State v Permanent Secretary for Women, Social Welfare & Poverty Alleviation, Ex parte Naidu [2006] FJHC 140; Judicial Review HBJ 54J of 2003 (4 May 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 54J OF 2003S

BETWEEN:

STATE

v

PERMANENT SECRETARY FOR WOMEN,
SOCIAL WELFARE & POVERTY ALLEVIATION

PUBLIC SERVICE COMMISSION

EX-PARTE: RAJEND NAIDU

Counsel for the Applicant : R.K. Naidu : Munro Leys
Counsel for the Respondents : S. Sharma : Attorney-General's Chambers

Date of Judgment 4th May, 2006
Time of Judgment: 9.30 a.m.

JUDGMENT

This is a claim for judicial review by the Applicant against four (4) decisions of the Respondents that eventually led to him leaving the public service of the country.

The first is the decision of the First Respondent of 2 October 2003 to suspend the Applicant under Regulation 23 of the Public Service Commission General Regulations 1999. The second challenge is against the decision of the Second Respondent of 4 November 2003 confirming the First Respondent's decisions to suspend the Applicant but with 40 percent only of salary while on suspension. The third is the decision of the Second Respondent on 27 May 2004 which found the Applicant guilty of 2 of the disciplinary charges laid against him. Finally the decision of the Second Respondent on 24 June 2004 to reprimand and then demote the applicant.

Factual Framework

The Applicant before resigning in June 2004, had served in the public service for almost 23 years. His entire career was with the Social Welfare Department. He is well qualified and hold a post-graduate degree in social work. At the time of his departure, he was Assistant Director, Income Support.

There are two specific incidents that contributed to the disciplinary charges being laid against the Applicant. The first happened when the new Permanent Secretary for the Ministry for Women, Social Welfare and Poverty Alleviation, ("The Ministry") which the Social Welfare Department comes under, visited the Department on 6 lune 2003. He requested that The Appellant urgently see him to discuss the Poverty Alleviation Fund. The Appellant, according to his version of the incident, was not told that the request was "urgent" and after he had his cup of tea and turned up, the Permanent Secretary had already left the premises. The second incident occurred on 30 September, 2003. The Permanent Secretary had called for a meeting of the senior officials of the Department to discuss "important and urgent issues arising from a Cabinet decision." The meeting was scheduled for 4.30p.m. The Permanent Secretary arrived for the meeting at 4.30 p.m to see the Appellant leaving to go home. The latter said he had to help his wife host some friends for dinner that evening and was not able to stay back for the meeting. There was in addition a meeting between me Permanent Secretary and the Applicant in between the two incidents on 24 June, 2003 in which the "tea incident" was raised and strong words were exchanged. Their relationship was anything but friendly.

On 2nd October 2003, the Permanent Secretary laid six charges against the Applicant under section 6 and 7 of the Public Service Act 1999 ("the Act"). The charges in the form of allegations are set out in a memorandum and state as follows:

"In accordance with sections 6 and 7 of the Public Service Act 1999 and pursuant to powers delegated to me under the Delegation of Powers of the Public Service Commission (Legal Notice No. 92 of 2002), I make the following allegations of breach of the Public Service Code of Conduct against you.
Allegation 1
That you, Mr Rajend Naidu, at or about 4.30 p.m. on 30 September 2003, failed to comply with the direction of the Permanent Secretary, who had specifically requested a meeting to discuss important and urgent issues arising from a Cabinet decision. However, you defied this direction and did not attend the meeting.
Your failure to comply with the direction of the Permanent Secretary is contrary to the Public Service Code of Conduct contained in section 6(5) of the Public Service Act 1999 which states that "an employee must comply with all lawful and reasonable directions given by persons in authority in the employee's ministry, department or parliamentary body." Such conduct constitutes a ground for disciplinary action under section 7 of the Public Service Act 1999.
Allegation 2
That you, Mr. Rajend Naidu, at or about 4.30 p.m. on 30 September 2003, while refusing to attend a meeting call by the Permanent Secretary to discuss important and urgent issues arising from a Cabinet decision, rudely and discourteously snubbed the Permanent Secretary on your way out of the office, without giving any proper, justifiable and prior excuse for not attending the meeting.
Such action on your part is contrary to the' Public Service Code of Conduct contained in section 6(3) of the Public Service Act 1999, which states that "an employee, when acting in the course of employment in the public service, must treat everyone with respect and courtesy..." Such conduct constitutes a ground for disciplinary action under section 7 of the Public Service Act 1999.
Allegation 3
That you, Mr Rajend Naidu, at or about 4.30 p.m. on 30 September 2003, refused to attend a meeting called by the Permanent Secretary to discuss important and urgent issues arising from a Cabinet decision, and rudely and discourteously snubbed the Permanent Secretary on your way out of the office, without giving and proper, justifiable and prior excuse for not attending the meeting.
Such action on your part is inconsistent with the public service values contained in section 4 of the Public Service Act 1999 which requires that public service must perform its functions in a professional way, and must deliver services fairly, effectively and courteously. It is therefore alleged that your action is contrary to the Public Service Code of Conduct contained in Section 6 (12) of the Public Service Act 1999, which states that "an employee must at all time behave in a way that upholds the Public Service Values and the integrity and good reputation of the public service." Such conduct constitutes a ground for disciplinary action under section 7 of the Public Service Act 1999.
Allegation 4
That you, Mr. Rajend Naidu, on or about 6 June 2003, refused to comply wirh a request by the Permanent Secretary to urgently meet the Permanent Secretary to discuss issues concerning Poverty Alleviation Fund, and offered an inappropriate excuse through a subordinate officer that you were having tea.
Such action on your part is contrary to the Public Service Code of Conduct contained in section 6(5) of the Public Service Act 1999, which states that an employee must comply with all lawful and reasonable directions given by persons in authority in the employee's ministry, department or parliamentary body." Such conduct constitutes a ground for disciplinary action under section 7 of the Public Service Act 1999.
Allegation 5
That you, Mr. Rajend Naidu, on or about 6 June 2003, refused to comply with a request by the Permanent Secretary to urgently meet the Permanent Secretary to discuss issues concerning Poverty Alleviation Fund, and offered the excuse through a subordinate officer that you were having tea.
Such action on your part is contrary to the Public Service Code of Conduct contained in section 6(3) of the Public Service Act 1999, which states that "an employee, when acting in the course of employment in the public service, must treat everyone with respect and courtesy..." Such conduct constitutes a ground for disciplinary action under section 7 of the Public Service Act 1999.
Allegation 6
That you, Mr. Rajend Naidu, on or about 6 June 2003, refused to comply with a request by the Permanent Secretary to urgently meet the Permanent Secretary to discuss issues concerning Poverty Alleviation Fund, and offered the excuse through a subordinate officer that you were having tea.
Such action on your part is inconsistent with the public service values contained in section 4 of the Public Service Act 1999 which requires that public service must perform its functions in a professional way, and must deliver services fairly, effectively and courteously. It is therefore alleged that your action is contrary to the Public Service Code of Conduct contained in section 6(12) of the Public Service Act 1999, which states that an employee must at all time behave in a way that upholds the Public Service Values and the integrity and good reputation of the public service." Such conduct constitutes a ground for disciplinary action under section 7 of the Public Service Act 1999.
Please be advised that if you wish to provide any reply, information or explanation in relation to the aforementioned allegations, then you are requested to do so within 14 days from the date of this memorandum.
These allegations, together with your reply (if any) and my recommendations will be sent to the Public Service Commission. Disciplinary action, in accordance with Regulation 22(a) - (g) of the Public Service (General) Regulations 1999 may be taken against you, should the Public Service Commission be satisfied that you have breached the Public Service Code of Conduct."
"Suspension
Under paragraph 2 (g) of the Delegation of Powers of the Public Service Commission (Legal Notice No. 92 of 2002), I am empowered to exercise Public Service Commission's powers contained in Regulation 23 (1) of the Public Service Commission (General) Regulations 1999 to suspend an employee from duty while disciplinary proceedings are taking place. Therefore, in accordance with the powers vested in me, under the aforesaid Delegation of Powers, I have decided that you should be suspended from duty from 3rd October 2003 pending the finalization and outcome of the disciplinary proceedings.
An employee who is suspended from duty is not entitled to remuneration for the period of suspension, but the Public Service Commission may decide to award partial or full remuneration during the period of suspension. I shall be making a submission to the Public Service Commission on this issue and will inform you of its decision in due course."

As seen from the pen-ultimate paragraph of the memorandum the Applicant was suspended from 3 October 2003 pending the final outcome of the disciplinary proceedings. The Applicant's response together with the charges were sent to the Public Service Commission ("the Commission"). On 16 October, 2003, the Commission agreed with and endorsed the Permanent Secretary's decision to suspend the Applicant. In addition, the Commission decided that during the period of suspension, the Applicant was to receive only 40 percent of his salary.

On 26 November 2003 the Applicant was notified in a letter from the Commission, of the outcome of as deliberation on the disciplinary charges against him. The letter reads:

"The Commission has considered the disciplinary charges made against you and your replies thereto and before it decides on the penalty, you are requested to appear before the Commission at its meeting to be held on Thursday 11th December, 2003 at 1.00 p.m. to mitigate on the disciplinary charges made against you."

The Commission meeting with the Applicant was subsequently postponed until 18 May 2004 at which the Applicant and his legal adviser were present and made submissions. The Commission met again on 27 May 2004 and after considering the Applicant's case, decided the Applicant guilty of Charges 2 and 5 of the allegations. The Commission informed the Applicant by letter of 4 June 2003 of its decision and invited the Applicant to attend its meeting and mitigate. This meeting was held on 24 June 2004 where the Appellant's solicitors attended and made submissions. The next day, the Appellant was informed in a letter from the Secretary of the Commission.

"(i) that your grade be reduced from Principal Welfare Officer (HW01) to Senior Welfare Officer (HW02) with effect from Monday 28th June 2004;
(ii) your reduced salary level will be $31,279 per annum with the salary scale of $23,854 - $31,279;
(iii) that you be re-instated and remain posted to the Department of Social Welfare & Poverty Alleviation;

(iv) that you are to report to the Director of Social Welfare at 8.00 a.m. Monday 28th June for allocation of duties."

On 28 June 2004, the Appellant by letter tendered his resignation with immediate effect. The resignation was accepted by the Respondents.

Amendments

There have been two amendments to the application in the course of this proceedings. These, the Court agreed to owing to the complex nature of the Applicant's challenge against a set of decisions by two separate agencies. The issue of whether all of these could have been avoided if the Appellant had heeded and complied with the Chief Justice – Practice Direction No. 1 of 1993 as argued by the Respondents, I will revert to later. It is sufficient at this juncture to emphasize that the Applicant's right to challenge any decisions by the Respondents cannot be curtailed summarily on the argument that the decisions were not final.

The Grounds for Appeal

In respect of the First and Second decisions that are being challenged, the Applicant contends that:

(i) they were manifestly disproportionate having regard to the misconduct of which the Applicant is accused;
(ii) they were beyond jurisdiction in that there were no reasonable grounds in terms of Regulation 23 (1) (b) of the Public Service General) Regulations 1999 to conclude that "the proper management of the Ministry of Women, Social Welfare and Poverty Alleviation would be prejudiced" if the Applicant was not disciplined;
(iii) alternative to (ii), that because of the unreasonable grounds on which the Respondents based their finding of prejudice to the proper management of the Ministry, no reasonable decision maker could have arrived at such a belief as basis of the Applicant's suspension;
(iv) they were made for improper purposes, in particular of issuing "interim punishment" to the Applicant pending investigation for alleged misconduct in a manner which to any reasonable decision maker, would exceed in severity of any substantive punishment imposed by way of discipline if the alleged misconduct was proved;
(v) the decisions to suspend the Applicant, reduce his salary by 60 per cent pending investigation and limit his right to travel out of Fiji pending investigation were unreasonable that no reasonable decision maker in the position of the Respondents could have arrived at them;
(vi) they failed to take into consideration natural justice and the presumption of innocence;
(vii) they were made without affording the opportunity for the Applicant to be heard, specifically on the issue of suspension and conditions attached thereto; and
(viii) they failed to take into account relevant considerations, specifically the financial implications of the Applicant being on a 40 percent salary.

As to the third decision, the Applicant contends that:

(i) it is invalid, void and of no effect as it contained errors of law. The particulars are set out at paragraph 8 of the Applicant's amended application for leave to apply for judicial review of 27 September 2004. These are:

• "(a) the Second Respondent erred in law by failing to give reasons for its decision
• (b) the Second Respondent erred in law in:
  • (i) arriving at a finding of guilt completely unsupported by the evidence presented at the hearing
  • (ii) arriving at a finding of guilt in respect of charges 2 and 5 when there was no credible evidence presented to it prvbing the charges
• (c) the Second Respondent erred in law in giving excessive weight to the single page memo of Reverend L.S. Narayan, Senior Welfare Officer, who was not present at the hearing or otherwise made available for cross-examination, the memo being the only evidence presented by the First Respondent to substantiate and prove the six disciplinary charges laid against the applicant.
• (d) the Second Respondent erred in law in failing to disclose to the Applicant the report referred to in its letter of 4 November 2003 or the results of the investigation that was supposed to have been carried out whilst he was suspended from duty.
• (e) the Second Respondent erred in law in proceeding to consider the charges which were laid, nor in the alternative, but cumulatively in respect of two minor incidents of alleged disobedience. The serialisation of the charges was a "make-weight" method of discipline motivated by improper purposes, namely to make the alleged indiscipline appear repeated and serious.
• (f) the Second Respondent erred in law in finding that the Applicant "rudely and discourteously snubbed the Permanent Secretary" in respect of the 6 June 2003 incident when it did not make any findings of fact that the Permanent Secretary had specifically requested a meeting with the Applicant which the Applicant had refused to attend.
• (g) the Second Respondent pre-determined the charges.
• (h) the Second Respondent erred in law arriving at the Third Decision having failed altogether to give consideration to or failed to give sufficient consideration or weight to the following relevant factors:
  • (i) that the First Respondent acted disproportionately in laying the disciplinary charges arising from two alleged incidents of 'defiance' of his instructions and particularly so when the First Respondent had no direct communication with the Applicant during either incident and took no steps after either incident to seek from the applicant clarification.
  • (ii) that six charges had been laid not in the alternative but cumulatively in respect of two minor incidents of alleged disobedience, the serialisation of the charges being a 'make weight' method of discipline driven by motivations other than those for which the Public Service (General) Regulations exist.
  • (iii) that the decision to lay charges against the applicant were motivated by improper purposes, namely to "add weight" to the charges the First Respondent had apparently decided to lay arising from the 30 September incident.
  • (iv) that the applicant could not have known about the meetings he was allegedly summoned to when there was no evidence presented at the hearing substantiating the alleged request for meetings on 6 June and 30 September 2003.
  • (v) that the statement of Reverend Narayan was unsworn in contrast to the sworn evidence of the Applicant presented at the hearing (who was also available for cross-examination).

(ii) it is so unreasonable that no reasonable decision-maker in that position of the Second Respondent could have come to them.

Finally, the fourth decision is challenged by the Applicant on the grounds that:

(i) it was so unreasonable that no reasonable decision-maker in the position of the second Respondent could have arrived at the same;
(ii) it was manifestly disproportionate to the charges allegedly proven; and
(iii) it was unreasonable and unfair when compared with other officers charged and found guilty of more serious offences.

Leave to Appeal

This judicial review being conducted under the expedited proceedings rules, the question of leave was also left to be argued together with the substantive hearing.

Order 53 r.3 sets out the requirements before the Court can grant leave. The leading authority is the FCA judgment in the National Farmers Union v Sugar Tribunal & Ors. CA 8/1990. The Court said, "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 and arguable case on the merits of each ground of relief."

Without going into the details of the merits of the grounds of appeal at this stage, it is sufficient for the Crown to conclude, after having read the submission by Counsel, that the Applicant has shown "prima facie and arguable case on the merits...."

Respondents' Summons to Strike Out

On 16 July 2004, the Respondent's applied to have strike out the application under Order 18 rule 18 (1) of the High Court Rules on the grounds that it disclosed no reasonable cause of action, that it is scandalous, frivolous and vexatious, and an abuse of the process of the Court.

In its affidavit in support, Emele Duituturaga, the Chief Executive Officer of the Ministry sets out the Respondents arguments for the application. According to them, the Applicant had been reinstated with effect from 28 June, 2004, albeit on demotion, and therefore the judicial review by the Applicant on the Respondents decisions to suspend him pending the conclusion of disciplinary proceedings is moot.

The Court directed that the application be heard together with the question of leave and the hearing of the judicial review proper. In the course of their submissions Counsel for the Respondents stated that they will not pursue the argument of whether the judicial application was moot, obviously aware of the position in law as regards this question, given in the FCA decision in PSC v Solomone Kotobalavu CA 31/2004.

In the light of the Respondents submissions, their summons to Strike Out is dismissed.

Respondents' Preliminary Objection

Counsel in his arguments before the Court, raised a preliminary objection to the Applicant's Further Amended Application on the ground that the Applicant has failed to exhaust the alternative remedy which was available to him under the Public Service Act 1999 ("the Act") section 25 (1) (b) of the Act provides as follows:

"Subject to this section, every employee, other than an employee on probation, may appeal to the Appeal Board under this part against -

• (a)
• (b) the taking of disciplinary action against the appellant."

Counsel contends that given that there exists express appeal mechanisms under the Act to appeal to the Public Service Appeals Board ("the Board"), the Appellant should have invoked this procedure instead of applying for judicial review. The Respondents referred to R v Secretary of State for the Home Department, Ex-parte Swati [1986] 1 WLR 477 and Harley Development Inc. v Commissioner of Inland Revenue [1996] 1 WLR 727 as authorities for the cardinal principle in administrative law that, save in exceptional circumstances, judicial review is not available if the applicant has not first exhaust all available remedies available to him. In Harley Development Inc., the Court said, at p. 736:

"...where the statute lays down a comprehensive system of appeals procedure against administrative decisions, it will only be in exceptional cases, typically an abuse of power, that the Courts will entertain an application for judicial review of a decision which has not been appealed."

In this case, the final decision of the Commission was made on 24 June 2004. This is the Fourth Decision where the Applicant was disciplined by the Commission by demotion and a reprimand. The Respondents argue that rather than appealing the decision to the Board, the Applicant chose to forgo it. Instead he resigned from office and then mounted his challenge by judicial review. In their submissions the Respondents argue that the Applicant's action amounted to an abuse of process.

Rather than dealing with this issue as a preliminary objection, I believe that it is proper that it be addressed as a defence in relation to the Applicant's challenge against the First and Second Decisions.

I will now deal with the 4 decisions in turn.

First and Second Decisions

Both parties have dealt with these decisions together and for convenience, I shall deal them likewise.

The First Decision was made by the First Respondent on 2 October 2003 to initiate disciplinary proceedings against the Applicant, and suspend him until after the proceedings. The power to suspend the Applicant is vested in the First Respondent by the Commission pursuant to delegated powers under paragraph 2 (g) of the Delegation of Powers of the Public Service Commission (Legal Notice No. 92/2002), authorising the First Respondent:

"to suspend an employee from duty under regulation 23(1) of the Public Service (General) Regulations 1999."

The initiation of the disciplinary proceedings which the 2 October 2002 memorandum from the First Respondent to the Appellant in effect amounted to, is authorized by the same delegation instrument above and specifically paragraph 2(h) allowing the First Respondent:

"to institute disciplinary proceedings against an employee for breach of the Public Service Code of Conduct."

The Commission's decision set out in a letter of 4 November 2003 to the Applicant comprises the Second Decision. The letter states:

"At its meeting held on 16th October, 2003, the Commission considered a report from the Permanent Secretary and concurred with his decision to suspend you from duties with effect from 03/10/03 to allow him to carry out investigations of the allegations made against you.
In agreeing to the suspension the Commission has further decided that you will be paid 40 per cent salary during the period of suspension.
You are further reminded that you will not have access to any office and you will not leave Fiji without the approval of the Commission."

The Second Decision is essentially a confirmation of the suspension (First Decision), but also approval for the First Respondent "to carry out investigations of the allegations made against you." It is important to note that in both of these, the powers are already vested in the First Respondent under paragraphs 2 (g) and (h) of the Delegation of Powers. The only additional decisions are that the Applicant be paid 40 percent of his salary during the period of suspension, and also during the same period, he is to refrain from visiting or accessing "any office" and "not leave Fiji without the approval of the Commission"

Whether the First and Second Decisions Are Subject to Judicial Review

The First Decision, the decision to suspend, the Respondents argue, cannot be subject for judicial review because it is interlocutory in nature and is part of the disciplinary proceedings. In their view, the Applicant should wait for the conclusion of the disciplinary proceedings before challenging both the final decision as well as the suspension decision.

Counsel referred to previous decisions of this Court in support of this argument. In Divendra Bijay v Permanent Secretary for Education, Women & Culture & Or. (HBJ 5/97) the Court held that the application for judicial review of a decision to interdict the Applicant without salary pending the determination of the disciplinary charges against him was premature and that the Applicant should wait until the charges against him had been determined. Respondents added that in Bijay's Case, the suspension was without salary. Similarly in The State v Public Service Commission, Ex-parte Peniasi Kunatuba (HBJ 31/01), the Court held that it will not, save in exceptional circumstances, judicially review the proceedings or a tribunal or public authority, until there exists a final outcome. In The State v The Secretary, Public Service Commission, Ex-parte Solomone Sila Kotobalavu (HBJ 31/01), the Court held that the fact that the Commission had found the Applicant guilty of charges laid against him did not represent "final" decision that is capable of being judicially reviewed, until the Applicant had appeared and mitigated before it. Finally, in The State v The Secretary, Public Service Commission & Ors, Exparte Anare Vuniwai (HBJ 29/98) the Court held (per Scott J.), that:

"Although the High Court of Fiji will judicially review interlocutory decisions in exceptional circumstances (see Chief Justice's Practice Note No. 1 of 1993) the assumption must be that where decisions which it sought to impugn were taken merely as a part of the process which finally determined the Applicant's right or obligation, then the usual course should be to await the final outcome of the process before applying for leave to move for judicial review."

Thus in this instance the Respondents argue, the Applicant cannot move to judicial review the First Decision, but should await the final determination of the disciplinary proceedings before he can act.

The crucial factor highlighted in all the cases referred to by the Respondents in whether a decision is available for judicial review, is its finality. In this case, the issue is whether the decision of the First Respondent to suspend the Applicant was final or, as the Respondents argue, it formed merely a part of the process of disciplinary proceedings.

The answer is simple. The powers to suspend under Regulation 23 (1) of the Public Service (General) Regulations 1999, it should be noted, had been delegated to the First Respondent. These powers now properly vests with him. Thus the First Respondent's decision of 2 October, 2003 to suspend the Appellant did not need the endorsement of the Commission. As far as this Court is concerned, the decision was final in the sense that it did not need a further seal of approval by any other office or agency. The Commission's confirmation and/or endorsement was not necessary nor was it a legal requirement. This is notwithstanding Regulation 23 (2) which reserved to the Commission the powers to cancel any suspension. Davendra Bilay (supra) was decided prior to the 1999 Delegation of Powers and in distinguished from this case.

The Second Decision, given the above conclusion by the Court that the First Decision to suspend was final, is necessarily limited to the Commission's determination that the Applicant receive only 40 percent of his salary during the period of suspension, that he be barred from accessing "any office", which I presume refers to the Department of Social Welfare offices, and that the Applicant may not leave the Country without the approval of the Commission.

The Second Decision is properly, in my view, part of what Counsel for the Respondents calls the process of disciplinary action against the Applicant.

Essentially, the Second Decision noted that the disciplinary proceedings has been instituted by the First Respondent pursuant to paragraph 2 (h) of the Delegation Instrument and the Commission has allowed him "to carry out investigations of the allegations made against you." In addition, the Commission decided that the Appellant to receive only 40 percent of his salary and barred him from his Department offices or from travelling abroad. These are disciplinary measures or actions in the sense that they represent imposition of penalty of sorts inhibiting the Applicant's rights of movement and to receive his salary.

Having decided the status of the First and Second Decisions, I will now address the question of whether the First Decision can be judicially reviewed.

The Respondents contention is that the Applicant has failed to first exhaust alternative remedy under the Act. This is the appeal mechanism under section 25 (1) (b) of the Public Service Act 1999, which states as follows:

"Subject to this section, every employee, other than an employee on probation, may appeal to the Appeal Board under this part against -

• (a) ....
• (b) the taking of disciplinary action against the appellant;
• (c) ......"

The Applicant argued the Respondents do not fall under the category of offices that are excluded from appeals under the Public Service Appeal Exclusion Order 1999 and he therefore comes under the jurisdiction of the Appeals Board. The decision to suspend they argued, "pending the conclusion of the disciplinary hearing is part and parcel of the disciplinary process." Indeed, their assertion is that suspension is only invoked when disciplinary action is taken against the employee.

The Applicant on the other hand argued that a decision to suspend is not disciplinary action. It merely is an internal administrative matter or measure taken to facilitate the investigation into the allegation. This is borne out by the provisions that authorises it. Regulation 23 (1) states:

"23(1) The Commission may suspend an employee from duty if the Commission believes -

• (a) the employee has breached the Public Service Code of Conduct; and
• (b) the proper management of the employee's Ministry or department may be prejudiced if the employee is not suspended."

Counsel for the Applicant submitted that action to suspend under the above provision is clearly not disciplinary action because it does not impose on the Commission being satisfied of anything, as compared to the actual disciplinary action provisions under Regulation 22 (1) which speaks of the Commission being "satisfied that the employee has breached the Public Service Code of conduct." Furthermore, Counsel contended that "disciplinary action" is a term of art that means the imposition of a penalty, or the proof of a matter justifying penalty. The decision therefore to suspend the Appellant (the First Decision) was according to Counsel, no more than an administrative decision pending disciplinary proceedings, which may or may not lead to disciplinary action.

I find the Applicant's argument persuasive. In the first place the Delegation of Powers instrument clearly separates the First Respondent's powers to suspend (paragraph 2 (g)), from the powers to initiate disciplinary proceedings (paragraph 2(h)). Moreover, the delegated powers to suspend as evident from paragraph 2(g)), is limited only to Regulation 23 (1) of the Public Service (General) Regulations 1999. It does not include the other provisions of Regulation 23 especially (3) and (4) that states:

"(3) An employee suspended from duty under sub regulation (1) is not entitled to remuneration for the period of suspension.
(4) The Commission may decide that an employee who is suspended from duty is entitled to all or part of the remuneration for all or part of the period of suspension."

Sub-regulations (3) and (4) above are what I would term the penalty provisions of suspension imposed on a suspended employee. The First Decision effect reflects the exercise of powers by the First Respondent and limited to suspension of the Applicant under Regulation 23 (1) while investigations are made on allegations against him. The combined effects of the exercise of the First Respondent's powers set out in paragraphs 2 (g) and (h) of the Delegation Instrument, do not in effect and in law amount, in my view, to a "disciplinary action." It is a different matter if in addition to the suspension, the First Respondent had also decided to stop or reduce the Applicant's salary or prohibited him from either having access to his office or travelling abroad. These were conditions added on by the Commission, and which any case, the First Respondent lacked the authority to exercise and was specifically excluded by the Delegation Instrument. These properly amounted to penalty provisions of the suspension which became part of the Second Decision. Having decided that the First Decision is capable of being judicially reviewed I turn first to the arguments in its support.

The Applicant's first ground is that one of irrationality. He argued that the decision to suspend was manifestly disproportionate having regards to the misconduct the Applicant was accused of. The Applicant's "offences" were that on two (2) occasions he did not report to the First Respondent when summoned. He had provided plausible explanations for each of his non-appearances. Yet the First Respondent proceeded to suspend him, pending further investigations. The decisions was disproportionate and consequently irrational. In such a situation, the Court can interfere. Counsel cited as authority R v Home Secretary ex.p. Brind [1991] UKHL 4; [1991] 1 AC 696. Lord Templeman said, at p.751:

"The English Courts must, in conformity with the Wednesbury principles (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 233) discussed by Lord Ackner, consider whether the Home Secretary has taken into account all relevant matters. These conditions are satisfied by the evidence in this case, including evidence by the Home Secretary that he took the Convention into account. If these conditions are satisfied, then it is said that on Wednesbury principles the Court can only interfere by way of judicial review if the decision of the Home Secretary is "irrational" or "perverse."

Lord Ackner at p. 759 added that:

"Mr Lester has contended that in issuing these directives the Secretary of State had used a sledgehammer to crack a nut. Of course that is a picturesque way of describing the Wednesbury "irrationality" test."

In this instance, the Applicant contends that the suspension and laying of disciplinary charges were totally disproportionate given to the two (2) alleged misconducts of not answering the summons which he was accused. In any case, at no time did the First Respondent seek a direct explanation from the Applicant for the alleged misconducts. Instead he preferred to communicate through others to the Defendant.

There are two components to the First Decision. The first part is the decision to initiate proceedings. The second is the decision suspend. The Applicant, as evident from all or his affidavits and is challenging only the first component namely decision that the Court has already found above to suspend. It is that decision that the Court has already found above to be final in the context of a judicial review.

The circumstances under which the First Respondent may suspend an employee and set out under Regulation 23 (1). The First respondent must believe that:

"(a) the employee has breached the Public Service Code of Conduct; and
(b) the proper management of the employee's Ministry or department may be prejudiced if the employee is not suspended."

These provisions, given this Court's observations on the generality and in fact vagueness of the of the Public Service Code of Conduct in The State v. PSC ex p. Solomone Kotobalavu HBJ 10/02, do allow both the First and Second Respondents very wide discretions. There only needs to be a belief, in this case, by the First Respondent, that the Applicant has breached the Code set out under section 6 of the Act and that the proper management of the department will be impeded if the Applicant is not suspended. The First Respondent is not required to be satisfied beyond a doubt.

The Applicant is accused or not meeting with the First Respondent after he had been summoned. The offences are at worst, acts of insubordination. When viewed alongside offences under the Code they are best described as drops of misdemeanours in a sea of felonies. Yet, no matter how small or trivial the offences may appear to be when compared to possibly others capable of being committed under section 6 of the Act, the fact remains that the First Respondent needs only to satisfy himself that the Applicant has breached the Code and that it is, under the circumstances, appropriate that he be suspended while disciplinary proceedings are followed through. Both sides agree that the decision to suspend an employee while investigations are made on allegation against him or her are invariably made in most cases mainly to facilitate the process.

In this case, the First Respondent, it is clear from the evidence, was satisfied and believed that the Applicant's behavior in failing to answer his summons was in breach of the Code of Conduct. His belief of such breaches are set out in the six (6) allegations listed in his 2 October 2002 letter. Having initiated the charges through these allegations, the First Respondent then decided that the Applicant be suspended "pending the finalisation and outcome of disciplinary proceedings." In deciding to suspend the First Respondent needs only to be satisfied that not to do so will impede the proper management of the department. He has tried to explain how this would be so in his affidavit. While one may express the view that the offences were trivial, the First Respondent viewed them as serious given the fact that the Applicant had been found guilty in the past of similar charges, and also in this instance the acts of "insubordination" were in full view of fellow employees.

Given all the circumstances, I am, in the end, not convinced that the First Respondent had acted irrationally in his decision to suspend the Applicant. It was not unreasonable in the Wednesbury sense. Neither was there any sense of lack of proportionately given that the period or suspension was intended not only for the process of completion of the investigations and disciplinary proceedings, but also to ensure that discipline and proper management was maintained within the department. While it may have been possible for the First Respondent to initiate complete disciplinary proceedings against the Applicant without the need to suspend him, the fact that he decided to do so in the exercise of his discretion under Regulation 23 (1), does not make the decision irrational nor unreasonable. The Court will not interfere on the merits or otherwise of the decision provided it had been arrived at following proper procedures and raising all relevant matters into account. I am satisfied that it was done in this case and I see no reason to interfere with the First Decision.

Finally with regards to the First Decision the Court has noted that the Applicant had not argued the issue of initiation of the charges by the First Respondent, which formed part of the First Decision. It is sufficient at this juncture to say that the laying of the charges of allegations as done by the First Respondent in this case, do not constitute disciplinary action taken against the Applicant. They merely form part of the process of investigation of the complaint of allegation prior to the Commission determining to act on the report of the investigation.

The Second Decision was that made by the Second Respondent ("Commission") on 4 November 2003, purporting to confirm the First Respondent's decision to suspend the Applicant, and in addition directing that the Applicant be paid only 40 per cent of his salary during the Suspension period, that he is denied access to "any office" and, prohibiting him from leaving the country without the approval of the Second Respondent.

The grounds for review are similar to those in the First Decision. First that the Second decision was manifestly disproportionate having regard to the misconduct of which the Applicant is accused. Second, that it were made for improper purposes, in particular the purpose of delivering "interim punishment" to the Applicant pending investigation. The suspension of the Applicant with 60 per cent reduction in salary and prohibition of any access to offices and from leaving Fiji were extremely severe and were so unreasonable that no reasonable decision maker in the position of the Second Respondent could have arrived at them. In arriving at the Second Decision the Second Respondent had failed to have regard to the following relevant considerations.

(i) that the Applicant is entitled as a matter of material justice to the presumption of innocence;
(ii) that the Applicant is entitled as a matter of natural justice to fair and proportionate treatment during investigation of his alleged misconduct; and
(iii) that the Applicant is entitled to his liberty to travel in and out of Fiji while suspended.

For their part, the Respondents argue that the Applicant had not exhausted the alternative remedy available under section 25 (1) (b) above. In any case, Counsel submitted that section 147 of the Constitution invests the Commission with the authority to discipline public servants, and the power to suspend pending investigations and disciplinary proceedings under Regulations 23 are part and parcel of the exercise of this Constitutional authority.

On whether the Second Decision was manifestly excessive, the Commission argued that it was for it alone to assess the gravity of the offences/allegations alleged and the Applicant's challenge in effect went to the merit of the decision.

Similarly on the issue of unreasonableness, the Second Respondent argued that the Applicant was asking the Court to assess the merit of the decision. It was not the role of the Court to consider the merits of whether the Applicant should have been suspended. Counsel referred the Chief Constable of North Wales Police v Evans [1982] UKHL 10; [1982] 1 WLR 1155 as authority for this general proposition.

Finally the Respondents submitted as follows:

"The Constitution Amendment Act 1997, the Public Service Act 1999 and the Public Service (General) Regulations 1999 give this power and responsibility to the Public Service Commission to take disciplinary action against an employee in public service, and to suspend an employee pending disciplinary proceedings... The Public Service Commission should be able to exercise this power to suspend an employee pending disciplinary proceedings in order to effectively perform its Constitutional responsibility." (emphasis added)

The gist of the Respondents submissions is the contention that the term "disciplinary action" means any action or conduct the subject matter of which concerns misconduct and where the misconduct is subsequently established against the Applicant. This, in this case, included the process of the laying of charges and allegations and investigations that followed.

Butterworths Australian Legal Dictionary defines the term "disciplinary action" as "action taken in response to misconduct or breach of discipline." In its ordinary grammatical meaning "disciplinary" is defined by the Shorter Oxford English Dictionary as "1. Relating to ecclesiastical discipline. 2. Pertaining to or promoting discipline 1598. 3. Pertaining to mental training 1644." The verb "discipline" is defined in part as "1. Trans. To subject to discipline; in earlier use, to educate, train,; later esp. to bring under control... 2. To inflict penitential discipline upon; hence, to chastise, thrash, punish M.E." The "action" is defined in part as "The process or condition of acting or doing, the exertion of energy or influence; working, agency, operation M.E."

In Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall, [1992] FCA 535; 109 ALR 361, the Federal Court in Australia deliberated on the meaning "disciplinary action" and while of the view that the term in general mean "action pertaining to or promoting discipline" or therefore capable of a very broad interpretation, it very much depends on circumstance and the context where it is used. In the special context of the definition of "injury" under its Commonwealth Employees Rehabilitation and Compensation Act, the Court held:

"(i) The phrase "disciplinary action" is to be interpreted by reference to its ordinary meaning in the context where it appears in the Act. In the context of the definition of "injury" in S.4 (1) of the Act, the phrase "disciplinary action" means reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth. The action must be directed against a particular employee and does not include an action taken by the Commonwealth as part of a general maintenance of discipline over its employees.
(ii) Disciplinary action is not lawfully taken against a member of the AFP until such time as the Commissioner determines, in accordance with the Australian Federal Police (Discipline) Regulations or the Complaints (Australian Federal Police) Act 1981 (Cth), after the provision of General Order 6 have been complied with, to take some action against a particular member in respect of a defined disciplinary offence and takes one of the steps provided for under the Discipline Regulations or the Complaints Act to give effect to that determination.
(iii) Action taken to investigate a complaint or allegation against a member of the AFP, including advising the member of the existence and nature of the complaint or allegation and interviewing the member in relation to it prior to the Commissioner determining to act on the report of the investigation, does not constitute "disciplinary action taken against the employee."

The Court also referred to the earlier decision of Re Scalzo and Australian Postal Corporation (1991) 24 ALD 83, where the Tribunal in that case rejected an earlier tribunal Re Harper approach that "disciplinary action" within the definition of "injury" under section 4 (1) of the Act "implied a response of a punitive kind to an established wrong-doing" and or "the application of a sanction after the making of a finding (not necessarily after a formal hearing) of guilty of culpability." However the tribunal in Re Scalzo added that in the end, "when provisions of a statute is being construed, it is necessary to have regards to the intentions of the legislature so far as they can be deduced from the whole of the statute."

In this case the issue of discipline of public servant is contained in Part 5 of the Public Service (General) Regulations 1999, Regulations 22 deals with "disciplinary action." It sets out the sanctions that may be imposed by the Commission if it is "satisfied that the employee has breached the Public Service Code of Conduct." They range from the termination of employment, transfer, demotion, money, penalty to reprimand. But before the Commission imposes any of these sanctions it is required under Regulation 22 (2) to comply with the principles of natural justice. In particular Regulation 22(3) states:

"(3) Without limiting sub-regulation (2), the Commission must —

• (a) allow the employee a reasonable opportunity to present information and to state his or her views about whether the employee has breached the Public Service Code of Conduct and, if so, what disciplinary action should be taken against him or her: and
• (b) consider any information presented, and any views stated by the employee."

Regulation 23 as already disclosed above, deals with suspension from duty of an employee. Regulation 23 (1) is the power to suspend an employee, which is delegated to the Permanent Secretary, and which the First Respondent exercised against the Applicant. It is to be noted that the other provisions of Regulation 23, including Regulation 23(3) on partial payment of an employee's salary, were not delegated and therefore remained with the Commission. The residual powers that remained with the Commission on the suspension of an employee were the powers to cancel the suspension at any time. Regulation 23 (2) and the decision to pay only part or all of the employee's remuneration during the period of the suspension (Regulation 23(3)(4)).

The question before this Court is whether in effect the Second Decision, made by the Second Respondent constituted what amounted to "disciplinary action" and for which the provisions or Regulation 22 and in particular sub-regulations (2) and (3) should have applied.

There can be no argument in my view, that the Second Decision properly amounts to disciplinary action taken by the Second Respondent against the Applicant. There is, first the suspension with the reduction in salary during the period of such suspension: there is prohibition placed on the Applicant to access to "any office", presumably of the Department: and he is not to travel abroad without the approval or of the Second Respondent. The measures were punitive in nature and in effect amounted to sanction imposed on the Applicant whilst investigations on the allegations were being conducted. It is inconceivable in my view that the legislators intended to allow a situation in which sanction is applied amounting in effect to punitive measures, before a finding of guilt or culpability is established.

It could very well be as argued by the Counsel for the Respondents, that the decision to suspend an employee is only a decision that is made as part of the disciplinary proceedings. But that can only be if exercised by the First Respondent pursuant to Regulation 23 (1). Where however there are measures additionally imposed on an employee such as curtailment of his or her right and freedom of movement and to receive one's remuneration as indeed imposed by the Second Respondent, then they, I believe, properly amount to disciplinary action or the kind envisaged under Regulation 22.

Having concluded the Second Decision amounted to "disciplinary action" against the Applicant then the provisions of Regulation 22 (2) and (3) should have applied. This meant that the Commission should have ensured that it complied with the principle of natural justice and towards that end, granted reasonable opportunity to the Applicant to present his case. I hasten to add, that the opportunity to be given under this so-called hybrid suspension and with "interim punishment" (a phrase suggested by Counsel for the applicant) do not necessarily suggest a formal hearing. It is clear nevertheless that the Second Decision did not comply with the provisions of Regulations 22 (2) and (3), this Court having found that it amounted to disciplinary action. It therefore follows that the action was unreasonable and/or unlawful and which resulted in the Applicant being denied natural justice. I find in favour of the Applicant with respect to the Second Decision.

Third Decision

This is the Commission's decision of 27 May, 2004 which found the Applicant guilty of two (2) out of six disciplinary charges laid against him.

The Applicant's challenge is first based on the argument that the Commission had failed to give any reasons for its decision.

There is no general rule of law which requires reasons to be given, although the desirability of giving reasons is unquestionable see The State v The Secretary PSC ex.p Anare Vuniwai (Suva HCA 29/98). Much will depend on the facts and circumstance of the case. In this instance, the letter from the Secretary of the Commission of 4 June 2004 constituting the Third Decision informed the Applicant that he had been found guilty of Charges 2 and 5. These charges were formulated into allegations which particulars were set out in details and of which response from the Applicant was sought and obtained. It is self evident that the finding of guilt under charges 2 and 5 ipso facto meant the dismissal of the Applicant's arguments and which in effect meant that the allegations were proved and which in turn became the reasons for the disciplinary action to be taken that constituted the Third Decision. I find no merit in the Appellant's arguments on the ground.

The second ground challenging the Third Decision is summarised under paragraph 8 (b), (c) and (f) and (h) of the Applicant's Amended Application of 27 September, 94. Counsel argued that the decision was unsupported by evidence and in any case whatever evidence that were before the Commission were insufficient to support a proper finding and/or the sources were not available to the Applicant to cross-examine.

It is not for this Court to venture into the examination of the merit or otherwise of a decision. That is not the intention of the judicial review. Its purpose is to ensure that public body does not act illegally, irrationally or with procedural impropriety.

It is submitted by the Respondents that the Commission had before it all the evidence including the Applicant's submission necessary to make the decision. Counsel referred to Rejfek v McElroy [1965] HCA 46; 112 CLR 517, In re: C [1963] NZLR 259 and Bater [1950] 2 All ER 458 for the proposition that in disciplinary proceedings, facts do not have to be beyond reasonable doubt. The Commission was entitled in this case, to look at the entirety of the evidence and make its decision accordingly. Insufficiency of evidence, which is denied, cannot be a ground for judicial review as it will necessarily require the Court to assess the merit of the case. The Court agrees entirely with the Respondents arguments.

I am satisfied that the Commission in arriving at the Third Decision had not make any error of law. Neither had it acted unreasonably or taken into account irrelevant factors. The written statement of one Rev. Narayan, which was admitted in evidence by the Commission was not directly challenged by the Applicant. He was quite entitled to cross-examine Rev. Narayan or any person including the First Respondent, to question the veracity of their statements. He failed to do so. He cannot now raise it as a ground to challenge the decision.

As to the other evidence of "report" whit the Appellant argued was placed before the Commission without it being disclosed to him or his Counsel, it is very clear that the so called "report" does in fact refer to the allegations and suspension decision made by the First Respondent of which the Applicant was the primary recipient.

The other ground advanced by the Applicant is based on unreasonableness that is, that given the "trivial" nature of the offences that were alleged to have been committed by the Applicant, the finding of guilt on two (2) charges was so unreasonable, that no reasonable public body would act in that way. On the facts of this case and especially in the light of past transgressions, the Court does not agree that the Commission's decision was unreasonable.

The Third Decision in any case amounting to disciplinary action, the Applicant should have availed himself the process of appeal to the Appeals Board under section 25(1)(b) of the Act. There was no reason for the Applicant not to appeal the Third Decision.

He in effect failed to exhaust his alternative remedies. An appeal would have prevented the Commission from making its Fourth Decision until its outcome.

In the end I am not persuaded by the Applicant's submission that the Third Decision be removed into this Court and quashed upon the grounds he had advanced. His application in respect of the decision fails.

Fourth Decision

This is the Commission's decision convened to the Applicant in its letter of 25 lune 2004 advising him of his re-instatement from suspension, his demotion and reduction in salary and a severe reprimand. Further the Applicant also forfeited the 50 percent of his salary imposed on him during the period of suspension. The decision was made pursuant to Regulation 22.

The grounds the Applicant relied upon to review this decision are that the decision was manifestly disproportionate to the charges and that no reasonable decision maker in the position of the Commission could have come to them, and in any case the decision was unreasonable and unfair in that the Applicant was given a far more severe penalty when compared to other civil servants charged and found guilty with more serious offences.

As to the first ground, the Respondents argue that the Applicant had appeared in person or through his legal representatives before the Commission on more than one occasion to make submissions and representation in mitigation following the finding of guilt in the Fourth Decision. Every opportunity was given to the Applicant, which he took. The Commission had also considered the fact that disciplinary actions had previously been taken against the Applicant in the past resulting in fines and severe reprimand, with warning not to re-offend. Under these circumstances, the Respondents contend that the decision of the Commission was neither disproportionate nor unreasonable.

I am not convinced given the totality of the evidence, that the Commission had acted in a way that so unreasonably that no reasonable body would have acted in that way. It had deliberated over the allegations against the Applicant after granting the opportunity to all the interested parties to be heard. This it did in accordance with the requirement of Regulation 22 (2) and (3). Thereafter, it granted the Applicant further opportunity to mitigation before it decided on what disciplinary action to be taken following the finding of guilt in respect to Charges 2 and 5. It had considered these mitigating factors alongside the Applicant's previous record of disciplinary actions and in the end made the Fourth Decision. This Court does not find any ground advanced by the Applicant that merits its intervention to review the decision.

There is however the component in the Fourth Decision of the forfeiture of the Applicant's salary during the period of suspension, which the Court had already ruled upon in relation to the Second Decision above. The Court found that the Second Decision unreasonable and unlawful. This means that the imposition of salary reduction and curtailment of the Applicant's freedom to travel were unjustified. Insofar as Orders will be made for restitution in favour of the Applicant, pursuant to the Court's finding on Second Decision, the Fourth Decision will be revised accordingly.

There remains one outstanding issue to be addressed. The Respondents had raised the issue of undue delay in respect of the Third and Fourth Decisions. They referred to the fact that the application for judicial review were made after 3 months had elapsed since the decisions were made. There is no evidence to suggest to the Court of the Applicant's tardiness in bringing his claim. In fact the delay was brought about by the very nature of the challenges and the administrative requirements to which the Respondents needed to conform with. It is, in my view, quite understandable that the Applicant should wait for the Commission's decision on his submissions, before filing his application. In any case, the Applicant's solicitors had given prior notice to the Commission that the Applicant would claim for judicial review as an option, if the decision was unfavourable to him.

Conclusion

In the end the Court finds no merit in the Applicant's claim against the First and Third Decisions of the Respondents. These claims are dismissed.

As to the Second Decision the Court finds in favour of the Applicant. For the reasons explained above, the Court holds the Second Decision a nullity and I grant the order for Certiorari quashing the Second Decision.

The Claim by the Applicant against the Fourth Decision is also dismissed except in respect of the restitution of the Applicant's salary which the Court has found in the Applicant's favour as part of the Second Decision. The Fourth Decision will be amended accordingly.

In regards to the Second Decision now quashed, Order is made that the Commission restore the Applicant's salary in full from 2nd October 2003, the day of his suspension to 28 June, 2004 when he resigned 60 per cent of unpaid portion of salary from 2nd October 2003 to 2nd March 2004 and 50 per cent from 3 March 2004 to 28 June 2004.

As each of the parties partially succeeded, each party will bear its own costs.

F. Jitoko
JUDGE

At Suva
4 May, 2006