State v Public Service Commission, Ex parte Bola [2004] FJHC 320; HBJ0027J.2003S (10 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 27 OF 2003

Between:

THE STATE

v.

PUBLIC SERVICE COMMISSION
Respondent

Ex-parte: ISIKELI GAVIDI BOLA
Applicant

Mr. R. Matebalavu for the Applicant
Mr. S. Navoti for the Respondent

JUDGMENT

This is an application dated 12 August 2003 pursuant to leave granted 28 July 2003 for judicial review by Isikeli Gavidi Bola (the ‘applicant’) of the decision of the Public Service Commission (the ‘respondent’) to terminate his employment as a Co-operative Officer on 16 April 2003.

Decision impugned

The decision impugned, which was communicated to the applicant by memorandum dated 22 April 2003, is in the following terms:

“At its meeting held on 16/4/2003 the Commission considered the disciplinary charges made against you by the Director & Registrar of Co-operatives and your mitigation to the charges relating to the misappropriation of National Co-operative Federation Limited Funds totalling $1055.00 in violation of the sub section [1], [4] and [8] of the Section 6[1] of the Public Service Act 1999.

The Commission is satisfied that you are guilty as charged and that your appointment be terminated in accordance with Regulations 22 [1][a] of the Public Service [General] Regulations 1999.”

The Relief sought

The applicant seeks relief as follows (as in the application):

(a) Certiorari

An Order to remove the decision of the Respondent the Public Service Commission made on 16th April 2003 to terminate the employment of the Applicant as Co-operative Officer and the same be quashed.

(b) Declaration

An Order that the employment of the Applicant by the Respondent the Public Service Commission as Co-operative Officer subsists.

(c) Declaration

An Order that the decision of the Respondent the Public Service Commission to terminate the employment of the Applicant as Co-operative Officer is unlawful, void and of no effect.

(d) Reinstatement

An Order that the Applicant may be reinstated.

Alternatively:

(e) Mandamus

An Order to oblige the Respondent the Public Service Commission to reconsider its decision in accordance with the law.

(f) Declaration

An Order that the Respondent the Public Service Commission is obliged by the rules of natural justice to afford the Applicant an opportunity to be heard on its reconsideration of the matter.

(g) Damages

(h) Costs

(i) Further order or other relief that this Honourable Court may deem fit and necessary.

Grounds for judicial review

Very briefly, the grounds for judicial review are as follows:

(a) The respondent contravened Regulation 22(2) of the Public Service Regulations 1999 in not providing or failing to provide written charges to the applicant and in unilaterally terminating his employment without providing him with written charges at all.

(b) Denial of natural justice in failing to consult the applicant with regard to the allegations and in neglecting to give him the opportunity to be heard in respect of the allegations.

(c) The respondent contravened Article 33(3) of the Constitution by not providing any charge at all regarding the allegations thus depriving the applicant of his right to fair labour practice guaranteed under the said Article.

(d) The respondent contravened Article 29(3) of the Constitution by failing to have the allegations against the applicant determined within a reasonable time.

Background facts

The applicant who joined the Civil Service in 1972 was regraded a co-operative officer in the Department of Co-operatives in 1973. On 9 August 1999 he travelled from Suva to Koro Island to carry out audit duties regarding annual audit, board meeting and computer awareness. He took with him Government revenue receipt book number 36451 – 36500. He collected $1055.00 from cooperative members and issued relevant receipts from the said receipt book. He returned to Suva on 21 August 1999 and resumed duty on 25 August 1999.

He said that on 25 August 1999 a visitor from Matuku Island went away with the said sum of money which was in his brief case, mistakenly believing the applicant’s brief case as his own. The applicant accounted to the Director and Registrar of Co-operatives for the said money and receipt book about 9 March 2000 when his brief case was returned to him.

By memorandum dated 2 February 2000 the applicant was asked to hand the receipt book by 4 February 2000. The applicant was written to way back on 7 October 1999 but showed no response. On 9 March 2000, about 7 months later the applicant did account for the money and the receipt book was returned as well. However, by memorandum dated 9 May 2000 he was asked to explain why it took so long to lodge $1055 with the Clerical Officer. There was no response and a reminder was sent on 26 June 2000 to explain within 7 days ‘why you should not be disciplined for this incompetency’.

Thereafter it was on 5 March 2003 that the respondent wrote to the applicant that at its meeting on 5th March it noted “the disciplinary charges filed against you by the Director & Registrar of Co-operative, your failure in responding to the allegations and the findings/recommendation made by the Director & Registrar of Co-operatives”. The memorandum stated that the commission has directed that he ‘ be called before the Commission to negotiate your case in person before it deliberates further on the course of action to be taken’. He was required to attend on Wednesday 19th March 2003 at 10.00am. The applicant says that no charges “whatsoever was received by me either from the Director & Registrar of Co-operatives or from the Respondent regarding failure to account for aforesaid money and receipt book.”

The applicant failed to attend on 19th March so he was reminded by memorandum of 28 March 2003 to attend the Commission meeting scheduled for 2 April 2003 to speak in ‘mitigation’. This meeting he attended. Subsequently the said memorandum of 22 April 2003 was sent terminating the applicant’s employment.

Applicant’s submission

The learned counsel for the applicant submits that the sum involved was accounted for some 7 months after the applicant returned to his office in August 1999. He denied that he received any charges in relation to the matter. Then in March 2003, about 4 years later since returning from Koro Island the respondent wrote notifying the applicant to be present to mitigate at its meeting. Although he says that he did not receive such notice, he did attend and mitigate subsequently.

Counsel submits that on 5 March 2003 the respondent virtually decided to terminate the applicant’s employment under reg. 22(1)(a) Public Service (General) Regulations, 1999 before the applicant was called to mitigate. The applicant was a first offender.

It is the counsel’s submission that the termination is unlawful and the decision on which it is based is null and void and that such decision is in breach of rules of natural justice.

Counsel further submits that the decision is ‘premature’ notwithstanding the alleged admission of receipt of charges during the respondent’s meeting of 2 April 2003.

He says that there was undue delay in bringing the charges since initial failure to account which is approximately 2 years and 5 months and further 16 months before the Respondent’s decision making a total of 3 years and 9 months. Counsel submits that the applicant was lured into a false sense of security.

Counsel submits that for a person who has served the respondent for 30 years and is a first offender the decision to terminate is unreasonable.

Respondent’s submission

The applicant collected some $1055.00 from Co-operative members and issued appropriate receipts. He returned to Suva on 21 August 1999 and went to work on 25 August 1999.

After the applicant failed to account for this sum to his employer, 9 Disciplinary Charges were laid against him on 8 January 2002.

On 16 April 2002, the applicant and the respondent again met after 2 April 2003 ‘to hear further submission from the Acting Director of the Co-operative’ and ruled that the applicant’s employment be terminated.

The Respondent opposes the application, firstly, on the ground that there is ‘no arguable cause established’ and secondly, the judicial review application is ‘premature’ in that the applicant has not exhausted all alternative remedy available to him.

Consideration of the application

The circumstances in which the applicant’s employment was terminated after 30 years of service in the Government has already been stated hereabove.

I have found the written submissions very helpful in determining the issue before the Court.

Principles pertaining to judicial review

It is important to bear in mind that judicial review is not an appeal from a decision but is a review of the manner in which the decision was made. It is concerned, “not with the decision but with decision-making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power” (Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] UKHL 10; [1982] 1 W.L.R. 1155 at 1173]. Further in that case Lord Hailsham at 1160 commented on the purpose of the remedy under Order 53 as follows, which is apt:

“This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual, judicial, quasi-judicial, and, as would originally have been thought when I first practiced at the Bar, administrative. It is not intended to take away from those authorities the powers and discretion properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner.

Furthermore, it should be noted that in a judicial review the Court is “not as much concerned with the merits of the decision as with the way in which it was reached” (Evans, supra at 1174). Also, as put by Lord Templeman in Reg. v Inland Revenue Commissioners, 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”.

As was said by the Fiji Court of Appeal in The Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women & Culture ex p. Lepani Matea Civil Appeal No. ABU0018 of 1998S at 12 that the Court:

“must not do is to determine the merits of the matter, or substitute its opinion for that of the body concerned upon the merits”.

Also to be borne in mind is that one of the purposes of judicial review is to ensure that that an applicant is given a fair treatment by the decision-making body in question. The judicial review jurisdiction is supervisory in nature. The Court confines itself to the question of legality when reviewing a decision.

Consideration of grounds of review

Applying the above principles I shall now deal with the grounds of review.

It is abundantly clear from all the material before me that there are a certain unsatisfactory features relating to the applicant’s case before the penalty of termination of employment was imposed by the Respondent.

Firstly, there was along delay on the part of the respondent in finally disposing of the matter before it. The alleged breach was committed in August 1999 and decision to terminate took place in 2003. It is not clear from the evidence whether the applicant was still in employment all this time but it appears that he was at work.

On the facts and circumstances of this case it is most unfair to the applicant that it took about 4 years to finalise a matter of this nature although some blame should attach to him for not responding to the memorandums and finally making admissions.

Just as time limits under Order 53 are essential matters in a judicial review and tight time limits are set in judicial review applications, the respondent should also bear in mind time factor in taking disciplinary proceedings. Applications have been refused for even short periods of delay, one reason being that public authorities should not delay dealing with breaches where there is no justification.

With these observations and comments I shall now consider the issue before the Court.

Natural Justice

The applicant’s grounds mainly are that he was denied natural justice because the disciplinary charges were not brought to his notice.

But the Minutes, in this regard states:

“Admitted using the money and prolonged the payment that should have been done at the end of 1999 but instead repaid in early 2000.

In relation to the charges, he admitted that he had received the charges, but could not make a response since he was busy with his work, changes of senior staffs, and had to conduct election training in the Eastern Divisions.”

In this case the applicant was given the opportunity of appearing before the respondent to answer the charges. He admitted rather belatedly having been served with these charges. The applicant was quite dishonest in approaching the allegations made against him as at first denying and later admitting having received the charges.

The applicant has been guilty of serious breach of the regulations in failing to account for this large sum of money in time as it was his duty as an employee in the Public Service.

The applicant therefore fails on this ground.

On ‘rules of natural justice’ Lord Bridge in Lloyd v McMahon [1987] UKHL 5; (1987) AC 625 at 702 stated as follows and it is pertinent:

“The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which all affect the right of individual depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.”

Similar observations were made by Lord Lane in R v Commission of Racial Equality ex parte Cotterell and Rothon ( 1980) 3 All E.R 265, 271 as follows:

“Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly.

Accordingly, before assessing the fairness of the manner in which the decision complained of was taken..., it is necessary to analyse the context in which [it] was made and the nature of the decision.”

Further on ‘opportunity to be heard’ in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584-565 Mason J (as his Honour then was) remarked that:

“What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the rules under which the decision-maker is acting. ....

In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e. in accordance with procedures that are fair to the individual considered in light of the statutory requirements, the interests and purposes, whether public or private or which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.....”

In this case I cannot see that there was any denial of natural justice bearing in mind the above principles. In the words of Lord Denning MR in Regina v Secretary of State for Home Department, Ex parte Mughal 1974 1 QB (CA) 313 at 314, the “rules of natural justice must not be stretched too far,” which the applicant tried to do in this case. Subject to what I say hereafter, the applicant therefore fails on this ground.

Is it a case of Wednesbury unreasonableness?

The respondent gave the applicant the opportunity of appearing before it and heard him on the allegations and in mitigation.

According to the Minutes, among other reasons, the applicant explained that:
“Some senior officers in the Department always loan mainly from the NCF (National Co-operative Federation Ltd) given time to pay back through salary deductions or FNPF loan. He could not understand and why they had to charge him since he had paid back the money.”

The applicant was told that be would be ‘informed of a decision in due course’.

The respondent deliberated ‘and agreed to defer the case until the Director of Co-operatives is summoned to brief the Commission on the veracity in the utilization and repaying of the National Co-operatives Federation Union funds.

It appears from the evidence before me and from the annexure that neither the Director nor the Acting Director of Co-operative was present at the hearing before the Commission on 2 April 2003. Someone should have been present when the applicant appeared before it so that he could explain and enable the Commission to come to a decision after listening to the applicant, the person affected by the decision. Because the Commission decided to hear the Director in the applicant’s absence after this meeting gives rise to a sense of grievance in the mind of the applicant amounting to a denial of natural justice.

Exactly what, after listening to the Director, prompted the respondent to give the applicant, who has served his employer for over 30 years, the severest of punishment or penalty which was allowed the respondent under the Regulation, is not disclosed.

The guiding principle

The guiding principle on this subject of “reasonableness” is stated quite clearly in Associated Provincial Picture Houses Ld v Wednesbury Corporation (1988) 1 KB (C.A.) 233 AT 233-234 as follows, and it has to be borne in mind in considering the issue:

“ The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellant authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.”

Taking into account all that I have stated hereabove on this head I find that the whole approach to the applicant’s case has been Wednesbury unreasonable on the part of the respondent.

In the interests of justice I feel that there has been a certain degree of procedural impropriety. The court is always concerned to see that 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.

In any review of decision the court is concerned to evaluate fairness. The parameters of this ground of ‘procedural impropriety’ has been explained by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985) Ac 374 at 408 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.”

I have already stated hereabove the procedure adopted by the respondent and after the applicant appeared before the respondent to speak in ‘mitigation’.

The applicant could not have succeeded in convincing the respondent for what he did and no one can have any sympathy with him judging by the nature of the explanation he gave about the loss of the money and the long delay in accounting for it. There I adopt what was said by Hooper J in Regina v Ministry of Defence Ex parte Murray (The Times Law Reports, Q.B., Div. Ct. 17.12.97.p. 32) when he said:

“Judicial review was unlikely to succeed where the reasons were easily discernible albeit not expressed or where no other conclusion than that reached was realistically possible”.

It has even been held that “there is no principle of law that says that unfairness can never be ignored if a fair hearing would not have made any difference to the decision taken;” (Celik (Ali) and Celik (Hanifa) v Secretary of State for the Home Department (1991) Imm. A.R.8, C.A. referred to in CLY p.489 1991 item 1969). There Straughton L.J. said:

“Ordinarily, if there has been improper procedure, one needs to be soundly convinced that the impropriety made no difference before one should refuse to act upon it.”

Penalty

There has been an unjustified delay in concluding the disciplinary proceedings despite the fact that the applicant had not responded in good time.

It is also noticed that the applicant was still employed despite the fact that the alleged breaches were committed in 1999 only to be told four years later that his employment is terminated.

This was done in the face of the fact that a further report on the applicant was obtained from the Director of Co-operatives without hearing the applicant further on that as well as on the penalty.

The applicant should have been heard of the penalty after this further report was received. On this aspect I am persuaded by the following passage in the judgment of the Supreme Court in Mateo (supra) :

“The respondent brought in the High Court judicial review proceedings against his dismissal. By a judgment delivered on 18 March 1998 Byrne J. ordered inter alia that the dismissal be quashed on the ground of the Commission’s failure to give the respondent any opportunity to be heard and also on the ground that the penalty of dismissal was too harsh. On appeal the Court of Appeal (Casey, Savage and Dillon JJ) in a judgment delivered on 29 May 1998 confirmed Byrne J’s decision on the first ground. They pointed out that what is a fair hearing depends on the circumstances of the case; a right of personal appearance need not always be given. On the second ground they thought that, on judicial review at common law, the Court is limited to consider whether a penalty was so severe and out of proportion that no reasonable body could have imposed it. That second ground has not been argued in the Supreme Court, so we are not concerned to consider the relevant scope of the common law as to judicial review or any constitutional question such as the right to freedom from disproportionately severe punishment (article 25 (1) of the Commission of 1998).”

It is also provided in Reg 22(2) of Public Service Regulations 1999 that the respondent must comply with rules of natural justice. It provides:

“In deciding whether an employee has breached the Public Service Code of Conduct and if so what disciplinary action should be taken against the employee, the Commission must comply with the principle of natural justice.”

On this aspect I refer to the following passage from Mateo (supra) ar p4:

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. There is a presumption that natural justice applies; or, as Lord Reid put it in Wiseman v Borneman [1971] A.C.298, the courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and the additional step would not frustrate the apparent purpose of the legislation.

Just as it was the Court’s view in Mateo (supra) at p4 that “the importance of the right to natural justice.... is evidenced when one considers the long and unexplained delay before the commission took action, ” I express this same view in this case as it took about 4 years to finally conclude the disciplinary proceedings and still keep the applicant employed, thus as counsel says giving him a false sense of security.

Therefore after such a lapse of time for the commission to terminate the applicant’s employment without hearing him properly on the Director’s report and on penalty, it was clearly a denial of natural justice. Because of the procedure adopted by the Commission the imposition of the penalty of termination (Reg 22(1)(a) is really harsh for a man who has served so long with an unblemished record.

Conclusion

To conclude, the decision to terminate was Wednesbury unreasonable in all the circumstances of this case and on the observations that I have made hereabove.

Lest the applicant has suffered injustice. I would invoke the provisions of Order 53 r. 9 (4) which provides:

Where the relief sought is an order or certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may in addition to quashing it, remit the matter to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.

I therefore quash the decision and remit it to the Public Service Commission and direct it to reconsider the penalty aspect with the provisions of Reg. 22 in mind in accordance with the findings of the Court.

The application for judicial review is allowed with costs to the applicant in the sum of $250.00.

D.Pathik
Judge

At Suva
10 March 2004