Act 1999.
Allegation Two
That you, Solomone Sila Kotobalavu, whilst employed as Permanent Secretary for Finance with the Ministry of Finance by your wilful act failed to implement Mr Netani Vosa’s promotion to the position of Manager Debt, Cashflow Management Unit from 30th May, 2001 when directed to do so by the Public Service Commission at a meeting held with the Chairperson of the Public Service Commission on 31 July, 2001 and confirmed by memorandum dated 03 August, 2001 contrary to Section 6 (1) (2) (3) (4) and (5) and Section 20 (4) of the Public Service Commission Act 1999.
Allegation 3
That you, Solomone Sila Kotobalavu, whilst employed as Permanent Secretary for Finance with the Ministry of Finance by your willful act failed to implement Mr Netani Vosa’s promotion to the position of Manager Debt, Cashflow Management Unit from 30th May, 2001 when directed to do so by the Public Service Commission at a meeting held with the Chairperson of the Public Service Commission on 31 July, 2001 and confirmed by memorandum dated 10 August, 2001 contrary to Section 6 (1) (2) (3) (4) (5) and Section 20 (4) of the Public Service Act 1999.
Allegation 4
That you, Solomone Sila Kotobalavu, whilst employed as Permanent Secretary for Finance with the Ministry of Finance by your willful act ignored and disregarded the Public Service Commission powers under Section 147 of the Constitution of the Democratic Republic of the Fiji Islands, and Section 20 of the Public Service Act 1999, when you chose to usurp the powers of the Public Service Commission by appointing Netani Laveti Vosa to the position of Manager Debt & Cashflow Management Unit with effect from 14 August, 2001 instead of 30th May, 2001 contrary to Section 6 (1) (2) (3) (4) and (5) and Section 20 (4) of the Public Service Act 1999, and clause 3 of the Legal Notice 102 of 30.07.99.
Allegation 5
That you, Solomone Sila Kotobalavu, whilst employed as Permanent Secretary for Finance with the Ministry of Finance by your willful act approved Mr Rohit Parmesh to act as Manager Debt & Cashflow Management Unit from 30th May to 13 August without the approval of the Public Service Commission contrary to Section 6 (1) (2) (3) (4) (5) and Section 20 (4) of the Public Service Act 1999, and clause 3 of the Legal Notice 102 of 30.07.99.
Allegation 6
That you, Solomone Sila Kotobalavu, whilst employed as Permanent Secretary for Finance with the Ministry of Finance by your willful act sent a memo dated 13 August, 2001 to the Secretary for the Public Service meant to improperly influence the Secretary for the Public Service Commission to amend the record of the promotion to Mr Netani Vosa to be effective from 14 August, 2001 instead of 30th May, 2001 contrary to Section 6 (1) (2) (3) (4) (12) (14) of the Public Service Act 1999.”
Public Service Code of Conduct
Section 6 of the Public Service Act 1999 represents a Code of Conduct applicable to all employees, including wage earners, of Government. For reasons which will become obvious, I set out the section in full.
“Public Service Code of Conduct
6.– (1) An employee must behave honestly and with integrity in the course of employment in the public service.
(2) An employee must act with care and diligence in the course of employment in the public service.
(3) An employee, when acting in the course of employment in the public service, must treat everyone with respect and courtesy, and without coercion or harassment of any kind.
(4) An employee, when acting in the course of employment in the public service, must comply with all applicable Acts and subordinate legislation.
(5) An employee must comply with all lawful and reasonable directions given by persons in authority in the employee's Ministry, department or parliamentary body.
(6) An employee must maintain appropriate confidentiality about dealings that the employee has with any Ministry or any member of the staff of a Minister.
(7) An employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with employment in the public service.
(8) An employee must use Government resources and assets in a proper way.
(9) A person must not, in the course of or in connection with employment in the public service, provide or misleading information in response to a request for information that is made for official purposes.
(10) An employee must not make improper use of official information or of the employee’s duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for anyone else.
(11) An employee must not, except in the course of his or her duties as an employee, or with the express authority of the chief executive of his or her Ministry, department or parliamentary body, give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.
(12) An employee must at all times behave in a way that upholds the Public Service Values and the integrity and good reputation of the public service.
(13) An employee on duty overseas must at all times behave in a way that upholds the good reputation of the State.
(14) An employee must comply with any other conduct requirement prescribed by regulations, specified in directions or required of the employee by his or her chief executive.
(15) In this section “employee” includes wage earner.”
The general principles and rules that provides the underpinnings of such encodement, is the belief that civil servants are servants of the State and owe a duty of loyal service to the State. This duty is owed in turn to the Government of the day. The theme of such a code is derived from the need for civil servants to be, and to be seen to be, honest and impartial in the exercise of their duties.
Inasfar as the case of Mr Suliasi Sorovakatini, the facts are not in dispute. Clearly there have been allegations substantiated by the Applicant’s special audit team of mismanagement and widespread abuse of authority especially of unauthorised expenditures in MAFF. Also quite clearly under our laws, the Applicant’s Ministry and its officials are fully responsible for the administration, management and control of public finances.
The emergence of mismanagement and abuse of public funds at MAFF of what has infamously become known as the “Agriculture Scam” was of great concern to everyone but especially to the Applicant and his Ministry who are charged ultimately with the duty of accounting for public moneys. He found it necessary as his duty requires of him, to act at once. He had already despatched a special audit team to investigate the allegations. The team’s report confirms the allegations. The Applicant’s next step was to ask the Respondent for the transfer of Mr Sorovakatini out of MAFF to allow a full investigation to be done unimpeded. As evident from the outline of the case above, the Respondent refused citing that a transfer was tantamount to a finding of guilt, and that Mr Sorovakatini was entitled under law, to be given the opportunity to defend himself. It is in here that the parties paths began to separate.
In the Court’s view, what essentially the Applicant was trying to achieve, was an unimpeded thorough investigation into the abuse at MAFF, and that the presence of Mr Sorovakatini who is one of the alleged perpetrators of the abuse, amidst the scene of the investigation could only hinder its progress. The recommendation that Mr Sorovakatini be transferred, the Respondent decided, quite correctly in my view, was not an option for reasons the Secretary to the Respondent explained in his comments as a footnote to the Applicant’s letter of 19 March 2001. There was however another option which was open and under the circumstances, the most appropriate, for the Respondent to consider. It should have directed that the officer take leave on full salary. In this way the Applicant’s immediate concern would have been met, the Respondent’s argument maintained, and possibly avoid the seemingly unpleasant exchanges and recriminations that were to follow.
The disciplinary charges against Mr Sorovakatini was not laid until 27 July 2001, four months after the Applicant first raised the matter with the Respondent. It could not be said that the matter was handled with any great deal of urgency by both the Respondent and later the Permanent Secretary for MAFF. In the meantime, the Applicant’s plea for the officer to be suspended as the scale of the mismanagement and abuse began to emerge, also went unheeded.
It was under these circumstances that the Applicant decided to unilaterally suspend Mr Sorovakatini’s salary and as well as MAFF’s Warrant.
There cannot be any doubt that the Applicant’s decision to unilaterally suspend the officer’s salary based on his perceived powers under the Finance Act was misconceived. Similarly, his purported withdrawal of the money warrants to both MAFF and later to the Respondent, appeared to have been done without regards to the legal and constitutional requirements that exist. If anything, the Applicant’s actions seemed ill-advised and taken without as much as first consulting with the Government’s legal advisors. His actions without the censorship of the Respondent (in the case of the suspension of salary), or the authority of the Minister and Parliament (in the withholding of the money warrants) appears irregular and may have been ultra vires in the sense of going beyond the powers bestowed on him by law.
Equally, the facts of case in the Netani Vosa episode are not in dispute. As head of and Chief Accounting Officer of the Ministry of Finance, the Appellant felt strongly that the post of Manager, Debt and Cashflow Unit in the Ministry should be filled by someone that was suitably qualified for the job. He had, prior to the decision being taken by the Respondent, made representation to the Secretary, and specifically on the unsuitability of Netani Vosa to be considered for the post.
That the Respondent went ahead and appointed Mr Vosa to the vacant post, notwithstanding the very strong objection from the Applicant, caused the latter a great deal of concern. The details of the charges laid against him summarises in effect the Applicant’s actions to delay the implementation of Mr Vosa’s promotion in the hope that he would be able to convince the Respondent to change its mind on the officer’s appointment. The matter was finally settled at the meeting of 31 July 2001. Yet in spite of the confirmation by the Secretary that its earlier decision stood and to be implemented as agreed to by all the parties at the 31st July meeting, the Applicant reneged on the agreement and partially implemented the decision. It did so by unilaterally changing the effective date for Mr Vosa’s promotion to 14 August instead of 31 May 2001, and then requesting the Respondent to amend its records accordingly.
It is normal practice in Fiji’s public service, as indeed would be the same in many other Governments with a centrally controlled Civil Service, that the Commission consult with heads of Departments and Ministries in matters such as personnel and staffing of their respective agencies. This is especially the case in technical posts where specialised skills of one kind or another are necessary. More often than not, the consultation process, in such a situation, will result in an agreement or consensus at least.
In this instance, there was no consensus between the Respondent and the Applicant. The post of Manager, Debt & Cashflow Management Unit, as the vacancy advertisement showed, was one requesting specialised skills. The Ministry’s Senior officials, including the immediate past acting Permanent Secretary, were of the view that Mr Vosa did not possess the necessary qualification or expertise. There certainly appears to be some basis for the Applicant to be aggrieved by the decision to promote Mr Vosa above his objection. Nonetheless, once the Respondent had made the decision, it was for the Applicant to implement it regardless of his objection. There seems to be no valid grounds for the decision not to be implemented, unless for example, one of the unsuccessful candidates for the position had sought the Court’s intervention to delay its implementation through the appeal process. In this case, there appears to be none. The Applicant’s position is made even more difficult by his reneging on the agreement reached on 31 July between the Chairman, the Secretary to the Respondent and the Applicant.
Under the circumstances, the Applicant’s refusal to implement straightaway the Respondent’s decision and then later partially implementing it, are properly subjects for disciplinary actions which the Respondent resorted to at the end.
Disciplinary Hearing
The Respondent heard the disciplinary charges against the Applicant on 19 September 2001. Its powers is founded under section 147(1) of the Constitution which stipulates that it has the functions to, iner alia, take disciplinary action against holders of public officers. In respect of breaches of the Public Service Code of Conduct, the Commission’s powers to discipline is vested under Part 5 of the Public Service (General) Regulations 1999.
The Applicant’s claim of being denied natural justice and procedural fairness by not having the opportunity to orally make presentation before the Respondent in its 19th September meeting. He should have been allowed to do so, according to Counsel, because of the very short time required for him to respond to the allegations, and given the vagueness of the charges.
In Kanda v. Government of Malaysia {1962} AC 322 the law Lords defined what they termed are the two rules that are the essential characteristics of natural justice namely, the rule against bias and the right to be heard. These rules are now commonly referred to as “Impartiality” and “Fairness”. Lord Denning, delivering the judgment of the Court said, at p 337:
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made against him: then he must be give a fair opportunity to correct or contradict them.”
In this instance, the Respondent argues that the “essential facts” of the case which are detailed in the 5 allegations were not in dispute. The Applicant’s replies to these allegations together with his solicitor’s submission, were put before the members of the Commission according to the Respondent, and by implication, the Applicant’s presence was not essential.
There is however an important factor that appears to have been overlooked by the Respondent and that is the role of the Secretary to the Commission. The allegations against the Applicant relates directly to the exchanges between him and the Secretary to the Respondent. While it is true that the Secretary is not a member of the Commission, he was present during the Respondent’s deliberation on 19 September 2001. It could very well be that he did not take part in the discussion. There however surely is the perception of the possibility that he would have assisted the Commission, at the very least, in the elaboration or clarification of any matters relating to the allegations against the Applicant. Under these circumstances, should not the Respondent have, in its observance of the principle of natural justice, required the presence of the Applicant?
The application of the principle of natural justice depends on the circumstances of a case. In Russel v. Duke of Norfolk (1949) 1 All ER 109, Tucker LJ referred to it (at p.118) as follows:
“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 has been from 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.”
Lord Denning in Kanda (supra) elaborated on it at p.337:
“ ..... It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough.” (emphasis added)
There is furthermore the issue of the vagueness of the charges, argued by the Applicant. The Applicant is charged with breaches of the Code of Conduct applicable to public servants. The Code is no more than pronouncements of principles and rules of conduct that, as the Court had already stated above, are intended to assist in the general administration of the public service. As a body of principles and rules therefore, they are naturally bound to attract differing interpretations. For example, in all but 1 of the 5 allegations against the Applicant, in the Suliasi Sorovakatini – related charges, and in all of the 6 allegations in the Netani Vosa – related charges, the Respondent contended that section 6(2) of the Act, representing the said Code, had been breached. Yet sub-section 2 merely states that: “An employee must act with care and diligence in the course of employment in the public service.” Surely, in the light of the generality of the stated rule; as indeed it is the case in all the other rules under Section 6, it would have been advisable and indeed prudent for the Respondent to allow the Applicant to be present at the hearing to substantiate or otherwise the charges, or at any rate, give some preciseness to the nature of the charges. This is where the question of fairness arises.
In my view, the circumstances of the case including the nature and contents of the charges, should have prevailed upon the Respondent to allow the Applicant to appear in person before it on 19th September, 2001. Its failure to do so, deprived the Respondent of conducting its 19th September inquiry according to the rules of natural justice.
The Applicant argued firstly, under this head, that the Respondent had failed to provide any reasons for its decision of 27 March 2002 and as well as its findings of 19 September 2001. As a general principle in all judicial reviews, the public body whose decision is being reviewed, is not required to always give reasons for its decision. Whether to do so or not depends on the circumstance of the case and the nature of the decision made.
The Applicant secondly submitted, that there was no procedural fairness in the handling of his disciplinary hearing having regards to the requirements of section 28 of the Constitution (the rights of charged persons to be given adequate time to and facilities to prepare a defence), and section 22(2) of the Public Service (General ) Regulations 1999 (application of the principles of natural justice in disciplinary actions).
While it is not possible to lay down hard and fast rules on what constitutes fairness or procedural fairness (see Fischer v. Paykel Ltd. [1876] 6 NZLR 130) it is, in the words of Lord Hailsham LC in the case of Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1146 at p.1160,
“.... Important to remember in every case that the purpose of the remedies is to ensure that the individual is given fair treatment by the authority to which he has been subjected and 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 matters in question. The function of the Court is to see that lawful authority is not abused by unfair treatment and not to attempt itself the task entrusted to the authority by the law.”
In the instant case, given that the Court has already found that there was denial of natural justice in the hearing before the Respondent on 19 September 2001, because of the failure to allow the Applicant to be called before it, it follows that the Appellant’s argument that the Respondent’s decision of 27 March 2002 was irregular, must succeed.
The Appellant pointed to the leading case of Associated Picture Houses Ltd. v. Wednesbury Corporation [1984] 1 KB 2223 in support of its arguments. The principle of reasonableness enunciated in the case is what is now referred to as the “Wednesbury test”. The Court will hold, under this test, a decision of the public authority illegal where it takes into account irrelevant matters or where it fails to take into account relevant matters.
The facts advanced by the Appellant to support his submission however, do not directly relate to the decision of the Respondent as it affected the Applicant. Rather, the Applicant’s arguments on the application of the Wednesbusy test, referred to the Respondent’s decision to promote Mr Vosa. In other words, the Applicant is saying that the Respondent took into account irrelevant matters and did not take into account relevant matters when it decided to promote Mr Vosa.
The thrust of the Applicant’s arguments on the application of the Wednesbury principle which focussed mainly on the Respondent’s decision to promote Mr Vosa, is misconceived. While the decision provoked the Applicant’s actions which subsequently resulted in the disciplinary proceedings, it is not directly related nor relevant to the Court’s consideration of whether the Respondent’s decision of 27 March 2002, were illegal or unlawful. At any rate, there is no evidence to support the Applicant’s contention, even if Counsel had argued on the Respondent’s decision per se. This ground fails.
ALTERNATIVE REMEDIES
The Respondent submitted that the Applicant had not exhausted all available alternative remedies and therefore the application for review was premature. Counsel pointed to the Public Service Appeals Board which the Applicant could have still availed himself of after the decision of the Respondent on 27 March 2002. However, if the Applicant’s employment had been terminated, then the process for appeals to the Board is no longer available to the Applicant. The appeal procedures, which Counsel argued, including the relevance of sections 25 and 26 of the Act, can only apply to the Respondent, if he remained an employee of the Government. The Board no longer has jurisdiction once an employee’s service is at an end.
A Mere Academic Exercise?
The Respondent then argued that given that the Applicant is no longer a civil servant either through the termination of his employment, or that he had voluntary resigned on 19 April 2002, the granting of relief sought including both the Order of certiorari to quash the decision of the Respondent of 27 March 2002, and as well as a declaration that the Respondent’s 19 September 2001 ruling was null and void, would be purely academic with no practical value. As such, it would be inappropriate for the Court to grant the Applicant such relief. Counsel referred the Court to Williams v. Home Office (No. 2) [1981] 1 All ER 1211 where the Court said (at p. 1248):
“... it is well established that it is inappropriate to grant declarations which are academic and of no practical value. In Merricks v. Nott-Bower {1964} 1 All ER 717 at 721, (1965) 1 QB 57 at 67 Lord Denning MR stated the approach which should be adopted to the granting of declarations. He said: “If a real decision is involved, which is not merely theoretical, and on which the Court’s decision give practical guidance, then the Court in its discretion can grant a declaration.”
It is further submitted by Counsel that this present proceeding do not raise a point of public importance that requires the guidance of the Court nor is there any question of general public interest. Again the Court was referred to the Fiji Court of Judgment in Richard Krishnan Naidu v. Attorney-General (FCA No. 39/1998) where at p.6 the Court said:
“There are ample authorities for the proposition that the Courts will not give advisory opinions nor will they resolve an issue where the resolution will have no practical consequence or utility. In Turner v. Pickering (1976) 1 NZLR 129, at 141 Casey J. said that it was clearly established that the power of the Court to make a declaratory order is discriminatory and this discretion will not be exercised in a Plaintiff’s favour unless the declaration maybe of some utility.”
In this case the Applicant argued that while he no longer remained as a member of the Fiji public service, the adverse consequence of his dismissal from it to his reputation, especially as he begins on a new career, would be ameliorated by the Court making the declarations sought. Counsel pointed to Peters v. Davidson (1999) 3 NLR 744 as authority for the proposition that effect on reputation, is a recognised indication for granting reliefs in judicial review. This is especially so where the Plaintiff is a prominent personality in the community or in a particular field.
There is in addition the general principle that while the issue between the parties may no longer be outstanding, the Courts will nevertheless make a decision where there is a practical advantage in doing so, and where the issue is one of general public interest. In this regard this Court considers the issue of the general use of, and reference to, the Public Service Code of Conduct as authority and source of charges in any disciplinary proceedings against employees of Government, to be of considerable public interest and importance.
The Public Service Code of Conduct only forms the central framework from which standards of conduct are further defined. In my view, the Code is not of itself a comprehensive one. It does not deal specifically with issues such as neglect of duty, failure to obey instructions or other forms of misconduct. These are properly left elsewhere to other agencies or Commission for example, to define circumstances in which initiation of disciplinary procedures are appropriate. In fact, section 7 of the Act supports this interpretation. It states:
“7. A breach of the Public Service Code of Conduct by employee is a ground for disciplinary action under the regulations of the relevant Commission or in the case of a person to whom Part 4 of the Constitution applies, for removal under that part.”
(Reference to Part 4 in this section should read “Chapter 11 Part 4”).
The section presumes that disciplinary charges arising out of breaches of the Code must be made under the relevant Regulations that apply to individual agencies or Commission, such as the Police Service Commission or the Judicial Service Commission. In the case of those that come under the Public Service Commission, the charges should properly be formulated and laid under its existing Regulations, (Public Service (General) Regulations, 1999). This Court readily concedes upon studying the existing Regulations that, except for Part 4 on “Conduct”, there is a glaring absence of any provisions that, in defining the standards of conduct required of civil servants, gives weight to and reflects upon, the principles and rules enunciated in the Code of Conduct. It is for example, interesting to compare the existing Legislation with its predecessor, the Public Service Act of 1974. There, section 12 spells out in great details what constitutes a disciplinary offence for the purpose of disciplinary proceedings. It states:
“12. Every employee commits a disciplinary offence for the purposes of disciplinary proceedings who –
(a) by any wilful act or omission fails to comply with the requirements of this Act or of any regulation thereunder or of any official instruction given under the authority of the Commission or of the Permanent Secretary of the Department in which the employee is employed;
(b) in the course of his duties disobeys, disregards, or makes wilful default in carrying out any lawful order or instructions given by any person having authority to give the order or instruction, or by word or conduct displays insubordination;
(c) is negligent, careless, indolent, inefficient, or incompetent in the discharge of his duties;
(d) behaves in a manner calculated to cause unreasonable distress to other employees or to affect adversely the performance of their duties;
(e) uses intoxicating liquors or drugs to excess or in such manner as to affect adversely the performance of his duties;
(f) improperly uses or removes property or stores for the time being in his official custody or under his control, or fails to take reasonable care of any such property or stores;
(g) otherwise than in the proper discharge of his duties directly or indirectly discloses or for private purposes uses any information acquired by him either in the course of his duties or in his capacity as an employee;
(h) absents himself from his office or from his official duties during hours of duty without leave or valid excuse or is habitually irregular in the time of his arrival or departure from his place of employment;
(i) is guilty of any improper conduct in his official capacity, or of any other improper conduct which is likely to affect adversely the performance of his duties or is likely to bring the Public Service into disrepute;
(j) is guilty of any other offence prescribed from time to time by regulations made under this Act.
There is no equivalent section in either the Act or the 1999 Regulations. Such an omission, in my view, will continue to cause difficulties and plague the disciplinary proceedings of the Public Service Commission unless changes are made to rectify it. In the meantime, in the absence of a framework of disciplinary arrangements, such as envisaged under section 12 of the 1974 Act, this Court considers charges based on section 6 of the 1999 Act as inappropriate or if proceeded with, would require the presence of the individual charged at any hearing held.
Conclusion
The disciplinary proceedings against the Applicant has been a long drawn out affair involving numerous exchanges of letters, memoranda and other written materials and documents. They resulted in 3 Judicial Reviews which have in turn generated their own reams of paperwork. The Court is grateful to both Counsel for their detailed and exhaustive submissions.
At the end of it all what has emerged and constitutes the findings of this Court are as follows:
(1) That the Applicant in his actions with regards to Suliasi Sorovakatini and MAFF may have acted ultra vires his powers under the Act;
(2) That the Applicant’s action with regards to Netani Vosa seemed to be a clear case of failure to obey reasonable instructions.
(3) That, given that the allegations were for breaches of the Code of Conduct, the Respondent had failed to observe the rule of natural justice and similarly did not observe procedural fairness by not giving the opportunity for the Respondent to appear before it at its hearing of 19 September 2001.
(4) That in any event, disciplinary proceedings wholly based on section 6 of the Act namely, breach of the Code of Conduct for Civil Servant, is inappropriate without reference to instructions that further define the circumstances to which initiation of disciplinary proceedings may be appropriate.
(5) That given the failure of the Respondent to observe the rules of natural justice at its 19 September hearing, its decision of 27 March 2002 cannot stand.
Finally, even if the Court were to find that the Respondent had acted properly and the disciplinary proceedings had found the Applicant guilty, the sanction imposed namely, the termination of employment, would appear to this Court, extremely harsh and excessive, given the circumstances the Applicant had acted, and especially after the Applicant had given in his notice of resignation. There were other sanctions available to the Respondent under section 22 of the Act, short of outright termination of service, which would have seemed more appropriate.
As to the Applicant’s claim for damages, the Court does not find any merit in his arguments.
In the final, the Court makes the following:
(1) Declaration that the Finding/Ruling of the Respondent of 19 September 2001 is null and void,
(2) Declaration that the Decision made by the Respondent of 27 March 2002 is null and void,
(3) Order of Certiorari is hereby issued quashing the same Decision of 27 March 2002.
The effect of the Order is that, the Applicant’s status remains the same, but only that he had left the public service through his letter of resignation of 15 March 2002.
Each party to bear its own costs...
F. Jitoko
JUDGE
At Suva
29 March 2004
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