State v Public Service Commission, ex parte Bano [2012] FJHC 30; HBJ1.2011 (20 January 2012)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

JUDICIAL REVIEW NO: HBJ 01 of 2011.

BETWEEN:

STATE

AND:

PUBLIC SERVICE COMMISSION
1^st Respondent

PUBLIC SERVICE DISCIPLINARY TRIBUNAL
2^nd Respondent

FIJI PUBLIC SERVICE ASSOSCIATION
Interested Party

EX-PARTE: SHAREEN BANO
Applicant

Appearances: Mr. A. Kohli for the applicant.
Ms. Lee for the 1st and 2nd respondents.
Date/Place of Judgment: Friday, 20th January, 2012 at Labasa.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

(Leave for Judicial Review)

CATCHWORDS:

Leave for Judicial Review – Disciplinary Tribunal's finding forming basis of termination of employment- Process of hearing- Natural Justice- Delay in hearing and finalising case- No arguable case.

The Cause

1. The applicant seeks leave of the Court to apply for judicial review of the decision making process of the 1st respondent that resulted in its decision of 27th July, 2011 to terminate her employment.
   

The Grounds/Submissions in Support

2. The applicant's counsel, Mr. Kohli stated that leave must be granted because he has an arguable case on the basis that:-
   
   • (a) There is no alternate remedy except the right to apply for judicial review;
     
   • (b) The decision making process of the 1st respondent denied the applicant the due process of natural justice when she was not given a fair hearing process by the Commission before arriving at the decision.
     
   • (c) The 1st respondent found the applicant guilty of the 4 disciplinary charges despite the fact that the particulars of the charges were defective and unlawful in the decision making process.
     
   • (d) The 1st respondent failed to give any reason how the quantum of penalty was arrived and why the manifestly harsh decision was necessary. The penalty is inconsistent and disproportionate to the charges laid.
     
   • (e) The 1st respondent failed to comply with the statutory provisions of Regulation 22 (2) and (3) of the Public Service Regulations, 1999, which warranted obligatory compliance of natural justice and procedural fairness.
     
   • (f) The 1st respondent relied upon the findings of the 2nd respondent that was flawed and lacked objectivity and transparency and impartiality. The 2nd respondent has taken into account irrelevant considerations and disregarded relevant considerations.
     
   • (g) The 1st respondent exceeded its jurisdiction and further abused its powers when the disciplinary action against the applicant was allowed to proceed beyond the mandatory 3 months time frame as required in PSC Circular No. 18 of 2007 dated 19th June, 2007.
     
   • (h) The applicant was not given any opportunity to be heard on quantum of penalty and further did not provide any lawful reasons why the manifestly harsh penalty was necessary.
     

The Grounds/Submissions in Opposition

3. The counsel for the 1st and 2nd respondent stated that there is no arguable case for which leave should be granted. The applicant was never denied natural justice and the decision reached was not unreasonable. The inquiry was conducted with the requirements of the disciplinary procedures of the Public Service (General) Regulations 1999. The applicant was given prior notice to appear at the disciplinary Tribunal hearing which she did not attend on 3 occasions. She was accorded an opportunity to prepare her own case and to be heard at the inquiry though a representative and through written submissions. The applicant was given notice to consult and retain legal representations, or other assistance. She had the opportunity to question or cross- examine any witnesses against her.
   
4. The counsel further submitted that the circular regarding the finalization of disciplinary cases within 3 months is a guideline only and failure to complete the processes does not invalidate the proceedings. Further, the applicant did not attend the hearing on three occasions.
   
5. The applicant was given an opportunity to prepare her mitigation and she submitted her mitigation through a representative.
   
6. The defective charges affect only the form and not the substance of the decision. If the charges were modified, the end result would still be the same. Unless there are matters of substance, administrative errors do not get entertained.
   

The Law and the Analysis

7. The law, succinctly, on leave, is that the applicant must have sufficient interest to bring the application, the application must have been brought without undue delay, the applicant must have exhausted all the avenues being the alternative remedy procedure before seeking leave to apply for judicial review and the applicant must have a prima facie case.
   
8. Both the parties have agreed that I only need to consider whether the applicant has an arguable case for leave to be granted.
   
9. In order to determine whether there is an arguable case, the following issues must be closely looked:-
   

(a) Denial of Natural Justice.

The applicant was accorded an opportunity to be present at the hearing and also an opportunity to present her mitigation. She failed to attend the hearing thrice. The hearing had to proceed in her absence. She was further represented by a capable member of the union who was present to cross examine the witnesses and also to put forward the mitigation orally and vide written submissions. If the applicant fails to take advantage of the due process granted to her, she does not have a subsequent right to raise that she was denied the due process.

(b) Defective Charges and Failure to give reasons for the penalty.

The charges laid against the applicant were as follows:-

"CHARGE 1

Statement of Charge

"Failed to behave honestly and with integrity in the course of employment in the public service." Such conduct constituting a breach of section 6 [1] of the Act.

Particulars of Charge

THAT YOU, Ms Shareen Bano [EDP 90455] whilst employed in the Ministry of Social Welfare, Women & Poverty Alleviation as a Welfare II Officer at the Labasa Office acted with dishonesty in that you tempered with the e-welfare system twice, first in activating a cancelled date base for your mum which caused vouchers for January to June 2010 be printed and secondly you deleted the case note stating that you are the daughter of Sachida Bi.

You committed an act which has tarnished the name of our Ministry. Such conduct constitutes disciplinary offences within the meaning of section 6 (1) of the Act whereby it states that: "An employee must behave honestly and with integrity in the course of employment in the public service."

CHARGE 2

Statement of Charge

"Failed to act with care and diligence in the course of employment in the Public Service." Such conduct constituting a breach of section 6 [2] of the Act.

Particulars of Charge

THAT YOU, Ms Shareen Nazia Bano [EDP 90445] whilst employed in the Ministry of Social Welfare, Women & Poverty Alleviation as a Welfare II Officer at the Labasa Office failed to uphold the trust bestowed upon you by the Ministry in discharging your duties with conscientiousness and carefulness in that you played with the system enabling you to activate a cancelled database for your mother and using Welfare Officer II Peni Bale's name for the change in the database. Welfare Officer Mr. Peni Bale who was indicated to have been the caseworker is very surprised on how his name has come into the picture for he does not have any idea at all regarding this case. He has been cleared by our IT office hence you have accessed the database password where user details have been changed using the database.

Such conduct constitutes disciplinary offences within the meaning of section 6 (2) of the Act whereby it states that: "An employee must act with care and diligence in the course of employment in the Public Service."

CHARGE 3

Statement of Charge

Failed to treat everyone with respect and courtesy in the course of employment in the Public Service." Such conduct constituting a breach of section 6 (3) of the Act.

Particulars of Charge

THAT YOU, Ms Shareen N Bano [EDP 90445] whilst employed in the Ministry of Social Welfare, Women & Poverty Alleviation as a Welfare II Officer at the Labasa Office failed to respect a client namely Sachida Bi in that you had been rude and used abusive language while serving her and threatened that you would cancel her welfare benefit.

Such conduct constitutes disciplinary offences within the meaning of section 6 (3) of the Act whereby it states that: "An employee must treat everyone with respect and courtesy in the course of employment in the Public Service."

CHARGE 4

Statement of Charge

"Failed to comply with all applicable Acts and subordinate legislation." Such conduct constituting a breach of section 6 (4) of the Act."

Particulars of Charge

THAT YOU, Ms. Shareen N Bano [EDP 90445] whilst employed in the Ministry of Social Welfare, Women & Poverty Alleviation as a Welfare II Officer at the Labasa office failed to comply with rules and regulations in that you ignored the fact that we are not supposed to temper with any official records or systems in place without the knowledge of our Head of Department. You did it with boldness and cunningness trying to put other innocent officers in the soup.

Such conduct constitutes disciplinary offences within the meaning of section 6 [4] of the Act which states "An employee must comply with all applicable Acts and subordinate legislation" ".

The Tribunal did not find any evidence against the applicant in respect of the 3rd charge. However, the Tribunal found evidence against the appellant in respect of the 1st, 2nd, and 4th charge. The 1st, 2nd, and 4th charges are duplicate charges, as seen from the facts of the case. However, even the evidence on only 1 charge would lead to the same result, as the crux of the finding was that the applicant was a dishonest employee who had been interfering with the data system of the employer to gain undue advantage for a family member in getting social welfare monetary benefits. One charge was sufficient to meet the result of termination as one cannot expect an employer to be any lenient than a termination as offences of this nature cannot be tolerated. I agree with Ms. Lee that even if the charges were amended, the end result would be the same.

Further, the findings of the charges itself is the reason for termination because the offence was the most serious in nature warranting termination. The final penalty was the only answer to people with such ethics.

Further the issue of penalty does not fall with the ambits of the decision making process. The penalty is the decision which is not subject to challenge in a judicial review case but the process of arriving at decision.

(c) Flawed Findings of 2nd Respondent

The 1st respondent was not wrong in relying on the findings of the 2nd respondent. The 1st respondent did not act on the allegations and terminate the applicant. It had to investigate the truth of the matter in a fair way and a hearing by the disciplinary Tribunal was the only justified process to do so. The 2nd respondent had conducted the hearing and analysed the case in a transparent and objective manner. I am not told by the applicant's counsel as to what were the irrelevant considerations that the Tribunal took into account and what relevant considerations were not taken into account. I was also not told as to how the Tribunal lacked objectivity, transparency and fairness in its decision making process. I thus find the allegations baseless and preferred only to find a leg for this application.

(d) PSC Circular No. 18 of 2007 dated 19th June, 2007.

The above circular states that no disciplinary proceeding must remain undipsosed beyond the 3 months time frame without the agreement of the Commission.

The circular is not the law but the case management guideline to assist in trying the disciplinary matters expeditiously. Moreover, the applicant had also caused the delay in not attending the hearing and so she cannot take advantage of her own delays. The circular has to be interpreted with the facts of the case. If an applicant continuously delays the finalization of the disciplinary hearing process and manages to take the matter beyond three months that does not mean that the applicant should be given advantage of her own delays. That would be too draconian for the employer, the PSC, in the circumstances.

One must not overlook that the Commission has the overriding power to agree that the matter can be tried beyond the three months period. The prerogative therefore, at the end of the day, is the employers and not the employees.

10. Having assessed the grounds based on which the applicant required leave, I find that the applicant does not at all have an arguable case and as such there is no sense is granting leave to apply for judicial review.
    

Costs

11. This application for leave was not founded on proper basis and ordinarily costs should be awarded against the applicant but looking at her unemployed status I make no order as to costs.
    

Final Orders

12. The application for leave to apply for judicial review is dismissed.
13. Each party shall bear their own costs.
    

Anjala Wati
Judge
20.01.2012

To:

1. Mr. A.Kohli, counsel for the applicant.
2. Ms. Lee, counsel for the respondent.
3. HBJ 1 of 2011.