State v Public Service Disciplinary Tribunal [2016] FJHC 633; HBJ12.2015 (14 July 2016)

IN THE HIGH COURT OF FIJI AT SUVA.

Judicial Review No.HBJ 12 of 2015.

IN THE MATTER of Public Service Disciplinary Tribunal.

AND

IN THE MATTER of an application by the Permanent Secretary for Ministry of Defence, National Security and Immigration for judicial review with other reliefs including an order of certiorari to quash the decision made by the Public Service Disciplinary Tribunal (The Tribunal) whereby the Tribunal has ordered that the officer be given 50% quantum of his salary with effect from 26/05/2011 until he receives his termination letter from the Permanent Secretary.

STATE v Public Service Disciplinary Tribunal.

RESPONDENT

EX-PARTE Secretary for Ministry of Defence, National Security and Immigration.

APPLICANT

Pita Turaganivalu.

INTERESTED PARTY

Counsel : Ms. T. Sharma for the Applicant.

Interested Party in person.

Mr. S. Sharma (Secretary P.S.D.T) for the Respondent.

Date of Hearing : 20^th June, 2016.

Date of Order : 14^th July, 2016

RULING

(On the application for leave for judicial review and to file the application for judicial review out of time)

[1] By way of inter-parte summons dated 04^th June, 2014 the applicant sought the following orders;

1. Leave for extension of time and leave to apply for judicial review.
2. Stay the implementation of the order of the respondent dated 4^th September, 2014.

[2] The applicant is seeking for leave to apply for judicial review under and in terms of Oder 53 Rule 3(2) of the High Court Rules 1988 and also for leave to apply for judicial review out of time.

[3] By way of judicial review the applicant intends to seek the following reliefs;

1. An order of certiorari to remove the decision of the Public Service Disciplinary Tribunal contained in the decision dated 04^th September 2014 whereby the Tribunal has ordered that the officer be given 50% quantum of his salary with effect from 26/05/2011 until he receives his termination letter from the Permanent Secretary;
2. An order of prohibition prohibiting the Public Service Disciplinary Tribunal giving effect to the decision contained in the 04^th September 2014 decision wherein the Tribunal has directed the Ministry of Defence, National Security and Immigration to pay Pita Turaganivalu;
3. Further or in the alternative, a declaration (in any event) that the decision of the Public Service Disciplinary Tribunal is unreasonable; and
4. Damages.

[4] The interested party was served with a charge sheet on 03^rd May 2011. The charges are based on three incidents namely;

Failure to hand-over the Bond money collected on a particular day to the Senior Officer for checking before the Bank lodgement resulting in a short fall of $7000.00.

Failure to comply with the Departmental Financial Instructions and to take appropriate steps to ensure that all cash were accounted for.

Failure to comply with the instruction to report to work by his immediate supervisor on the said day and failure to provide written report when directed.

[5] At the hearing the representative of the respondent informed court that the respondent would rely on the averments contained in the affidavit filed. On behalf of the applicant the learned counsel made oral submissions and also tendered written submissions.

[6] The Tribunal ordered applicant to pay the interested party 50% of his salary for the period commencing from 26^th May 2011 until the letter of termination is served on him for the reasons stated in its decision dated 04^th September 2011. It is against this order the applicant is seeking leave to apply for judicial review and also extension of time to file an application.

[7] In the case of Nair v Permanent Secretary for Education [2008] FJHC 140; HBJ02.2008 (11February 2008) it was held:

In an application for leave to apply for judicial review, the court must ask:

• Does the applicant have sufficient interest in the application;
• Is the decision susceptible to judicial review – that is, is it of a private or public nature;
• Is the decision non-reviewable in accordance with the terms of the Public Service Act;
• Are alternative remedies available to the applicant and, if so, pursued by the applicant;
• Does the material available disclose an arguable case favouring the grant of the relief sought, or what might, on further consideration, be an arguable case.

[8] The applicant is the Secretary to the Ministry of Defence, National Security and Immigration which is a public office, who is before this court representing the government. The matter before the court is in respect of payment out of public funds. Therefore, it can be said without any hesitation that the applicant has sufficient interest in the application for judicial review.

[9] No right of appeal is conferred upon the parties who are dissatisfied with the decisions of the Public Services Disciplinary Tribunal (Tribunal) by the relevant statutes. In fact in the order of the Tribunal the right to judicial review has been reserved.

[10] The most important issue to be determined is whether the applicant has an arguable case favouring the grant of the reliefs sought. In deciding this, although the court is not expected to decide the case finally on its merits it has to consider the merits to certain extend to ascertain whether the applicant has an arguable case.

[11] It is the position taken by the respondent in paragraph 16 of the affidavit in opposition dated 07^th August, 2015 that the interested party (employee) is entitled to receive 50% of his salary under Regulation 23(3) of the Public Service (General) Regulations 1999.

[12] Regulation 23(3) of the Public Service (General) Regulations 1999 is as follows;

An employee suspended from duty under subregulation (1) is not entitled to remuneration for the period of suspension.

Regulation 23(4) of the Public Service (General) Regulations 1999 is as follows;

The Commission may decide that an employee who is suspended from duty is entitled to all or part of the remuneration payable for all or part of the period of suspension.

[13] It is clear from the above provisions that Regulation 23(3) does not make the employee entitled to remunerations but it specifically disentitles him from receiving any remuneration during the period do suspension. However, Regulation 23(4) confers power upon the Public Service Commission to decide whether the employee is entitled to all or part of remuneration.

[14] I, at this stage, will not embark upon the exercise of interpreting the above regulations as to who has the power to decide whether the employee is entitled to remuneration or not and also whether the tribunal has exceeded its powers in ordering the applicant to pay 50% of the salary to the interested party. However, this raises a very important question of law to be determined at the hearing of the application for judicial review if the court grants leave.

[15] It was submitted by the learned counsel for the applicant that the Tribunal has failed to consider relevant factors. It appears from the affidavit filed by the applicant that at the time the order sought to be challenged was made the contract on promotion had already come to an end. The contract on promotion is annexed to the affidavit in support of summons marked as “OC1” according to which the contract came to an end on the 28^th June, 2013 that is more than a year before the order of the Tribunal was made. The Tribunal has ordered the applicant to pay the salary of the interested party even after expiry of the contract which too raises a very important question to be determined at the hearing.

[16] The order sought to be challenged by way of judicial review was made on 04^th September, 2014 and the application seeking leave was filed on 04^th June, 2015, after nine months from the dated of the order. There is no doubt that the delay is substantial.

[17] In explaining the delay the applicant has averred in his affidavit that between 04^th December, and the filing of this application his counsel and the Ministry have been engaged in collection and compilation of all relevant documents. This is the only reason offered by the applicant for the delay in filing the application for judicial review.

[18] Order 53 rule 4(1) of the High Court Rules 1998 provides:

Subject to the provisions of this rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant period has expired, the Court may refuse to grant-

(a) leave for the making of the application, or

(b) any relief sought on the application,

if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

[19] The claim must be made ‘promptly’ which means that in appropriate cases there may be ‘undue delay’ even when brought within three months limit. These cases are, primarily, where successful claim would cause ‘substantial hardship’ or ‘prejudice the rights’ of ‘any person’ or would be ‘detrimental to good administration’.

[20] One example for good administration is provided by a decision of the House of Lords in which, the relief was refused on a delayed application because it would have required the reopening of dairy produce quotas for several past years with great administrative complications (R. v. Dairy Produce Quota Tribunal ex p. Caswell [1990] UKHL 5; [1990] 2 AC 738). Another was where a belated challenge to a land reclamation scheme might have caused heavy financial losses [R. v. Swale BC exp. Royal Society for the Protection of Birds (1990) 2 Admin.LR 790].

[21] The courts were inclined to be generous in finding ‘good reason’ for extending the three-month period, thereby tempering the unduly severe time limit. The time taken in applying for legal aid or for ministerial intervention in a planning dispute, or in seeking to exhaust alternative remedies, may justify delay if the applicant cannot be fairly criticised in the circumstances. Even where he can, the court may allow him to proceed with the case if the issues are of general importance and need to be resolved. {Administrative Law by Wade & Forsyth (10^th Edition) at pages 561&562}.

[22] In the instant case granting leave to apply for judicial review will not be detrimental to good administration. In fact the reviewing of the order in question would be of great assistance to good administration and circumstances of this case are such no prejudice or hardship would be caused to any of the parties by granting leave to file an application for judicial review out of time.

[23] The applicant has also sought an order staying the operation of the order of the Tribunal. If the operation of the order is not stayed the application for judicial review will be only of academic interest.

[24] For the reasons stated above the order sought to be challenged must be reviewed by the court. Otherwise the government will continue to pay the interested party something what he is in fact not entitled to in law.

[25] Accordingly, I make the following orders.

ORDERS.

(1) Leave is granted to apply for judicial review of the decision of the Public Service Disciplinary Tribunal dated 04^th September 2014.
(2) Leave is also granted to file the application out of time and the applicant may file his application for judicial review within two weeks from today.
(3) Grant order staying the implementation of the order of the Public Service Disciplinary Tribunal until the final determination of the application for judicial review.
(4) No order for costs of this application.

Lyone Seneviratne,

JUDGE.

14^th July 2016.