State v Public Service Commission, Ex parte Nair [2007] FJHC 100; HBJ 02.2007 (30 March 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW ACTION NO: HBJ02 OF 2007

THE STATE

v

PUBLIC SERVICE COMMISSION
RESPONDENT

EX-PARTE:
DAMODARAN NAIR
APPLICANT

Mr. S. Chand - Counsel for the Applicant
Ms A. Uluiviti - Counsel for the Respondent

Date of Hearing: 26^th March 2007
Date of Ruling: 30^th March 2007

DECISION OF LEAVE

The applicant a civil servant was suspended without pay on 6^th March 2007 for alleged misconduct namely nepotism, discriminatory treatment or abuse of office.

He has not been officially charged for disciplinary offences as yet. The Commission says that the suspension was necessary in order to allow it to conduct an unhindered investigation in all the allegations.

Whether or not disciplinary proceedings in fact follow will depend on the outcome of the investigations. If in the course of the investigations the PSC finds evidence to substantiate its allegations then disciplinary proceedings will probably follow. There is also provision for appeal from the decision of the PSC.

IS THE DECISION FINAL?

The law is clear. Except in exceptional circumstances, the courts will not review proceedings of inferior tribunals until a final decision is reached. Here the proceedings have only reached the investigatory stage. It is granted that disciplinary powers must be exercised under the rules of natural justice but the High Court will not by its intervention take away statutory powers entrusted to a body or authority: State v. PSC ex-parte: Peniasi Kunatuba - HBJ 18 of 2002.

In Divendra Bijay v. Permanent Secretary for Education, Women and Culture - 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 proceedings against him was premature. He had to wait until charges against him had been finalized.

EXISTENCE OF ALTERNATIVE REMEDY:

Ms Uluiviti also submitted that there was an alternative remedy available so this was not a proper case for judicial review.

A court may in its discretion refuse to grant leave to apply for judicial review or set aside leave previously granted if an adequate alternative remedy exists or if such remedy existed but the applicant failed to utilize it: R. v. Secretary for State for the Home Department, ex-parte: Swati - 1986 1 WLR 477. The existence of an unused statutory right of appeal can be a strong reason to refuse leave or refuse relief at the end of a hearing. The court normally looks at the nature of the case before it, and whether the alternative remedy is suitable to resolve it. Judicial review is a remedy of last resort.

The reason for this is in two fold. First, where Parliament has provided a statutory procedure for dealing with a dispute, the courts ought not to usurp the functions of such statutory tribunals. Secondly public interest demands that judicial review should be dealt with expeditiously and to that end the number of cases proceeding to review should be filtered carefully at the leave state.

In the present case, the applicant has been suspended under Regulation 23(1) of the Public Service Regulations 1999 which empowers the Commission to suspend without salary an employee who it believes has breached the Public Service Code of Conduct and his continued presence at the department would be prejudicial to the proper management.

This is only a preliminary stage pending investigation. Disciplinary charges under Regulation 22 have not been laid as yet. Once charges are laid the applicant has the right to natural justice both at the hearing stage and if found guilty at the penalty stage.

Further the Public Service Act provides for an appeal to Public Service Appeal Board.

The applicant clearly has not exhausted his alternative remedies. He is attempting to frustrate the statutory process by invoking this application. The suspension is purely a temporary interim measure pending the initiation and conclusion of the disciplinary proceedings.

DELEGATION OF POWERS:

Mr. Chandra submitted that the PSC had no powers to suspend the applicant. He stated that such power to suspend had been delegated to the Permanent Secretary of Justice by Legal Notice 92 of 2002 which deals with the delegation of powers of the PSC. This he submitted meant that the PSC had divested itself of the power to take disciplinary proceedings against the applicant. Therefore the suspension by PSC was a nullity.

Delegation of powers does not mean that a person or authority parts with those powers. Rather it confers an authority on someone else to do things which he would otherwise not able to do. It is a convenient device to distribute some of the duties to others: Huqh v. Clarke 25 QBD 393.

Further Section 31B(d) of the Interpretation Act provides:

"when an Act confers power on a person or body (authority) to delegate a function or power -

(d) a delegation by the authority does not prevent the performance or exercise of a function or power by the authority."

Hence despite the delegation, the PSC still had powers to suspend. The suspension was proper.

CONCLUSION:

Accordingly I refuse to grant leave to issue judicial review. Application for leave and stay is dismissed with costs summarily fixed in the sum of $300.00 to be paid in twenty-one (21) days.

Having said that I urge the Commission to move quickly to decide whether disciplinary charges will be laid against the applicant. The livelihood of an officer is at stake as he is not paid his salary so urgency must be shown in this matter. Failing which serious consideration ought to be given to restoration of either whole or part of the salary under Regulation 23(4) of the Public Service Regulations.

[Jiten Singh]
JUDGE

At Suva
30^th March 2007